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Criminal Legal Measures to Suppress Drug Abuse
E.G. Gasanov
This and many other very interesting materials have been published in the book "Drug Abuse: Tendencies and Ways to Overcome It (based on materials of the Republic of Azerbaijan)" (Мoscow: "JurInfoR" Educational and Consulting Center, 1998)
The Criminal Code of the Republic of Azerbaijan establishes responsibility for the following kinds of drug-related crimes: illegal manufacture, acquisition, storage, transportation, sending by post with the aim of selling of narcotics (article 226), illegal manufacture, acquisition, storage, transportation or sending by post without the aim of selling (article 266-1), theft of narcotics (article 226-2), setting up and maintaining drug dens (article 226-3), incitement to use drugs (article 226-4), violation of rules regulating the manufacture, acquisition, storage, taking stock, distribution, transportation or sending of drugs by post (article 226-5), illegal acquisition or storage of drugs in small quantities without the aim of selling, or repeated consumption of drugs without a doctor's prescription in the course of one year following the imposition of the administrative penalty for the consumption, illegal acquisition or storage of drugs without the aim of selling them in small quantities (article 226-6), and sowing and raising drug-bearing plants banned for cultivation (articles 227, 227-1)
| Corpus Delicti | |
The above mentioned norms foresee appropriate corpus delicti, or the totality of objective and subjective features characterizing, under criminal law, socially dangerous offenses as crimes. There are 4 elements of corpus delicti: object, objective side, subject and subjective side of a crime. The absence of any of these four elements rules out the presence of corpus delicti.
| The Obligatory and Optional Features of Corpus Delicti | |
The elements of corpus delicti can be divided, by their criminal legal significance, into obligatory and optional. The obligatory features are inherent in any corpus delicti without exception and optional features are usually defined by the norms of the Special Part of the CC of the Republic of Azerbaijan. The obligatory features of corpus delicti and its elements are as follows: there must be an object of a crime present to have the element of object. An offense (active or inactive) must have occurred in order for an objective side to be present. The subject of corpus delicti must be a person of a sound mind who has reached the age of bearing criminal responsibility as specified by the criminal law. And in order for a subjective side to be present, there must be guilt. The optional features of corpus delicti and its elements are the presence of a crime subject and a crime victim, as the element of object; a causal relationship between the crime and the consequence, - place, time, situation, method, tools and means of committing the crime, as the element of objective side; for subject-a special feature characterizing a person who has committed a crime and for subjective side - the crime motive and the crime aim. All obligatory and some optional features are inherent in corpus delicti of drug - related crimes.
These listed drug-related crimes are assembled together in Chapter X of the Special Part of the CC of the Republic of Azerbaijan entitled "Crimes Against Public Safety and Public Order" on the basis of the commonality of the object these crimes infringe upon.
The crime object in the criminal law is what a crime encroaches upon, what it causes or can cause harm to. So, recognized under the object of crime are "social relations protected by the criminal law and meant to embody the given social and economic structure, beneficial and suitable to the ruling class, the most important and valuable, applying to the material basis or to the ideological superstructure, typical, i.e. represented in a generalized form. Being a purely social category these social relations have nothing material about them that crime usually encroaches upon. Their subject is a society as a whole and the infringement upon them means exclusively their violation." [074].
The most widespread theory of criminal law based on existing criminal legislation is the trinomial or three-point classification of the object. It is divided into the three types: 1) general; 2) generic (group, special) and 3) immediate (specific). This classification however is not universal, as it depends on the way law-makers organize the Special Part of the CC and on the actual contents of certain groups and types of social relations which the criminal law protects from criminal encroachments. This is why there possibly may be other classifications of the object.
| The General Crime Object | |
The general crime object covers all social relations protected by the criminal legislation. Its definition fully coincides with that of the object of crime cited above.
The generic crime object is a group of homogeneous social relations which may be encroached upon by crimes registered in norms which are included in one and the same chapter of the Special Part of the CC of the Republic of Azerbaijan.
The immediate crime object is one type of social relations that may be infringed upon by one or several crimes.
| The Generic Crime Object | |
The contents of the generic object can as a rule be understood from the titles of certain chapters of the Special Part in the CC of the Republic of Azerbaijan. But this is not always the case. The title "Crimes Against Public Safety and Public Order" of Chapter X of the CC's Special Part is a graphic illustration. This Chapter seems to include all the above mentioned articles featuring the responsibility for drug-related crimes. However its analysis shows that some crimes, drug-related crimes among others, the responsibility for which is stipulated by norms included in this Chapter, infringe upon such a generic object as people's health rather than upon public safety and public order. On the list of such crimes, apart from drug-related, there is also the infringement, the responsibility for which is stipulated by article 223 (illegal medical treatment) or article 224 (the violation of rules for combating epidemics) of the CC of the Republic of Azerbaijan.
As it turns out Chapter X of the Special part of the Criminal Code of the Republic of Azerbaijan and a similar section of the 1960 CC of the Russian Soviet Federative Socialist Republic (the RSFSR), which have in retrospect common legal roots and bases, if compared, seem to be similar in contents but differ essentially in terms of their titles. The title of Chapter X of the Special Part of the 1960 CC of the RSFSR has a reference to people's health in it, whereas Chapter X of the Special Part of the Azerbaijanian CC has none.
If this gap in the law is to be filled, the word combination "people's health" should be included in the title of Chapter X of the Special Part of the Azerbaijanian CC. This title should then read: "Crimes Against Public Safety, Public Order and People's Health." Before more essential changes are introduced into the CC of the Republic of Azerbaijan, this proposal, if heeded, will help express more precisely the essence and the contents of crimes, referred to the articles of Chapter X. From the standpoint of criminal law an accent will be put, on the need to combat crimes, including drug-related crimes against people's health.
A clearer understanding of the definition of people's health as a generic object of the discussed group of crimes is needed. Such categories as "health", "health of an individual", and "people's health" in the biological, social and criminal senses should be examined.
| Health, Health of an Individual, People's Health | |
The Preamble to the World Health Organization Charter defines health as "the state of a full physical, mental and social well-being rather than the mere lack of diseases and physical defects"[075].
A more precise definition of health is a" harmonious unity of biological qualities conditioned by inherent and acquired biological and social phenomena"[076].
There is a difference between the notions "health of an individual" and "people's health". It is impossible to give an exact definition of the notion "health of an individual" as it is associated with a wide range of variations in man's vital functions and the ability of the human organism to adjust to the environment"[077].
The health of the population as a whole or the health of a group of people (public health) is determined by "a set of sanitary-statistical indications: the rate of birth, mortality, sickness, physical fitness, the average life span, etc. Public health is influenced by biological, natural and social factors"[078].
An analysis of these terms indicates that health as a uniform category is approached mainly from the biological and social angles. Instead of defining such categories as "health of an individual" and "people's health", all that the quoted notions contain, are factors which make it possible to assess the state of people's health.
Taking into consideration these definitions, health, can and must be defined as a biological and social category that represents a normal positive physical and mental (psychic) state and the functioning of people's organisms in response to the positive biological factors and traits (qualities) acquired in the conditions and under the influence of the surrounding natural and social environment. In this sense the health of an individual should be understood as the state and the functioning of an individual organism, whereas people's health is a similar condition and functioning of the physical and mental capabilities of the entire population of a country or a region or of many people.
These definitions of health, health of an individual and people's health may serve as a basis for looking at these categories from their criminal-legal angle, i.e. for defining them as crime objects.
| Health as a Crime Object | |
Viewed from the criminal law angle, health as a crime object, is a set of social relations protected by criminal law. These relations ensure a normal physical and mental (psychic) condition and functioning of an individual organism or that of a mass of people (population) in response to the positive biological factors and traits (qualities) acquired in the conditions and under the influence of the surrounding natural and social environment. Accordingly, an individual's health is to be understood as a set of social relations protected by criminal law. People's health is to be associated with the social relations ensuring a certain state of the biological and mental capabilities of the population or of a mass of people, or groups of people united in one territory, one locality, or one region. Ecological or other type of factor influences or can influence this condition. People's health as a generic crime object includes what is common to all its immediate objects without those features that are repeated in each of the immediate objects. People's health as a generic object is related to people's health as an immediate object as the aggregate relates to an individual.
The definition of the given generic object by means of the words "people's health" represents a very concise and most general formulation. Its more concrete and detailed meaning can be grasped from the analysis of its corresponding immediate objects and their features. This analysis shows that an immediate object of illegal medical treatment, treated in article 223 of the CC of the Republic of Azerbaijan, is a set of real social relations ensuring people's health. These relations are regulated by the legislation on health protection. Under article 3 of the Law on Public Health of the Azerbaijan SSR passed on 2nd July 1971, all citizens have the right to receive "generally accessible, free and qualified medical assistance, which is to be provided by the government-run medical institutions." This Law also includes the following provision: "Medical and pharmaceutical practices cannot be carried out by the persons barred from these activities by the established procedure". This law stipulated criminal responsibility for illegal medical practices[079].
These provisions, the title of article 223 of the CC of the Republic of Azerbaijan and the contents of the disposition of part 1 of article 223 of the same code make it possible to state that this legal norm protects social relations from unqualified medical aid which would be harmful for citizens. It ensures free, qualified and easily accessible medical assistance to all people. If all the listed features are taken into account, the immediate object of illegal doctoring can be defined as a set of social relations ensuring people's health by protecting them from unqualified medical assistance and providing them with free and qualified medical aid which is easily accessible at government-run institutions. This aid is guaranteed by the law. The analysis of the law on health protection and of the disposition of article 233 of Azerbaijan's CC shows that ensuring people's health by protecting them from the unqualified doctoring and providing them with free and easily accessible qualified medical assistance at government-run health institutions individualizes, on the one hand, the immediate object of illegal doctoring regarding the generic object, and on the other hand, concertizes the generic object (people's health) elaborating on its contents.
A similar approach can be applied to the definition of the immediate crime object in relation to the rules governing control of epidemics. The violation of these rules is a criminal offense registered in article 224 of the CC of the Republic of Azerbaijan. The law "On Health Protection in the Azerbaijanian SSR" contains instructions on ensuring the well-bring of the people in matters of sanitation and epidemics. These instructions provide for the establishment of sanitation control and a diversified system of sanitary and epidemic control in the food, housing and communal industries. This law also includes provisions on preventing and eliminating infectious diseases[080].
The analysis of these provisions, and the title of article 224 of the CC of the Republic of Azerbaijan and of the corpus delicti features described in the disposition of that article, shows that the legal norm guards the social relations ensuring protection of people's health from epidemics and other infectious diseases by obliging them to observe the rules established by the law and by-laws adopted to prevent such diseases. From here it follows that a set of social relations ensuring the protection of people's health from epidemics and other infectious diseases by obliging citizens to observe the established law and by-laws against epidemics is the immediate crime object. The above mentioned attribute - to safeguard people's health from epidemics and other infectious diseases by obliging citizens to observe established rules - individualizes the examined immediate object in comparison with the generic one and concertizes the generic object at the same time.
The attribute typical of all the immediate crime objects related to drugs, the attribute that individualizes these objects in relation to the generic one and concertizes the generic object is the crime subject, in this case narcotic substances in the form of plants, natural or synthetic substances, preparations and medicines[081].
This proposition makes it possible to define immediate drug-related crime objects as social relations safeguarding people's health by excluding the non-medical use of narcotic substances.
| People's Health as the Generic Object of Drug-related Crimes | |
All of the above makes it possible to define the generic object as people's health, that is a set of homogeneous social relations safeguarding people's health from non-qualified medical aid, epidemics and other infectious diseases and the non-medical use of narcotics.
The definition of people's health as a generic object of the described group of crimes, (outlined in the norms of Chapter X of the Special Part of the CC of the Republic of Azerbaijan) serves at the same time as a pre-requisite for establishing immediate objects of certain kinds of drug-related crimes. This is accomplished by defining their individualizing features and also by elaborating on the notion of the object common to all the drug-related crimes. This includes in itself the feature (or features) common for immediate objects of these criminal offenses, while revealing the essence and the contents of the given object. The common object of the mentioned crimes stands in the dialectic inter-relation with the generic and immediate objects and occupies an intermediate position between them ranked as sub-generic in terms of its status.
| Co-relation between the Crime Object and the Crime Subject | |
It has already been mentioned that the feature common for all immediate objects of drug related crimes and as such characterizing the sub-generic object of these criminal offenses is the crime subject, that is narcotic substances in the form of plants, synthetic or natural drugs, preparations and medicines. Although "the crime object, that is the social relations-is a purely social category containing nothing material"[082], whereas the crime subject is a material category, representing things of the outer material world, the latter is the cause, and a pre-requisite to the rise and existence of social relations. That is why it is included in the object sphere as an element of corpus delicti.
The theory of criminal law contends that "the sphere of the object as an element of corpus delicti includes the following notions: 1) social relations; 2) objects and things as pre-requisites, a natural basis of corresponding relations; 3) subjects of relations - i.e. crime victims. Using this approach, the notion of the object is taken as a whole, and the notions of social relations, things, property and natural resources materialized in them, as well as the notions of victims, can be considered as elements or components of the whole"[083].
This co-relation between the crime object and the crime subject shows that the latter is not an attribute alien to the object. Rather it is included in the object's sphere and therefore it will be theoretically justifiable to consider the subject as the object's attribute. For example, it is possible to consider narcotics as a subject of drug-related crimes and as an attribute of the sub-generic object of these criminal offenses.
The isolation of the described attribute makes it possible to reduce the sphere of the generic object - people's health - to the level of the sub-generic object limiting it to a part of the social relations which safeguard people's health from the negative non-medical use of narcotics.
The norms on responsibility for drug-related crimes indicate people's health from a real or possible negative influence of narcotics. These norms are set, figuratively speaking, at different orbits around the nucleus, that is people's health. These orbits, lying at various distances from the nucleus, provide a type of protective layers for people's health.
Set at the orbit closest to the nucleus is the norm included in article 226-6 of the CC of the Republic of Azerbaijan. It stipulates responsibility for the repeated consumption of narcotics without a doctor's prescription in the course of one year after the imposition of the administrative punishment, as well as for illegal acquisition or storage of drugs without the aim of selling them in small quantities. This norm protects people's health from the direct and really negative impact of narcotics.
All other norms stipulating responsibility for the drug-related crimes are placed at more distant orbits, so to speak. The closest of them are norms stipulating responsibility for solicitation to take drugs (article 226-4 of the CC of the Republic of Azerbaijan) or for setting up and maintaining drug dens (article 226-3).
At the next orbit lying farther out, are the norms stipulating responsibility for the illegal manufacturing of drugs, acquisition, storage, transportation and sending by post without the aim of selling them (articles 226-1, 226-6); with the aim of selling or pushing narcotics (article 226); and the theft of drugs (article 226-2). At the next and even more distant orbit is the norm foreseeing responsibility for the manufacture, acquisition, storage, taking stock, distribution, transportation and sending of drugs by post (article 226-5). At the farthest orbit are the norms defining responsibility for sowing or raising drug-bearing crops banned for cultivation. (articles 227, 227-1). All the above listed norms (articles 226-4, 226-3, 226-1, 226-6, 226, 226-2, 226-5, 227, 227-1 of the CC of the Republic of Azerbaijan) safeguard people's health from the possible negative influence of narcotics, even if this influence is indirect.
The norm specifying responsibility for the consumption of drugs without a doctor's prescription only protects people's health from the influence, though direct and real, of drugs rather than from the harm inflicted upon health. It means that this norm only protects the safety of health rather than protecting health itself, which may or may not be damaged by drugs. Other norms stipulating responsibility for drug-related crimes protect health not from the actual harm inflicted upon it, and not from the direct influence on it, but only from a possible indirect influence on it, i.e. from an influence that stands even farther from harm to health than upon consumption of narcotics. In short, most of these norms protect the safety of health rather than health itself.
The analysis of norms stipulating responsibility for drug-related crimes makes it possible to individualize their sub-generic object, which occupies an interim position between the generic and the immediate objects of the listed criminal offenses. This individualization specifies the sub-generic and the corresponding immediate objects of the given crimes. The conclusion that the listed norms protect the safety of people's health rather than people's health itself, arises in consequence of this specification.
The reference to the safety of people's health as well as the reference to the subject of crimes connected with drugs, reduce the generic object - i.e. people's health - to the confines of the sub-generic object. The safety of people's health is a feature individualizing the sub-generic and immediate objects of the examined crimes as compared to the generic object.
The above discussion makes it possible to define the sub-generic object of crimes related to drugs - i.e. the safety of people's health - as a set of social relations safeguarding people's health from the non-medical, negative, real or possible, impact of narcotics. The norms in Chapter X of the Special Part of the Azerbaijanian CC entitled "Crimes Against Public Security and Public Order" safeguard these relations.
| The Sub-Generic Object of Crimes Involving Drugs | |
The status and contents of the sub-generic object may provide a scientific basis for an independent section in Chapter X of the CC of the Republic of Azerbaijan or an separate chapter that would consist of the norms stipulating responsibility for drug-related crimes. This chapter could be called "Drug-Related Crimes" or "Crimes Against the Safety of People's Health Involving the Non-medical Application of Narcotics". Yet it would hardly be reasonable to introduce this proposal as part of the effort to improve the criminal legislation of the Republic of Azerbaijan. There is hardly any sense in splitting up the Special Part into smaller chapters (and then into sections). Such a division would hardly help improve the present system. However, if law-makers find it possible and useful to divide the chapters of the Special Part of the Azerbaijanian CC into smaller units, they are free to make use of this proposal which seems to be scientifically sound.
Of major importance is the need to define the immediate objects of crimes linked to drugs.
| The Immediate Objects of Crimes Linked to Drugs | |
These objects correspond, in terms of their contents, to the generic and sub-generic objects and have similar features. Apart from these features of the sub-generic object and included in its definition, the immediate objects also have some additional individualizing attributes .
This is why in order to define immediate objects of related drug crimes, it is necessary to single out features individualizing each of these objects. This is important as it is the primary factor ensuring a precise qualification of crimes in accordance with the law. Presently no attempt has been made in juridical literature to single out features individualizing immediate objects of such crimes. The only mention that has been made is that people's health is an object of these criminal offenses[084].
In order to determine attributes individualizing immediate objects of drug related crimes it is necessary to project objective attributes covered by dispositions of each of the norms specifying responsibility for certain drug-related crimes onto their sub-generic object.
| Varieties of Immediate Objects | |
In terms of the individualizing attributes, of the immediate objects of drug-related crimes, these objects can be divided into 4 types. The first comprises immediate objects of such crimes as illegal manufacture, acquisition, storage, transportation and sending of narcotics by post without the aim of selling (article 226-1 of the CC of the Republic of Azerbaijan.), with the aim of selling or the sale of drugs (article 226), theft of narcotics (article 226-2), illegal acquisition or storage of narcotics in small quantities without the aim of selling (article 226-6), the setting up and maintaining drug dens (article 226-3), and incitement to consume drugs (article 226-4). The second type is associated with the immediate object, violating the rules on manufacture, acquisition, storage, taking stock, distribution, transportation or sending drugs by post (article 226-5 of the CC of the Republic of Azerbaijan). The third type can include the immediate object of repeated consumption of drugs without doctor's prescription in the course of the year after the imposition of an administrative punishment for the same violation, or an illegal acquisition or storage of narcotics in small quantities without the aim of selling them (article 226-6 of the CC of the Republic of Azerbaijan). The fourth type is represented by the immediate object of sowing or raising drug-bearing crops prohibited for cultivation (articles 227, 227-1 of the CC of the Republic of Azerbaijan).
| The Immediate Object of the First Type | |
1. The attributes individualizing the immediate object of drug-related crimes of the first type are the crime subject, on the one hand, and the remoteness of the impact of drugs on people's health, on the other.
The crime subject in the given type of the immediate object is a series of drugs. "They include opium, morphine, heroin, hashish, some sleeping drugs, etc... capable of causing a state of intoxication accompanied by the feeling of complete physical and psychological comfort and well-being."[085].
In accordance with another definition, narcotics are "natural and synthetic substances causing drug addiction." [086].
Without getting into detailed treatment of narcotics in this context as a subject of the examined crimes, it would be reasonable to note that drugs acting as a subject of crime ( in the sphere of the immediate object of the first type) are the ones which are or are capable of causing narcotic intoxication and, if abused, -drug addiction. The capacity to drive a person into a state of intoxication distinguishes narcotics from drug-bearing plants still being grown but not ripe, or from the ripe ones but remaining standing, not separated from their roots. As long as the drug-bearing plants remain in the fields as standing crops, they cannot be considered as narcotics, but only as drug-bearing plants. Criminal responsibility for their sowing or growing is stipulated in articles 227, 227-1 of the CC of the Republic of Azerbaijan. These plants remain a subject characterizing the immediate crime object belonging to the fourth type.
Another attribute individualizing the immediate crime object of the first type is the degree of remoteness of narcotics impact on people's health expressed in a possibility of impact of the mentioned substances on the safety of people's health.
Having said this, it is possible to define the immediate object of drug-related crimes belonging to the first type as social relations ensuring the safety of people's health by protecting it from an immediate possible negative influence of the ready for use narcotics. These relations are safeguarded by articles 226, 226-1, 226-2, 226-3, 226-4 and 226-6 of the Criminal Code of the Republic of Azerbaijan.
| The Immediate Object of the Second Type | |
2. The regulation and protection of social relations ensuring the safety of people's health through special rules are the attributes individualizing the immediate object of the second type. These rules deal with the manufacture, acquisition, storage, taking stock, distribution , transportation and sending of drugs by post, shape these relations into a legal normative form. The crime subject of the second type is narcotics which are not only ready for use but also those still at the manufacturing stage or raw material for the production of drugs.
These attributes makes it possible to define the immediate object of the second type as a set of social relations safeguarding people's health from possible non-medical application of prepared narcotics, narcotics still at the manufacturing stage, or drug-bearing raw materials for producing drugs. Special rules for the manufacture, acquisition, storage, taking stock, distribution, transportation and sending of drugs by post, protect these social relation as stipulated in article 226-5 of the CC of the Republic of Azerbaijan.
| The Immediate Object of the Third Type | |
3. The way narcotics influence people's health, that is a non-medical impact is the attribute individualizing the immediate crime object of the third type (along with the subject identical with the one included in the sphere of the immediate object of the first type).
Taking this attribute into account, the immediate object of the third type should be defined as a set of social relations safeguarding people's health from the non-medical impact of drugs, as stipulated in article 226-6 of the CC of the Republic of Azerbaijan.
| The Immediate Object of the Fourth Type | |
4. Attributes individualizing the immediate object of the fourth type incorporate the crime subject, on the one hand, and the remoteness of the influence of sown or grown narcotics on people's health, on the other. The subject of these crimes are the drug-bearing plants prohibited for cultivation. These plants are listed in the dispositions of articles 227, 227-1 of the CC of the Republic of Azerbaijan. They are opium poppy, Indian, South Manchurian and South Chuisk hemp, oil-bearing poppy and others. The essence of the second individualizing attribute lies in a possible subsequent impact of sown or raised drug-bearing crops on the safety of people's health.
Due to the attributes listed above, the immediate object of the fourth type is a set of social relations safeguarding people's health from a subsequent non-medical possible impact of the sown and grown drug-bearing crops prohibited for cultivation, as stipulated in articles 227 and 227-1 of the CC of the Republic of Azerbaijan.
Drug-related crimes are subject crimes in the sense that they have a subject of encroachment. In the general notion of corpus delicti the subject of encroachment is an optional feature, whereas in corpus delicti of drug-related crimes, it becomes an obligatory attribute, since articles of the CC of the Republic of Azerbaihjan stipulate responsibility for these criminal offenses.
The subject of the crime (encroachment) is a "material entity, a thing of the material world, animate and inanimate, acting as the cause of the crime, upon which the criminal exerts direct impact while committing the crime"[087].
| The Subject of Crimes Related to Drugs | |
As it has been pointed out, the narcotic substances themselves are the subject of crimes. Taken out of circulation, with the exception of narcotics used for medical purposes, precisely as narcotic substances, they are the subjects of the examined crimes. As for the crime object, (sub-generic and immediate objects corresponding to it) it is, as was defined earlier, a set of social relations safeguarding people's health from a non-medical, possible or real, negative impact of narcotics, as stipulated by legal norms in Chapter X of the Special Part of the CC of the Republic of Azerbaijan.
The subject of crimes related to narcotics, as the subject of any crime, has a system of attributes which are determined in dispositions of appropriate articles of the CC. Every attribute is either mentioned directly in the disposition of a given article, or bears an imprint of other attributes included in the disposition of the appropriate articles of the CC.
As it has already been established, the subject of drugs related crimes is narcotic substances themselves, synthetic and natural, causing a state of intoxication, accompanied by the feeling of a complete physical and psychological comfort and leading to drug addiction. To be more precise, the subject of the examined crimes is the narcotic substances possessing the above properties, included in "the List of Narcotics (narcotic substances and narcotic medicines, synthetic and natural) that was compiled by the Standing Committee on Drug Control under the USSR Ministry of Public Health on 1st July 1990. These substances were put in the category of narcotics in the established order and in keeping with the Ministry's instructions after the List's publication and in accordance with the recommendations of the Standing Committee on Drug Control[088].
| The Attributes of the Crime Subject-Narcotic Substances | |
Proceeding from the earlier definition reflecting the essence of narcotic substances as the subject of drugs related crimes, one can point to the attributes of this subject and individualize its legal and physical aspects. Although, all the features of the subject are inter-connected and the absence of one implies the absence of the crime subject itself, still in the sequence of their position, the physical attributes are primary, and the legal ones are secondary.
The physical attributes of narcotic substances as the subjects of drug-related crimes can be seen in the qualitative and quantitative terms.
| The Qualitative Attributes | |
Narcotic substances as a subject of drug related crimes have the following qualities: capacity to cause 1) a state of intoxication, accompanied by the feeling of complete physical and psychological comfort leading to drug addiction; 2) a state of readiness to cause narcotic intoxication, and subsequently, drug addiction and 3) a natural state of the given substances in the form of drug-bearing plants or their seeds. The combination of the first two qualities characterizes the crime subject, as stipulated in articles 226, 226-1, 226-2, 226-3, 226-4, 226-5, 226-6 of the CC of the Republic of Azerbaijan. The combination of the first and the third qualities characterizes the crime subject, as stipulated in articles 227, 227-1 of the same Criminal Code.
The first qualitative attribute, the ability to cause a state of intoxication and drug addiction, distinguishes these substances from alcohol or "monoatom spirits". Systematic consumption of those can cause alcoholism or alcoholic psychosis[089].
Medical experts consider alcohol as a narcotic substance[090].
However, narcotic substances differ essentially by their physical nature from alcohol. This difference lies in the fact that alcohol can cause a disease i.e. alcoholism, and only when it is consumed systematically for a long time. Narcotic substances by contrast inevitably can cause drug addiction, or dependence on narcotics, very quickly, even after several doses, as a matter of fact. Drug addiction has a much stronger effect on the human being than alcoholism does. It is actually incurable whereas alcoholism can be cured. This explains why the spread of drugs is prohibited by criminal legislation. Similarly, narcotic substances differ from toxic substances.
The second attribute of the subject in drug-related crimes is the state of readiness of narcotic substances to cause narcotic intoxication or drug addiction. It means that narcotic substances are ready for consumption in prepared synthetic substances, medicines and various preparations (i.e. obtained with the help of a chemical method) or natural substances, such as those prepared from the drug-bearing plants by way of a mechanical or thermal process, or narcotic substances separated from plants or extracted from them. For example, opium juice or oil-bearing poppy are in a state in which they are ready for consumption.
If a substance is not yet ready for consumption and remains a raw material, or a semi-finished product, it cannot be regarded as a narcotic substance. Under certain conditions, the presence of certain properties, may make this substance toxic. When a narcotic substance is still a raw material or a semi-finished product, it is merely a subject of preparation or encroachment on the preparation of narcotics, as stipulated in articles 226 or 226-1 of the CC of the Republic of Azerbaijan. Raw materials or semi-finished products already involved in the production process violate production rules, according to article 226-5 of the Azerbaijanian CC.
The third qualitative attribute of the subject in drug-related crimes is the natural state of narcotic substances in the form of drug-bearing plants and their seeds. Articles 227 and 227-1 of the CC of the Republic of Azerbaijan attribute opium and oil-bearing poppy, Indian, South Manchurian, South Chuisk and other varieties of hemp to drug-bearing plants.
The crops listed above and their seeds represent a crime subject, as outlined in articles 227 and 227-1 of the CC of the Republic of Azerbaijan, when they are standing regardless of the grown stage or when the seeds were sown. Seeds that are not yet sown, if they are not ready narcotic substances, may represent or represent a subject of preparation ( in the period of storage, transportation, sending or acquisition) or a subject of encroachment ( at the time preceding the sowing) on the sowing or raising of the drug-bearing plants. From the moment of the separation of seeds and drug-bearing plants from the roots, if both of them have the properties of prepared narcotic substances, the crime subject is present, as stipulated in articles 226, 226-1, 226-2, 226-3, 226-4, 226-5, 226-6 of the CC of the Republic of Azerbaijan.
| The Quantitative Attributes | |
The amounts (quantities) of the narcotic substances are a quantitative attribute of the subject of these crimes. These amounts can be divided into four groups: 1)small, 2) considerable, 3)large and 4) any amount
Small and large amounts of narcotics are determined by the "Resolution of the Standing Committee on Drug Control under the USSR Ministry of Public Health which refers to small and large amounts of narcotic substances discovered in illegal ownership or circulation." This resolution is a supplement to the Protocol No 9 passed at the Standing Committee's meeting on 25th November 1987[091].
According to this Resolution, small and large amounts were determined depending on the various quantities of narcotic substances. The Resolution contains two lists. Each of them includes 19 types of narcotics and outlines the maximal quantities for the small category and minimal - for the large. For example, the maximum limit of drugs in the small category is: 5 grams of marijuana in the form of dried flowers and upper leaves of different varieties of hemp ; 0.5 grams of hashish oil; 0.003 grams (3 ampules of the 1% solution) of morphine in the form of a base and salts; 0.015 grams of heroine and 0.03 grams- of ephedrine. The minimum limit in the large category is: 500 grams of marijuana in the form of dried flowers and upper leaves of different varieties of hemp; 50 grams of hashish oil; 2.5 grams (250 ampules of the 1% solution) of morphine in the form of a base and salts; 1.10 grams of heroine and 3 grams of ephedrine.
The interim amounts of drugs given in the lists mentioned above and any amounts of other drugs are regarded as considerable.
Small amounts of drugs are the subject of crime of illegal acquisition or storage of drugs without the aim of selling them in small amounts, as stipulated by article 226-6 of the CC of the Republic of Azerbaijan; large quantities of narcotics are the subject of the crime of illegal manufacturing, acquiring, storing, transporting and sending drugs with the aim of selling, as well as sale or theft of narcotics in large amounts, as outlined in part 2 article 226, and part 3 article 226-2 of the same CC. Narcotics in considerable or large amounts are the subject of crime of illegal acquisition or storage of narcotic substances without the aim of selling them, as stipulated in article 226-1 of the CC of the Republic of Azerbaijan. Narcotic substances in small or considerable amounts are the subject of crime of illegal manufacture, acquisition , storage, transportation and sending by mail of narcotics with the aim of selling, as well as of theft and sale of drugs in small amounts, as specified in articles 226 and 226-2 of the CC and also in part 2 of article 226 and part 3 of article 226-2 when large amounts are a qualifying feature.
Narcotic substances in any amount are the subject of crime in the following: illegal preparation, transportation or sending without the aim of selling, consumption without a doctor's prescription, setting up and maintaining drug dens, incitement to consume drugs and the violation of the rules of their manufacture, acquisition, storage, taking stock, distribution, transportation or sending by mail and also sowing or raising drug-bearing crops, as stipulated in articles 226-1, 226-6, 226-3, 226-4, 226-5, 227 and 227-1 of the CC of the Republic of Azerbaijan.
| The Legal Attributes | |
As far as the legal aspect is concerned, narcotic substances as a subject of crime, have one obligatory and two optional (additional) attributes. The obligatory attribute is the inclusion of the given drug into the "List of Narcotics (Narcotic Substances and Narcotic Medicines, Synthetic and Natural among them)"[092] or its referral to the category of narcotics. The optional attributes include: 1) the absence of a doctor's prescription for the use of a particular drug and 2) the inclusion of the particular drug into the "Enumeration No 3 of drugs prohibited for human consumption or banned from being manufactured, sown or raised, and drugs that do not need to be included in pharmacists' reference books, doctors' reference books or the State Pharmacopoeia of the USSR" of the previously mentioned List[093].
The obligatory attribute characterizes the subject of any narcotic-related crime. It is the overriding legal criterion for referring a substance to a narcotic category separating it from other stupefying or heady substances, from toxic ones and particularly from alcohol. The presence of this attribute means that the substance which is included in the mentioned List is recognized as one which is banned from circulation. It is banned from circulation, banned from the turnover with the exception of its use for medical purposes. This means that this substance can be owned by the government or is permitted to be at the disposal of medical institutions and organizations only.
| Optional Attributes | |
The first optional attribute typical of a narcotic substance as a subject of crime is the absence of a doctor's prescription for its use. This attribute is not relevant in, any case of drug abuse, but exclusively the subject of the crime in cases of narcotic substance consumption a doctor's prescription, as stipulated by article 226-6 of the CC of the Republic of Azerbaijan. This attribute is an imprint of the objective side on the subject of the given crime. The absence of this attribute, i.e. the availability of a doctor's prescription cancels the juridical and criminal legal meaning of the crime subject.
The second optional attribute typical of a narcotic substance is its inclusion in the Enumeration No 3 of the mentioned List. As the first optional attribute, it also refers not to any drug related crime, but only to violations of manufacture, distribution, or theft of narcotics included in Enumeration No 3 prescribed by a doctor but without medical necessity. Prescribing this drug without medical need (particularly in the case of a written prescription) is a violation of rules regulating the distribution of drugs, as outlined in article 226-5 of the CC of the Republic of Azerbaijan. If there is an intent to steal these drugs, preparation for stealing or the complicity in stealing, this act is a criminal offense as outlined in articles 15 and 226-2 or in articles 17 and 226-2 of the CC.
It follows from the above that the subject of each of these drug-related crimes can be individualized. It appears that we can distinguish seven kinds of such subjects. Moreover, the subject of any drug-related crime has two common features: 1) capacity to cause a intoxication and drug addiction, and 2) its inclusion in the "List of Narcotics (Narcotic Substances and Narcotic Medicines, Synthetic and Natural)."
| Kinds of Subjects of Drug-Related Crimes | |
The subject of the first kind is associated with drugs in the state of readiness and in either small or considerable amounts. It is a subject of the crime involving illegal manufacture, acquisition, storage, transportation, and sending by mail of drugs with the aim of selling them and also distribution and theft of drugs, as specified in articles 226, 226-2 of the CC of the Republic of Azerbaijan (with the exception of part 2 of article 226 and Part 3 of article 226-2 of the same CC when large amounts are a qualifying feature.
The subject of the second kind is associated with narcotic substances ready for use and in a large amounts. These drugs are the subject of the crime of illegal manufacture, acquisition, storage, transportation, and sending by mail of drugs with the aim of selling and also of distribution and theft in large amounts, as specified in part 2 of article 226 and part 3 of article 226-1 of the CC of the Republic of Azerbaijan.
The subject of the third kind involves narcotic substances ready for use and in either a considerable or a large amount. These drugs are the subject of the crime of illegal acquisition or storage without the aim of selling, as specified in article 226-1 of the CC.
The subject of the fourth kind is associated with narcotic substances ready for use and in small amounts. In this case, the subject of the crime is illegal acquisition or storage, as stipulated in article 226-6 of the CC of the Republic of Azerbaijan.
The subject of the fifth kind are narcotic substances ready for use regardless of their amount (i.e. in any amount). They are the subject of the crime in illegal manufacture, transportation or sending by mail without the aim of selling; consumption of drugs; establishment and maintenance of drug dens; incitement to consume drugs; violation of the rules of the manufacture, acquisition, storage, taking stock, distribution, transportation or sending of drugs, as stipulated under articles 226-1, 226-6, 226-3, 226-4 and 226-5 of the CC of the Republic of Azerbaijan. The subject of drug consumption here has an additional attribute, that is the lack of doctor's prescription.
The subject of the sixth kind are the natural narcotics in the form of drug-bearing plants and their seeds. Regardless of the amount, they are the subject of crime of sowing and raising drug-bearing plants prohibited for cultivation, as stipulated in articles 227 and 227-1 of the CC of the Republic of Azerbaijan.
And, finally, the subject of the seventh kind involves narcotic substances that are in the process of manufacture, such as raw materials or semi-finished products. Regardless of the amount, these substances are not yet ready for consumption. Such substances represent the subject of crime, violating the rules on drug manufacture, as outlined in article 226-5 of the CC.
In some situations, the subject of such a crime as the violation of the rules of drug manufacturing, distribution or theft may have an optional attribute of inclusion into "Enumeration No 3 of narcotic substances banned for human consumption, manufacturing, including sowing and raising drug-bearing plants. These substances cannot be listed in prescription reference books, medicines' reference books and the State Pharmacopoeia of the USSR.".
The objective aspect of crime is characterized by an act (action or inaction) representing an obligatory attribute. It may also have optional attributes, including the consequence and the causal relationship between the act and its consequence which are obligatory attributes of crimes with material corpus delicti.
The objective aspect of crime is the illegal manufacturing, acquisition, storage, transportation or sending by mail of drugs with the aim of selling or the distribution of drugs, as specified in article 226 of the CC of the Republic of Azerbaijan. These actions, with the exception of the sale of drugs, but committed without the aim of selling are covered by article 226-1, as well as illegal acquisition or storage of drugs in small amounts or consumption of drugs without a doctor's prescription, are laid down in article 226-6 of the CC.
| Manufacture | |
Manufacture is a term that, on the one hand, implies a process and, on the other a result. Manufacture as an attribute of the objective aspect of an accomplished crime, is understood as obtaining without a special permission of narcotics ready for use or obtaining the same drugs of higher concentration. This understanding is indirectly confirmed by the contents of point 6 of the Decision No 7 passed by the USSR Supreme Court on 20th September 1974. The decision of judicial practice was passed in relation to cases of stealing fire arms, ammunition, or explosives, of illegal carrying, storing, acquiring, manufacturing or selling weapons, ammunition or explosives and of carelessly keeping fire arms." In application to arms, ammunition and explosives the Decision recommends that the manufacture of these objects, an act punishable by law should be understood as "their making of or restoring of their hitting power as well as altering some objects (such as flare, start or construction pistols or household utensils) enabling these objects to acquire properties of fire arms." [094].
| Acquisition | |
Acquisition of narcotics is defined as illegal purchase, obtaining narcotics in exchange for other commodities or for a payment of debt, as a loan or gift, as the appropriation of the found drugs, as a picking up of wild opium poppy or the remains of the unguarded crops of opium poppy, particularly, opium straw. Picking up wild-growing opium poppy and the remains of its crops is considered illegal because the List of narcotic substances (narcotic agents and narcotic medicines, synthetic and natural among others) produced by the Standing Committee on Drug Control under the USSR Ministry of Public Health included "opium poppy-plant (point 138) and "poppy straw-all its parts (both whole and crumbled up, dried and not dried, with the exception of ripe seeds) or any variety of poppy collected in any way and containing drug active alkaloids of opium (point 141) ." [095].
As far as other narcotic substances are concerned, hemp, in particular, (Indian, South Chuisk, South Manchurian, South Arkhon and South Krasnodar) mentioned in point 82 of the List, there are no clarifications concerning acquisition. Consequently, only opium poppy and poppy straw in any form, including that of plants, can be regarded as narcotics ready for use. Wild hemp as well as the remains of both unguarded and guarded drug-bearing plants, except for poppy and poppy straw, are not narcotic substances but only raw material which can be used to produce narcotics.
Stemming from this definition is the legal assessment of actions representing the acquisition of drug-bearing plants or their parts (with the exception of opium poppy and opium straw) that are not ready for use as narcotics by picking them, separating them from the root or picking them after harvesting from unguarded and guarded fields. The actions described above cannot be qualified as actual acquisition of drugs, if they are picked from an unguarded field. Theft of such substances if they are picked from a guarded field is also not actual acquisition since the object of these actions is not ready-for-use narcotic substances but only raw materials for production of narcotics. These raw materials are nothing but toxic agents. The consumption of this raw material is not a criminal offense or a crime as one cannot be held administratively or criminally responsible for the consumption of toxic agents. As for the picking of such plants with the intent of manufacturing drugs, part 1 of article 15 of the CC of the Republic of Azerbaijan must be applied. It falls under preparation for committing a crime. Consequently, the collection of plants or their parts, regardless of whether it occurs on guarded or unguarded field, with the intent to produce narcotic substances, should be qualified as an act of preparation for producing narcotic substances, provided there is an intent to sell the prepared narcotics according to articles 15 and 226 of the CC of the Republic of Azerbaijan or under articles 15 and 226-1 of CC, if there is no such intent.
At the same time, considering the peculiarities of the collection of drug-bearing plants or their parts conditioned by specific features of the crime subject and the contents of an offense, it seems advisable to introduce the law stipulating responsibility for this action in the CC of the Republic of Azerbaijan. Since such an offence is different from other drug-related crimes in its nature, in the degree of social harm and in its crime subject, resembling that of sowing and growing narcotic-bearing crops, responsibility for which is covered by articles 227 and 227-1 of the CC, it would be advisable to introduce article 227-2 stipulating responsibility for the illegal collection of drug-bearing plants or their parts.
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