Illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs
Illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs
Using drugs by man has a very long history. It has become a part of the mans life together with the medicine, and religious ceremonies. Medicine is using drugs as a pain relievers and the tranquilizers. Some of the religious cults where using drugs during their religious ceremonies. Using their help people where expecting to reach the worlds beyond, to communicate with the spirits of the dead, to foresee the future. In nowadays when drug abusing has achieved the value of the social problem, became a reason of criminality increasing, demoralization of the population, spreading of the dangerous diseases and many of the other socially destructive powers, the necessity to create effective measures to fight them on both: international and domestic levels has also increased.
Regulations of the drug abusing on the international level.
The great level of the social danger of the drug abusing demands passing of the radical measures which could stop the spreading of the "white epidemic". That is why on the international level was established a complex of the measures against the drug abusing.
The international character of the problem is reasoned by the wide spread geography of the drug abusing, the concentration of the main mass of the resources in some of the regions and the activation of the selling into the other regions of the world.
Other words the criminality connected with the drug business became international which has brought the necessity of collective enforcement of the states in the struggle against drug dealing. This why in the year 1912 was signed the first convention against drugs. The number of the normative acts where passed after this convention: The treaty of Geneva and convention of 1925, The treaty of Bangkok and The Geneva convention of 1931 and others. The international drafts where highly developing after the UN creation. They where established in the Protocols on drugs of 1946, 1948, 1953 and the other documents.
Juridical statement of the state consolidation in the struggle against drugs nowadays is The Convention on the narcotics 1961р. The convention has established the international control on manufacturing, saving and circulating of the narcotics, has regulated a number of the organizing and procedural questions, has given recommendations as to drug users treatment, demanded from all the states-convention member to the regulation of these questions throe the domestic legislation and the liability establishing for the purposed actions that are in breach of the laws and orders established by the states for the fulfilling this convention. This convention has also established for lists of the narcotics.
The trying to increase the sphere of the control of the circulation of all the medicine that are able to get the person into the a drug addiction are also typical for the UN convention on the measures against the illegal circulation of the drugs and psychotropic resources, passed in December of 1988. This convention has recommended controlling the manufacturing and circulation of the chemical elements that are not considered to be narcotics but may be used by the drug addicts.
International legal acts against drugs are also stated in other documents. For example, the statute of Interpol-international organization which provides cooperation of the police bodies of different countries in the struggle against the international crimes.
However the main acts in the aspect of the mentioned problem are the conventions listed above. They have a great influence on the development of the domestic Criminal legislation, also domestic criminal legislation of Ukraine.
For example art.36 of the Convention of 1961 proposes to the member states to consider as illegal cultivation, production, manufacturing, supply, supply with a commercial aim, buying, selling, dealing, mailing, transit mailing, all other movement of drugs done with a violation of the Convention provisions.
Art.22 of the convention points out that every member-state considers as punishable every law violation if the law was passed to support the provision of the Convention.
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Criminal responsibility for the illegal movement of the drugs in the legislation of Ukraine.
The law of Ukraine "About the circulation of narcotic elements, psychotropic liquids and their analogs in Ukraine" is the main law which regulates the drug circulation in Ukraine together with the main international acts.
According to this law "Narcotic element are the plants, source or liquid natural or syntactical which are qualified in the International conventions, and also other plants, source or liquids natural or syntactical which contain danger to the health of the population in case of the abusing and apply to this category by the committee of the drug control by the Health care ministry of the Ukraine".
The legislation of Ukraine foresees responsibility for the illegal drug circulation in a several criminal norms as for the reason that such activities contain the great danger to the people’s health. In our country is established the special regulations of dealing with drugs and the special procedure of manufacturing and using drugs with medical means. The health care and law enforcement state bodies do the control of the activities according to that system.
The illegal manufacturing and producing leads to the violation of the regulation on the drug circulation. This why the main object of this crime is the sphere of the peoples health care and especially the regulations of the manufacturing and dealing of drugs and their use only in special purpose.
Object of a crime
Illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs.
А) Collective object.
To establish the collective object of this certain kind of crime it should be researched to what group of the social relations would be the harm done. The norms that establish responsibility for the illegal drug treatment are listed in the chapter 10 of Special part of the Special part of the Criminal code of Ukraine "Crimes against public safety, public order and peoples health."
There are different opinions in the literature regarding to this question. The number of the authors is trying to prove that all the crimes foreseen in the chapter 10 of the Criminal code of Ukraine have the same collective object which is public safety, public order and peoples health. However, even that public safety, public order and peoples health are very closely connected to each other they can not be considered to have the same meaning because they are characterizing independent social relations which are affected by the certain group of crimes. The other authors consider public safety, public order and peoples health to be the direct objects of these crimes and do not point out the collective object. On other side those authors are uniting the crimes as those that belong to the same social relations protected by the state which in fact means that they are pointing out the collective object.
Another group of the authors considers public safety, public order and peoples health to be the autonomous collective objects. There are few groups of the crimes in the chapter 10 that violate different groups of the social relations. Each one of them has it’s own collective object: public safety, public order and peoples health.
Summing it up, crimes that deal with drugs the majority of the authors considers being the crimes against people’s health. Anyway there are also the other points of view. For example Karpovich divides the crimes the drug crimes into two groups: actions that violate public order and people’s health. World health care organization defines health as a condition of mental, physical and social wellness and not only absence of physical injuries. Sociologists define peoples health as one of the main structures of public and state wellness which could be characterized by the complex socially economical and natural factors such as labor, living conditions, psycho-emotional conditions of peoples activities. These definitions are reflecting different aspects of the same object.
Active criminal legislation protects peoples health safety by the restriction of socially dangerous activity which could cause mass diseases or have negative influence on health condition of the great number of people.
Direct object of the any kind of crime is structure component of the collective object and defines the social relation or united group of the social relations which are directly abused. In case if the crime violates in the same time two or several social relations direct object is established by the legislator according to the comparative importance of the relations that should be protected or according to the will of the criminal. This is a reason why several direct objects are possible and one of them is the main and the others are on supply (necessary or facultative ones). According to N. A. Miroshnichenko the main direct object foreseen in the art. 2291 is a sphere of the peoples health care which is supported by the special procedure of the approaching, manufacturing, dealing and using the narcotics according to the rules established by the state bodies.
Together with the main object of this crime is also possible an according object. In the disposition of the art. 2291 of the Criminal code is defined that illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs are being done with the aim of the commercial profit. It means the existence of the danger to health of the certain group of people. Those are the people, which have purchased drugs for their use. It means that the first one of the direct objects is main, than a second one (health) is an accorded as facultative because the relations that support the established rules of the drug circulation may be violated but the harm to the peoples health does not necessary have to be done.
The disposition of the art 2291 the only one structure of the crime: illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs which should be defined as an alternative complicated crime structures.
Objective side of the crime
Illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs.
Objective side of this crime is represented by the number of the activities and each one of them has an autonomous character and can become a reason for applying a criminal responsibility to the person if the person does any of them. In this crime structure the alternative element is the of listed above: Illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs. It is enough to find out the one the listed activities to impose the criminal responsibility to the person.
The activity that combines the objective side of the crimes actually includes several forms of the criminal behavior. However, because of the same features all this forms are united in the same crime. The criminal legislation does not formulate any of the common definitions of these forms. In the disposition of the art 2291 the legislator describes only one crime structure with the alternative forms: illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs. It is a crime with a formal structure. However it does not mean that such a criminal activity do not cause any consequences. Such an activity may cause a number of socially dangerous consequences for example, drug addiction, suicide which was caused by the same reason, person may commit a crime under the drug influence and the others. However such a consequences may be accorded in a guilt only if they where purposely caused by the guilty person. The consequences that appear may have an affect on the punishment individualization but not on the crime qualification .
Manufacturing is the process of making drugs, manufacturing of one or several components despite of the place, condition and the amount of the manufactured product at home or at the factories without the certain procedure.
Manufacturing is considered to be a crime despite of the fact if the person manufactures drugs for sail or personal use. Manufacturing of the drugs means producing drugs despite the concentration, for example manufacturing drugs using natural resources: gushes, cannabis or opium puppies. Manufacturing also means mixing of different drugs.
Any state allows manufacturing of the drugs in a certain amount for medical purposes. Medicine employs drugs as pain relievers only with a doctor prescription. Only pharmaceutical companies can do manufacturing of such a drugs as opium and morphemes. Doctors description is the document which can be the only reason for legal purchasing of the drugs.
The Health care Ministry of Ukraine severely establishes the measures of the drug circulation on the pharmaceutical factories, drug stores, and medical institutes. To manufacture narcotics it is necessary to have the special lisence, which can be given by the order of the Health Ministry or other state body only with a scientific or medical aim.
Judicial practice shows that there are many cases of the law violation by the persons of medical service. The newspaper “Медичний вісник України” 21 septemer of 1997 has published that during the last time around 200 medical workers where accused in crimes connected with drugs. Around one and a half year where stilling narcotics the Drug store director Strilchenko and the oncologist-doctor of the regional hospital Vorobachick in the town of Sumy. On the basis of fake receipts , they have stolen from the hospital around 500 ampoules of the drugs that where considered to be narcotics. The head doctor of the clinical hospital in Zaporizza Deriagin has stolen more then 7 thousand of morphemes, promedol and omnopone.
All other factories, organization and private persons that are doing some kind of activity with drugs are considered as those that do not have a license and their activity is illegal which is criminally punishable. Home drug manufacturing does the harm to the peoples health and then the other relations. That is the main reason why legislator has foreseen the responsibility for the illegal manufacturing in the art. 2291 of the Criminal code.
Purchasing of drugs if one of the forms of the activity foreseen in art. 2291 of the Criminal code.
In this case is possible buying drugs or receiving drugs from other person without charge. Gifting, changing, offering are the forms purchasing drugs without charging. Chargeable purchasing is possible in the forms of buying, changing, debt payment and the other doings. In the judicial practice most of the times is possible chargeable purchasing of drugs. Purchasing of the drugs usually includes the search of the drug dealer and the treaty with him or with the help of the third side about the price and the amount of the drug. To qualify the activity according to the art. 2291 of the Criminal code the price of purchasing does not have any influence.
The other forms of the objective side of this crime are transportation or mailing of drugs. Transportation of the drugs means their movement from one place to another by any kind of the transport one water, land, sky. The owner of the drugs may do transportation and by the person who has drugs on the temporary basement.
V. Was transporting drugs on his own car on the jail territory that he has received from the relatives of the imprisoned for the use prisoner’s use. V. Was sentenced to the term of imprisonment for the transportation of drugs..
Their mailing may do mailing of drugs by post, as a luggage or by some other way from one point to another. To form the crime it is already enough to prove the fact of sending drugs with a letter or a package. The receiving of the drugs is not taken into consideration. If the crime was not finished because of the reasons that do not depend on the guilty person (for example the person was stopped in the moment of the sealing of envelope) his activity should be qualified as one an unusefull try to mail drugs.
Data about drug circulation should be defined from smuggling. Smuggling means the illegal movement of drugs throe the border of the state which is an independent structure of crime foreseen by the art. 70 of the Ukrainian Criminal code. Drugs can also be a subject of this kind of crime but this crime differs from the illegal transportation or mailing of the drugs. In this case place and the means of committing the crime have there and the moment of finishing the crime have criminal meter.
Drug smuggling should be observed as a finished crime from the moment of illegal border trespassing in Ukraine or out of the Ukraine. The illegal trespassing may be done in the form of transportation or mailing throe the state border of the Ukraine.
The bodies of the state custom control have stopped and confiscated 4 tons of marijuana on amount of $2 millions on the border with Poland in Rava-Ruska in April of 1997.
Sale of the drugs is a form of spreading drugs among not defined number of the people (their buying, changing, debt payment and the other doings). So it is a way of moving drugs from one hands into another. The aim of the buyer does not have a criminal meter.
Sale may be done by the person that produced drug but also by the persons that did not participate in the manufacturing. To qualify this crime according to the part 1of the art. 2291 of the Criminal it is enough to establish the sale of the drugs because they make an independent form of the objective side.
Drug speculation is one of the most popular and the most profitable forms of the illegal business. During the USSR times in the republics of the middle Asia where existing criminal clans that where having a support from the corrupted state bodies and hold a very well organized drug dealing. These structures had a possibility to produce drugs on their own plants but also with a help of the state bodies had an access to the plantations of the state and the products of the pharmaceutical industry. At that time Soviet Union was not the main customer of those products. Biggest part of the production was transporting away from USSR where was sold for the foreign currency. That was a time when drug abasement was not such a problem for the USSR compare to the other countries. The especially big scale this problem has started to get with a collapse of the USSR and fall of the "Iron Curtain" which was hiding us from other countries of the Europe and Asia.
With the last tanks from the Afganistan together with the soviet army toMoscow was moving the great part of the opium in several tons.
At the time of being there is a big problem with illegal drug moving through the Ukrainian territory. Because geographically is in the middle of Europe Ukraine becomes a transit center for the illegal drug transportation in the countries of Europe from the countries of Asia. Of course the great number of those drugs may stay here in Ukraine. Such a drugs as cocaine, heroin, LSD, Ecstasy are not considered to be exotic any more and can be purchased in any of the big towns.
Largely increased a number of the persons buying drugs. Especially increased a number of children and teenagers buying drugs. Purchasing drugs became a lot easier. Of course the "elite" drugs such as LSD and Ecstasy are too expensive for the teenagers but the cannabis smoking is becoming more and more common.
So the objective side of this crime may be done in one of these forms: Illegal manufacturing, producing, and purchasing, transportation, mailing or sail of drugs. Means, time, place of the illegal drug circulation do not have a criminal matter. They may be only taken into consideration in court for choosing punishment for the person.
The form of guilt, motive and the aim characterizes subjective side of this crime. In the disposition of the art 2291 of the Criminal code the guilt is not exactly defined. However the legislator says about the same aim of the dealing. In this case we may consider that the only direct purpose is possible. The modern scientists consider all the crimes with formal consistence to have the direct purpose.
While manufacturing drugs the person understands the social danger of the activity and wishes to produce this or other drug. Doing other activities foreseen by the objective side of the art 2291 of the Criminal code (Illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs) person also understands the social danger of the activity and wishes to do one or few of the activities foreseen in the art. 2291 .
Together with the purposed form of the guilt to the subjective side should be taken the motive and the aim. These structures are very close to each other but not similar. With the same motive there may be different aims and the same aim may be a result of a different motives. If we are not familiar with motives we can not understand why person has such an aim. Motive and the aim of the crime are the necessary details of the crime subjective side. Motive and the aim are characterizing the subjective processes of the criminal’s mind and have a great importance in the drug qualification.
Subject of a crime.
Subject of a crime foreseen in the art. 2291 of the Criminal code. Subject of this crime may be any private person that is not insane and has achieved the age of the criminal responsibily-16 years. If the Illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs was done by the state body worker that overpowers his rights that the crime should be qualified according to the art.165 of the Criminal code and the p.2 of the art. 2291 of the Criminal code. The art. 2291 of the Criminal code are foreseen the crime elements which increase the social danger of the activity. The article means committing a crime again or according to the previous agreement by the group of persons or by the person that had committed before a crime foreseen by the articles 2292-2295 of the criminal code or by the dangerous recedivist or if the subject of the activitie where the drugs in a large number.
The court should not qualify as a recidive the activitie which was comitted first time when the subject of the crime was consisting of the same drugs. For example, if the person has purchased 200 grams of cocaine has kept it and then has passed to another person. Here where committed a number of illegal actions but all of them where combined with the same object of the crime. In this case there are not any features of recidivate even that everyone of this activity combines a finished crime, foreseen by the art. 2291 of the criminal code.
The previous agreement by the group of persons is admitted in the cases when two or more people have agreed to commit a crime together. For example, one person prepares a drug and another one sale it or keeps it with the aim of selling. All the members of the group have to be subjects of crime, which means that all of them have to reach the age of the criminal responsibility and be sane. It is hard to imagine the situation when there is an agreement with the person insane. They can be admitted to be the instruments of the crime.
According with an art 71 of the criminal code this crime is admitted to the category of heavy crimes which has to be taken into consideration limited by the sanction of the article 2291. Illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs can be punished by the term of imprisonment from three to ten years with the confiscation of the property or without it.
The same activity committing a crime again or according to the previous agreement by the group of persons or by the person that had committed before foreseen by the art2292-2295 22915229 19229 20 of the Criminal code or with involving a minor and also sailing of the drugs in the places that are used for holding educational and cultural activities and in other public places or if the subject of the crime where drugs in a large number or especially dangerous drugs can be punished by the term of imprisonment from five to twelve years with the confiscation of property.
The actions foreseen by the part one and two committed in regularly or by the organized group or the recidivist, also, if the subject of such an activity were where drugs in a large number they may be punished by the term of imprisonment from eight to fifteen years with the confiscation of property. According to the art. 22910, person who has given up the drugs and has shown the source of purchasing or has helped solving the crime connected with the illegal drug circulation can not be punished for the illegal manufacturing, producing, purchasing, transportation, mailing or sail of drugs ст 2291 of the Criminal code.
The strugle against a drugs is impossible without a measures of the legal character. Among them the main role have the criminal norms.
The existing system of the criminal norms has a large number of criminal punishment for illegal drug circulation .
However, taking into the concideration the dangerous affect of drugs the lagislator should always try to improve the legislation base. For example, there is a need of unification of the normative base against drugs, to develope the sistem of the law enforecement acts (especially the acts of the ministry of health care about drugs.) There is also a need to develope a practical use of the criminal laws about struggle against drugs. It is also important a preventive measures, for example an educational work in school, preliminary school for children and also keeping up with active propaganda among the youth of the development of the negligence attitude toward drugs in the minds of the people.
2. Regulations of the drug abusing on the international level
3. Criminal responsibility for the illegal movement of the drugs in the legislation of Ukraine.
4. Object of a crime:
b) direct object
5. Objective side of the crime
6.Subject of crime
Criminal code of Ukraine. year 1961 (changes 1 of January 1999.)
2.С. П. Дидковская Е. В. Фесенко С. П. Гарницкий Наркомания: Уголовно-правовые и медецинские проблемы - Киев: Вища школа 1989
3.Советское уголовное право/Отв. Ред. Владимиров В. А. И др.-М.: Юрид. Лит.,1979.-Ч. Особенная.-.
4.Матышевский П.С. Ответственность за преступления против общественной безопасности, общественного порядка и здоровья населения. - М.: Юрид. Лит., 1964.
5.Даньшин И. Н. Уголовно-правовая охрана общественного порядка. -М . : Юрид. Лит., 1973..
6.К. А. Карповыч Уголовно-правовые меры борьбы с распространением наркомании М.: Юрид. Лит.,1979.
7.Смулевич Б. Я. Народное здоровье и социология. -М.: Медицина, 1965.
8.Трайнин А. Н. Общее учение о составе преступления.- М. :Госюриздат,1957.
9.В.А. Перехрест Проблеми медичного використання наркотиних та психотропних речовин/ Медичний вісник України 1997 рік 21 вересня
10.Застосування судами законодавства про боротьбу з наркоманією :Огляд судової практики//Бюл. Верховного суду України-1996 №5
10.Baker L. The sources of international law on drug treatment. N. Y. University. 1990