Commentary on Article 303. Violation of the Rules for Handling Narcotic Drugs, Psychotropic or Poisonous Substances of the Criminal Code of the Republic of Kazakhstan
- 1. Violation of the rules governing the production, manufacture, processing, acquisition, storage, accounting, dispensing, transportation, import, export, shipment or destruction of narcotic drugs, psychotropic or poisonous substances, where such an act is committed by a person whose duties include compliance with the said rules —
- shall be punishable by a fine in the amount of up to one hundred and sixty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without such deprivation.
- 2. The same act resulting in the theft of narcotic drugs, psychotropic or poisonous substances or other grave consequences —
- shall be punishable by a fine in the amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or deprivation of liberty for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
The public danger of the criminal offence (Part 1 — a criminal misdemeanour; Part 2 — a crime) lies in the fact that the procedure for the lawful circulation of narcotic drugs, psychotropic and poisonous substances is violated by persons who, by virtue of their official powers, have access to them and are obliged to comply with the established rules. The commission of the said act may lead to the uncontrolled distribution of narcotic drugs, psychotropic and poisonous substances.
The object of the criminal offence is public health, while the additional object is the lawful circulation of narcotic drugs, psychotropic and poisonous substances.
The circulation of narcotic drugs and psychotropic substances means types of activities permitted and controlled in accordance with the legislation of the Republic of Kazakhstan, involving the cultivation, collection and harvesting of plants containing narcotic substances, as well as the development, production, processing, import, export, transit, transportation, shipment, acquisition, storage, distribution, sale, use and destruction of narcotic drugs and psychotropic substances.
The subject matter of the crime consists of narcotic drugs, psychotropic or poisonous substances (for information on the drugs or substances classified as narcotic, psychotropic or poisonous, see the commentary to Articles 296 and 301 of the Criminal Code).
The objective element of the criminal offence consists of violating the rules governing the production, manufacture, processing, acquisition, storage, accounting, dispensing, transportation, import, export, shipment or destruction of narcotic drugs, psychotropic or poisonous substances, where such an act is committed by a person whose duties include compliance with the said rules. The concepts of manufacture, processing, acquisition, storage, transportation and shipment of narcotic drugs, psychotropic or poisonous substances are provided in the commentary to Articles 296 and 301 of the Criminal Code.
The said rules include: the Rules for the Seizure, Accounting, Storage, Transfer and Destruction of Physical Evidence, Seized Documents, Money in National and Foreign Currencies, Narcotic Drugs and Psychotropic Substances in Criminal Cases by Courts, Prosecutor's Offices, Criminal Prosecution Bodies and Forensic Examination Bodies, approved by Resolution No. 1291 of the Government of the Republic of Kazakhstan dated 9 December 2014; the Rules for the Use of Facilities and Premises in the Sphere of Circulation of Narcotic Drugs, Psychotropic Substances and Their Precursors, approved by Order No. 334 of the Ministry of Internal Affairs of the Republic of Kazakhstan dated 11 April 2015; and the Industrial Safety Rules for Hazardous Production Facilities of the Chemical Industry, approved by Order No. 345 of the Minister for Investment and Development of the Republic of Kazakhstan dated 30 December 2014.
In paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 14 May 1998, the Supreme Court states that: “...for liability under Part One of Article 303 of the Criminal Code to arise, the mere fact of violating the rules for handling narcotic drugs, psychotropic and poisonous substances, and their analogues is sufficient, which, where necessary, must be established by conducting an appropriate expert examination. For the act to be classified under Part Two of this Article, a necessary condition is the consequence of violating these rules — the occurrence of grave consequences or the theft of narcotic drugs, psychotropic or poisonous substances, or their analogues. Causing the death of a person or grievous bodily harm through negligence must be additionally classified under the relevant Articles of the Criminal Code.”
While the position of the Supreme Court may be accepted with regard to additional classification in cases where the violation of these rules results in death through negligence, the justification for additional classification in cases of causing grievous bodily harm through negligence raises doubts.
In this regard, let us examine the other acts specified in Part 1 of Article 303 of the Criminal Code.
Production should be understood as a process aimed at the serial production of narcotic drugs, psychotropic or poisonous substances from chemical substances and/or plants, or from other narcotic drugs, psychotropic or poisonous substances.
Accounting for narcotic drugs, psychotropic or poisonous substances should be understood as a system of measures aimed at monitoring them and recording the receipt and expenditure of these drugs and substances.
Dispensing narcotic drugs, psychotropic or poisonous substances means actions aimed at transferring them from one employee to another for use in a technological or medical process.
Import and export of narcotic drugs, psychotropic or poisonous substances means their movement from one State to another State.
Destruction of narcotic drugs, psychotropic or poisonous substances should be understood as the performance of a sequence of actions aimed at changing their physical form and chemical structure, as a result of which the said drugs and substances cease to be classified as narcotic, psychotropic or poisonous.
It should be noted that the crime under consideration may be committed both through omission, when a person fails to perform the professional duties imposed on them to comply with the rules, and through action, when a person acts contrary to the established rules.
By its construction, this corpus delicti is formal, i.e. it is considered completed from the moment the violation of the rules governing the lawful circulation of narcotic drugs, psychotropic or poisonous substances begins, and the occurrence of any consequences is not required.
The subject of the criminal offence is special, i.e. a physically sane individual upon whom the obligation to comply with the rules governing the lawful circulation of narcotic drugs, psychotropic or poisonous substances has been imposed.
Paragraph 14 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states that: “The subjects of the criminal offences provided for in subparagraph 3) of Part Two of Article 298, subparagraph 1) of Part Three of Article 301 and Article 303 of the Criminal Code are both officials and non-official persons who, by virtue of their official duties, had access to narcotic drugs, psychotropic or poisonous substances, their analogues, or instruments or equipment used for their manufacture or processing, or persons to whom such substances or items had been issued for official use or transferred for safekeeping.”
The subjective element may be characterised only by an intentional form of guilt. In this regard, intent may be either direct or indirect.
A person is aware that they are committing a socially dangerous act, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence — this constitutes direct intent. If a person is aware of the public danger of violating the rules for handling narcotic drugs, psychotropic or poisonous substances, foresees the possibility of socially dangerous consequences, does not desire their occurrence but consciously permits them or treats them with indifference — this constitutes indirect intent.
The motive and purpose are optional elements of this crime and do not affect its classification.
Part 2 of Article 303 of the Criminal Code provides for such qualifying elements as the theft of narcotic drugs, psychotropic or poisonous substances, or the occurrence of other grave consequences.
The elements of theft of narcotic drugs and psychotropic substances are set out in the commentary to Article 298 of the Criminal Code.
Other grave consequences may include illness among people, contamination of the environment or premises, suspension of operations or the production cycle, etc.
By its construction, the corpus delicti provided for in Part 2 of Article 303 of the Criminal Code is material, since the occurrence of the above-mentioned consequences is required. Furthermore, this is a criminal offence involving two forms of guilt, meaning that the person is aware that they are unlawfully violating the established rules for handling narcotic drugs, psychotropic or poisonous substances and foresees the possibility of socially dangerous consequences resulting from their actions, but, without sufficient grounds, recklessly relies on preventing these consequences, or does not foresee the possibility of socially dangerous consequences resulting from their actions, although, with due attention and foresight, they should and could have foreseen such consequences.
According to paragraph 13 of the above-mentioned Resolution of the Supreme Court of the Republic of Kazakhstan: “In cases where a violation of the rules for handling narcotic drugs, psychotropic or poisonous substances, or their analogues, is committed for the purpose of their subsequent theft or is accompanied by their theft, the act must be classified cumulatively under Part Two of Article 303 and the relevant Part of Article 298 of the Criminal Code.
Persons who have allowed violations of the rules for handling narcotic drugs, psychotropic or poisonous substances, or their analogues, alongside committing criminal offences against the interests of service (acceptance of a bribe, abuse of official powers, receipt of unlawful remuneration, etc.), shall be held liable cumulatively under Article 303 and other Articles of the Criminal Code establishing liability for these criminal offences.”
The act provided for in Part 1 of Article 303 of the Criminal Code is classified as a criminal misdemeanour.
The act provided for in Part 2 of Article 303 of the Criminal Code is classified as a crime of medium gravity.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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