08ASTANA1245, KAZAKHSTAN: AMENDMENTS TO DRUG LAWS

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Reference ID Created Released Classification Origin
08ASTANA1245 2008-07-10 11:36 2011-08-30 01:44 UNCLASSIFIED Embassy Astana

VZCZCXRO3722
RR RUEHAST RUEHBI RUEHCI RUEHLH RUEHPW
DE RUEHTA #1245/01 1921136
ZNR UUUUU ZZH
R 101136Z JUL 08
FM AMEMBASSY ASTANA
TO RUEHC/SECSTATE WASHDC 2737
INFO RUEHAST/USOFFICE ALMATY 0547
RUCNCLS/SCA COLLECTIVE

UNCLAS SECTION 01 OF 02 ASTANA 001245 
 
STATE FOR INL/AAE (BALABANIAN), INL/C, SCA/CEN (O'MARA) 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: SNAR SOCI KCRM KZ
SUBJECT: KAZAKHSTAN: AMENDMENTS TO DRUG LAWS 
 
ASTANA 00001245  001.2 OF 002 
 
 
1. On June 26, the International Day against Drug Abuse and Illicit 
Trafficking, President Nazarbayev signed into law amendments 
introducing tougher punishment for drug-related crimes.  The new law 
increases penalties to life imprisonment for most serious 
drug-related crimes. 
 
2. Interfax-Kazakhstan reported that President Nazarbayev signed the 
law amending the Criminal, Criminal Procedural and Administrative 
Codes to introduce increased penalties for drug-related crimes. 
Because of the threat to Kazakhstani national security posed by 
narco-trafficking, the new law defines drug-related crimes as 
especially grave and, thus, life imprisonment will now be available 
in cases of trafficking in large quantities; participation in 
drug-related crimes as part of a criminal organization; sale of 
drugs in an educational institution and/or to minors; and sale or 
distribution of drugs resulting in death. 
 
---------------------- 
Article 48 - Penalties 
---------------------- 
 
3. Pursuant to Article 48 of the Criminal Code, one can be sentenced 
to life imprisonment for especially grave crimes, making life 
imprisonment an alternative to the death penalty, which was 
suspended in 2003.  However, as was the case for the death penalty, 
women, anyone who committed a crime when under the age of 18, or men 
over the age of 65 at the time of sentencing can not be sentenced to 
life imprisonment.  The newly amended Article 48 includes 
drug-related crimes. 
 
---------------- 
Defining "Large" 
---------------- 
 
4. Many of the amended articles of the criminal code apply 
significantly higher penalties to offenses involving "especially 
large" quantities.  The law defines especially large, large, and 
small depending on the type of drug and whether and how it has been 
processed.  An especially large quantity of heroin is defined as 
more than one gram; any offense involving a small amount - less than 
0.01 grams - is merely an administrative offense and a large amount 
- between .01 and 1 gram - makes an offense criminal without being a 
grave crime.  In the case of pure opium, 3 grams is a large quantity 
and 0.1 grams is small amount.  For marijuana, 1 kilogram is a large 
amount.  Possession of a small amount of marijuana - up to 50 grams 
- is an administrative offense and one is only subject to a fine. 
The law also provides guidelines for fresh marijuana, hashish, 
cannabis, opium cut with neutral substances, poppies, and morphine. 
 
 
----------- 
Article 259 
----------- 
 
5. Under the new Article 259 of the Criminal Code, imprisonment 
sentences from 15 to 20 years with confiscation of property or life 
imprisonment can be applied in cases of illegal purchase, 
transportation or storage with the aim of sales, production, 
processing, or sales of drugs or psychotropic substances committed 
by a criminal organization or in especially large amounts in 
educational organizations.  Article 259 also includes any 
drug-related activity targeted at children. 
 
--------------------------------------------- ------- 
Article 261 - Drug-Related Offenses Involving Minors 
--------------------------------------------- ------- 
 
6. Article 261 prescribes 15 to 20 years with confiscation of 
property or life imprisonment in cases of  encouraging minors to 
consume drugs, especially by (a) a group of people; (b) repeatedly; 
(c) with the use of violence; and (d) against one or more minors. 
The article also covers the encouragement of the consumption of 
drugs leading to death of any person. 
 
-------------------------------------- 
Article 250 - Cross Border Trafficking 
-------------------------------------- 
 
7. Imprisonment from 15 up to 20 years with confiscation of property 
or life imprisonment is now offered in cases of 1) smuggling drugs 
in large quantities through the border; 2) committing the above 
offense repeatedly; by an official misusing his/her authority; using 
violence against a customs control officer; or a crime committed by 
a group acting in concert; 3) committing the above offense in 
especially large quantities by an organized criminal group or 
organization.  Previously, the maximum sentence under Article 250 
was 10 to 15 years and did not include trafficking of large 
quantities. 
 
----------- 
 
ASTANA 00001245  002.2 OF 002 
 
 
Article 259 
----------- 
 
8.  The title of Article 259 of the Criminal Code "Illicit 
Production, Purchase, Storage, Transportation, Carriage or Sale of 
Drugs and Psychotropic Substances" was amended to include 
"Processing".  Illicit purchase, transportation or storage without 
the aim of sale of drugs and psychotropic substances in especially 
large amounts is now punishable by imprisonment from three to seven 
years with confiscation of property.  Previously this offense was 
punishable by an administrative fine or up to three years 
imprisonment.
The same offense committed with the aim of sale, but 
by a person not connected to a criminal group or organization is 
punishable by six to 12 years imprisonment.   Previously the penalty 
was three to seven years. 
 
------------------------------------------- 
Administrative Penalties against Businesses 
------------------------------------------- 
 
9.  Article 319-1 of the Administrative Code penalizes entrepreneurs 
of entertainment facilities who do not take measures to stop the 
sales and/or consumption of drugs, psychotropic substances, and 
precursors.  Fines are determined by the status of the owner and are 
based on the Monthly Calculated Index (MCI), which is determined by 
the GOK annually and is the basis of all fines and taxes for both 
individuals and businesses.  Additionally, MCI is also the basis for 
pension calculations and benefits.  MCI is currently 1,168 KZT 
(approximately $9).  As an example of the use of the MCI, the 
current administrative fine for possession of less than 50 grams of 
marijuana is 2 MCI. 
 
10. Individual entrepreneurs fined under Article 319-1 will be 
subject to a fine of 50 to 150 MCI.  Large entities (as defined in 
the tax code) will be subject to fines ranging from 700 to 1,000 
MCI.  In the case of a repeated offense in the same year, a large 
entity would be fined 1,500 to 2,000 MCI and the business would be 
closed. 
 
11.  For the first time the new law defines entertainment facilities 
as gambling establishments, night clubs, cafe-bars, restaurants, 
internet cafes, billiard clubs, bowling alleys, cinemas, theaters 
and any premises or building used for entertainment, performance, 
sports, cultural purposes.  The new definition broadly expands the 
businesses covered under Article 319-1. 
 
----------------------- 
Destruction of Evidence 
----------------------- 
 
12.  The GOK has wrestled with the serious problem of securing 
evidence from large seizures.  In some cases, corrupt police have 
resold seized heroin.  In response, the Ministry of Interior (MVD) 
has drafted a law allowing for the destruction of seized narcotics. 
The new law would allow anything more than the minimum amount 
defined as "large" to be destroyed as soon as forensic testing is 
completed.  The destruction will require permission of the 
prosecutor and court.  The minimum amount of the drug would be 
retained and entered into evidence, along with the forensic report, 
during trial.  The only exception will be samples admitted as 
material evidence according to Article 223 of the Criminal 
Procedural Code. 
 
-------- 
Comment 
-------- 
 
13.  While drafting the law, the MVD studied both international and 
Kazakhstani practices.  Initially, the MVD took its example from the 
Chinese and attempted to reintroduce the death penalty, which was 
suspended in Kazakhstan in 2003.  If they had been successful, the 
death penalty would have only been available in drug-related crimes. 
 However, Parliament chose to follow Kazakhstani practice and 
approved the imposition of life sentences as an alternative to the 
death penalty.  This is but one example of the MVD's reaction to the 
increasingly serious problem of narco-trafficking and drug use among 
the young.  Even without the reintroduction of the death penalty, 
the new law is evidence of the GOK's commitment to the fight against 
narco-trafficking through Kazakhstan.  Criminal organizations and 
narco-trafficking rings have been especially targeted by this law. 
Strong drug laws in coordination with the creation of the financial 
intelligence unit are necessary for the GOK to cut off both the 
merchandise and the profits of these organizations.  The next 
important step is passage of the law to allow for the destruction of 
large quantities of seized narcotics, which will also strike a blow 
against corruption in the law enforcement community.  End Comment. 
 
ORDWAY

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