ЮрИнфоР >>> Электронная библиотека >>>

The Criminal Executive and the Legal Administrative Measures to Suppress Narcotics

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 executive and the legal administrative methods to suppress narcotics consist of the measures specified by the criminal, criminal executive and administrative legislation.

Along with punishment the criminal law applies to a person, who has committed a crime and is a drug addict, such a measure as a compulsory treatment from drug addiction. Article 55 of the Criminal Code of the Republic of Azerbaijan states that "in case a crime is committed by a drug addict whose disease was pronounced by the doctors, upon the request of a government agency, a public organization or a labor collective or upon the patient's own initiative, the court, along with imposing a punishment on him, may oblige him to take part in a compulsory program treating drug addiction. In case such persons are sentenced to imprisonment, they are subject to compulsory treatment in prison and after serving their sentence, they may continue, if need be, with this treatment at drug rehabilitation and work therapy centers. Persons, whose conviction does not involve the deprivation of freedom, may be sent to rehabilitation and work therapy centers to undergo compulsory treatment..."

In accord with the Decree on compulsory treatment, and work therapy for alcoholics and drug addicts (The Decree issued by the Presidium of the Supreme Soviet of the Azerbajan SSR on 26th August 1965 includes changes made in 1975, 1985 and 1987) men over 60 years of age, women over 55 years, mentally sick persons, invalids of the 1st and 2nd categories, pregnant women and nursing mothers as well as persons suffering from serious illnesses are barred from such rehabilitative institutions. The illnesses in question are enumerated in a list approved by the Ministry of Public Health of the Republic of Azerbaijan.

Upon the court's decision and at the recommendation of the treatment center where a person is being cured compulsory treatment may be discontinued.

According to article 55 of the CC of the Republic of Azerbaijan, along with imposing punishment, the court has the right, upon the request of the drug addict's family, trade union or other public organization, public prosecutor, guardianship entity and a rehabilitation center, to establish guardianship over the convicted drug addict, especially, if his abuse of drugs endangers his family's material position.

Compulsory treatment complements punishment by exerting a positive influence on the drug addict's physical disposition, intellectual powers and his moral principles.

According to article 20 of the CC of the Republic of Azerbaijan "punishment aims to correct a convicted person's conduct and re-educate him in the spirit of honest attitude to labor, and the observance of laws. It is expected to inculcate in him respect for standards of socialist conduct, as well as prevent new crimes both by convicted and other persons." Rehabilitation measures are bound to change people's consciousness, their outlook, culture, and habits which stand in contradiction with the foundations of morality[125], in short, these measures aim to exert influence on the intellectual life and ethics of an individual.

It is practically impossible to change a drug addict only by influencing his intellectual life and moral principles. This is why law-makers introduced the measure of compulsory treatment to be carried out by medical measures. It is obvious however that to cure an addict only by external influence upon his intellectual capabilities and moral values is impossible, because these spheres of human existence are secondary, whereas the biological nature is primary. This means that the imposition of punishment upon a drug patient, simultaneously with treatment before treatment brings results, is not effective.

In this context it seems feasible to discuss the need to abolish criminal responsibility and punishment for drug patients involved in such crimes as manufacturing, acquiring or storing drugs, as well as sowing and raising drug-bearing crops without the aim of selling them, exclusively for personal use or consumption. The only measure that can be applied to such persons is compulsory treatment. This proposal, if approved and endorsed, may be put into practice, on the one hand, by excluding from article 55 of the CC of the Republic of Azerbaijan provisions dealing with the application of compulsory treatment to drug addicts who have committed the above listed crimes, and, on the other hand, including in the CC new articles, entitled: "Responsibility of Persons Suffering from Drug Addiction" and "Compulsory Treatment of Drug Addicts Who Have Committed Crimes of Manufacturing, Acquiring, and Storing Drugs, as well as of Sowing and Raising Drug-Bearing Crops Without the Aim of Selling them, for Personal Consumption." The first article should be formulated like this: "Drug addicts, who have committed crimes are not freed from criminal responsibility, except for manufacturing, acquiring, or storing drugs, as well as of sowing or raising drug-bearing crops, without the aim of selling, exclusively for personal use or consumption.

Drug addicts, who have committed any of the above listed crimes are only subject to compulsory drug addiction treatment at rehabilitation and work therapy centers or, if there are medical reasons against staying at these places, are required to undergo treatment at a drug hospital."

The text of the second proposed article should read as follows:

"In case a drug addict commits a crime of manufacturing, acquiring, storing drugs and or of sowing or raising drug-bearing crops without the aim of selling, for personal use or for consumption only, the court rules that this person, upon presence of the medical determination, should be placed at a rehabilitation or work therapy center to be treated against drug addiction, or if there are medical reasons against staying at this center, the patient is to be placed into a drug hospital.

Compulsory treatment or treatment at a drug hospital are conducted until the drug patient fully recovers. This treatment can be terminated only by a court order at the recommendation of the medical center where the drug patient has been receiving his treatment.

The procedure of placing a patient into rehabilitation centers or hospitals, as well as the rules of the patients' presence there, are elaborated in the legislation of the Republic of Azerbaijan."

The proposed norms conform to the principles of humanism, and their approval would scale down repression in criminal law and enhance the effectiveness of steps preventing drug addicts from committing new crimes.

The criminal executive measures standing in accord with the norms of the criminal executive law are nothing but the totality of measures regulated by this branch of legislation and bound to ensure the fulfillment of the punishment measures applied to persons who have committed crimes, including ones related to drugs. However, there are no norms in criminal executive legislation especially designed to prevent circulation of narcotics among persons serving sentences. There seems to be a gap in the law in this respect. The task of experts in the theory of criminal executive law is to develop a scientifically based basis for filling in this gap. The accomplishment of this task requires studying the experience of drug patients treatment at the rehabilitation centers, and developing measures to improve it.

The legal administrative measures apply to persons involved in drug-related violations as specified by the norms contained in articles 44 and 102-2 of the Azerbaijanian Code regulating administrative offenses. They define responsibility for illegal acquisition and storage of drugs in small quantities and for consuming drugs without a doctor's prescription (article 44), as well as for the illegal sowing or raising of oil-bearing poppy or hemp, except for Indian, South Manchurian, South Chuisk, South Arkhon and South Krasnodar (article 102-2) and also article 102-1 of this Code.

The norms contained in articles 44 and 102-2 of the Azerbaijanian Code on administrative offenses aim to combat the acquisition, storage and consumption of drugs without a doctor's recommendation and also to deal with the circulation of narcotics containing oil-bearing poppy and hemp, except for the above listed hemp species. These measures are designed to help prevent such circulation.

The norm specified in article 102-1 of the Azerbaijanian Code on administrative offenses is designed to improve the actions against the circulation of drugs by persons who are responsible for the fulfillment of the established order of guarding oil-bearing poppy and hemp fields, places where these crops are stored and processed, as well as improving measures to ensure the destruction of crop residues and production waste containing narcotic substances. This is a special norm designed to help officials carry out efforts aimed at specifically checking the spread of drugs.

The compulsory medical legal administrative measures are the most frequently used and play a major role in suppressing narcotics. These are the measures in accord with the norms of the Decree on compulsory treatment and rehabilitation of chronic alcoholics and drug patients and the Decree passed by the Presidium of the Supreme Soviet of the Azerbaijan SSR on 26th August 1965. These measures are also outlined in article 55-1 of the Law on Health Protection in the Azerbaijan SSR approved on 2nd July 1971 and amended and complimented by the Decrees of the Presidium of the Supreme Soviet of the Azerbaijan SSR in 1985 and 1987[126].

These norms establish grounds for placing drug patients- adults and those under age at rehabilitative-educational and rehabilitative work therapy centers for compulsory treatment.

They contain two general reasons for the compulsory placement of drug patients into rehabilitative-educational and rehabilitative work therapy centers. There are also some specific reasons relating to each of the general ones.

The first general reason is the evasion of treatment which may be expressed in one or several specific manifestations such as a categorical refusal to accept treatment; failure to attend treatment programs two or more times without any valid reason; refusal to go to a hospital for treatment; premature discharge from a drug hospital due to the violation of its rules or refusal to receive treatment; systematic failure to fulfill recommendations of a psychiatrist concerning treatment. The list of such manifestations of the evasion of treatment can be prolonged depending on the circumstances.

The second general reason for the compulsory placement of drug patients into rehabilitative-educational and rehabilitative work therapy centers is that a person may consume drugs even after he went through the withdrawal process at a clinic or a drug hospital. Some specific manifestations of this general one are: reports from the health institutions about the consumption of drugs by a certain person; decisions by the court, office of the public prosecutor, investigator, or inquiry agency to close the case or the refusal to bring the case to the court, even if there is evidence that a person involved is taking drugs; resolutions based on complaints of citizens and reports by government agencies, public organizations, inquiry agencies approved by the heads of city and regional bodies of the Ministry of Internal Affairs where the fact that a person consumes drugs has been proved and registered; decisions by the commission for the affairs of persons under age or an administrative commission to make persons under age, their parents or people substituting them answerable for the consumption of drugs for non-medical aims[127].

Under the existing administrative legislation of the Republic of Azerbaijan, the following categories of people are not subject to compulsory treatment: persons under 16 years of age; disabled persons or those who have diseases incompatible with compulsory treatment at drug prevention centers; persons with suspended sentences or with an imprisonment sentence whose punishment was deferred during the probationary periods; and persons who have committed offences that are still being investigated in accordance with the procedure established by the law.

Naturally, persons who volunteer to undergo anti-drug treatment at a health institution are not liable for compulsory treatment.

The criminal executive and legal administrative measures to suppress narcotics are compulsory measures expected to exert influence on persons who have already committed crimes related to drugs. Their aim, in addition to criminal legal measures, is to build up additional safeguards to protect social relations against the spread of narcotics and drug addiction as a disease.

Никакая часть содержащегося здесь текста ни в каких целях не может быть воспроизведена в какой бы то ни было форме и какими бы то ни было средствами, будь то электронные или механические, если на то нет письменного разрешения АО "Центр ЮрИнфоР".