Volume 03 Issue 08-2023
77
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
08
Pages:
77-85
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The article examines the theoretical views related to the subject of the crime of illegal introduction of powerful or
toxic substances into circulation and the problems arising in the practice of applying the law related to it. As a result
of the research, the author gives opinions on who can be the subject of this crime, the problems in the qualification
of such crimes committed as part of a group, and some proposals aimed at improving the norms related to this crime
are put forward to the legislative documents.
KEYWORDS
Subject of the composition of the crime, general subject, special subject, individual, legal entity, sanity, strongly
influencing and toxic substances, public health, criminal liability.
INTRODUCTION
Today, the increased use of strong-acting substances
for non-destructive purposes and the increased
incidence of damage to human life and health as a
result of illegal turnover of toxic substances pose a
serious threat to the health and public safety of the
population. Analysis of information on the illegal
circulation of powerful influencing substances
published on the official pages of law enforcement
agencies on social networks in one way or another, we
can see how much in the territory of Uzbekistan there
is an increasing need for such substances that cause
narcological diseases. Already, these substances would
not have been smuggled into the country’s territory
unless there were high cases of use of powerful
substances by the population, such as drugs or in their
place.
In this process, it is important to improve criminal legal
mechanisms in the fight against their illegal turnover.
Today, the Criminal Code of the Republic of Uzbekistan
establishes a number of liability measures for illegal
actions related to these articles. One of these is the
Research Article
SOME ISSUES RELATED TO THE SUBJECT OF THE ILLEGAL
INTRODUCTION OF STRONGLY AFFECTING OR TOXIC SUBSTANCES
Submission Date:
August 20, 2023,
Accepted Date:
August 25, 2023,
Published Date:
August 30, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue08-15
Toshniyozov Sardor Uralbayevich
Independent Researcher Of The Academy Of Law Enforcement Of The Republic Of Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 08-2023
78
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
08
Pages:
77-85
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
unlawful use of strong-acting or toxic substances
prescribed in Article 2511 of the Criminal Code [1].
In this case, some issues related to the subject of the
content of this crime are considered. One of the
elements of the composition of the crime is the subject
of the crime. In the theory of criminal law, a lot of
research has been carried out on the subject of crime,
many aspects of this institution are covered in detail
from the theoretical side [9, 14, 15, 16, 27]. At the same
time, it is necessary to conduct a deeper study on
certain aspects of the subject of the crime, especially in
crimes related to the illegal treatment of strongly
affecting and toxic substances.
ANALYSIS OF THE BASIC LITERATURE
The norms of the Criminal Code do not use the concept
of “subject of crime”, instead we can see such
concepts as “person who committed socially
dangerous acts” in Article 2, “person convicted of
committing a crime” in
Article 4, “person who committed a crime” in Article 5,
“person who committed a criminal act” in Article 13,
“person to be held accountable” in Chapter IV.
Article 17 of the Criminal Code stipulates that sane
individuals who have reached the age specified in this
Code before committing a crime shall be held liable. In
this article we can see the signs of a common criminal
entity. Such indicators include the fact that the
perpetrator is a natural person, he has reached a
certain age and is of sound mind. The absence of any of
these signs indicates that the subject of the crime, in
turn, does not have the structure of the crime.
The first characteristic of the subject of a common
crime is that the perpetrator must be a natural person.
According to the Criminal Code, a legal entity cannot be
a subject of a crime.
Article 11 and 12 of the Criminal Code define which
categories of individuals can appear as subjects of
crime. In particular, in accordance with Article 11 of the
Code, a person who commits a crime on the territory
of Uzbekistan (citizens of the Republic of Uzbekistan,
stateless persons permanently residing in Uzbekistan,
foreign citizens, as well as stateless persons
permanently residing in the territory of Uzbekistan)
shall be held liable under this Code. According to Article
12 of the Code, citizens of the Republic of Uzbekistan,
as well as stateless persons permanently residing in
Uzbekistan, shall be prosecuted under this Code if they
have not been punished for a crime committed in the
territory of another state by the judgment of the court
of that state, foreign citizens, stateless persons
residing permanently in the territory of Uzbekistan It is
established that persons are held accountable for
crimes committed outside the territory of Uzbekistan
under this Code only in cases provided for in
international treaties or agreements.
In the legal literature, there are various discussions on
the inclusion of legal entities in the subject of the
crime.
In particular, scientists who oppose the establishment
of criminal liability of legal entities, believing that this
issue is against the principle of guilt of criminal law,
argue that legal entities do not have the property of
feeling and thinking, as well as the inability to educate
them in the spirit of compliance with legislation,
cannot make the team responsible as a subject [20, 21].
A proposal is put forward by another group of
scientists [22, 23, 24], including researchers [8, 10] who
have carried out research on the treatment of strong
Volume 03 Issue 08-2023
79
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
08
Pages:
77-85
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
influencers and toxic substances in illegal possession,
to apply criminal-legal measures of influence on legal
entities. In our opinion, it is appropriate to consider the
issue of applying criminal-legal measures against legal
entities without recognizing them as the subjects of
crime, in the era of increasing illegal trafficking of
powerful and toxic substances.
Despite the fact that Article 48 of the Civil Code
establishes the liability of a legal entity [2], the law “On
licensing, permitting and notification procedures”
defines [4] the termination and cancellation of a legal
entity’s l
icense, these mechanisms do not allow to
reduce crimes associated with the illegal introduction
of strongly influencing and toxic substances.
In particular, in accordance with Article 33 of the Law
“On
licensing,
permitting
and
notification
procedures”, th
e licensee regularly (two or more times
during a year) or once grossly violates the
requirements and conditions of the license, if these
violations shall be canceled if it has caused damage to
the lives and health of citizens, the rights and legal
interests of individuals and legal entities, damage to
public safety, and damage to the environment. Sale of
unregistered, low-quality, counterfeit drugs according
to Annex 29 (Licensing of retail sale of drugs and
medical supplies) of the Uniform regulation on
licensing of certain types of activities through the
special electronic system, approved by Cabinet of
Ministers Resolution No. 80 of February 21, 2022 does
not fall under the category of terms and conditions
which is considered a gross violation [6].
It turns out that the conduct of pharmaceutical
activities in order to revoke the license of a person with
a license granting the right, it is required by him to
enter into illegal circulation of drugs containing
powerful substances two or more times a year. No
effective mechanisms have been created in the
legislation by a licensed person to revoke his license in
the event that a drug containing a strong substance is
once illegally treated. Already, it is somewhat difficult
to prove that as a result of this violation, the
consequences mentioned in Article 33 of the Law
“On licensing, permitting and notification procedures”
have occurred.
Let’s imagine that a person's life and health were
damaged as a result of the non-medical use of
substances that have a strong impact on their health.
In this case, a natural question arises as to whether the
harm to the life and health of a person was caused by
the drugs sold in a pharmacy or by the regular
consumption of these drugs. Otherwise, it has become
unclear what harm can be caused to the rights and
legal interests of individuals and legal entities, as well
as to public safety as a result of the sale of powerful
substances in the pharmacy.
At the same time, we must note that neither the law
“On licensing, permitting and notification procedures”
nor other legislative acts establish restrictions on the
revocation of this license to the person whose license
gives the right to carry out pharmaceutical activities,
including the one who established another business
entity. This will allow the pharmacy, whose license has
been revoked for illegal realism of strong-acting
substances, to re-obtain the license for Retail re-drug
realization activities again, and this situation, in turn,
will not work in combating violations in the field.
The analysis of the court judgments studied by us
showed that in many cases cases of transfer of these
drugs are committed by their leaders, workers and
informal workers in pharmacies that do not have the
authority to sell drugs containing powerful substances.
Volume 03 Issue 08-2023
80
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
08
Pages:
77-85
SJIF
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FACTOR
(2021:
5.
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)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
According to the judgments issued on cases related to
the illegal handling of powerful or toxic substances
posted on the “Public.sud.uz” website, in 2022 alone,
63 pharmacy managers, official and informal workers
sold drugs containing powerful substances [28].
It can be seen that in the practice of law enforcement
there are cases of illegal circulation of these
substances by legal entities, and the mechanisms
available in the civil legislation to eliminate them are
insufficient.
Based on this, it would be appropriate to include
amendments to the Criminal Code regarding the
possibility of applying criminal-legal measures, which
include fines, deprivation of certain rights, and
liquidation of legal entities.
The next sign of a general criminal subject is that he has
reached a certain age. If a person has not reached the
age specified in the criminal law at the time of
committing a crime, it is not possible to talk about his
criminal responsibility. When determining the age of a
criminal subject, the legislator takes into account, first
of all, the ability of a person to be fully responsible for
his actions in terms of mental and physical
development, and to be able to fully control his actions
(inactions).
In Article 17 of the Criminal Code, the age at which a
person can be held criminally liable is divided into 3
categories, namely:
–
sixteen
years
(general
age
of
criminal
responsibility);
–
fourteen years old;
–
reserved for eighteen years.
The criminal liability of persons who commit the crime
of illegal introduction of powerful or poisonous
substances into circulation occurs when they reach the
age of sixteen before committing the crime.
If a person under the age of sixteen commits another
type of crime with the use of strong or poisonous
substances (for example, murder by poisoning,
incapacitation of the victim with the help of strong
substances), he will be charged with illegal possession
of strong or poisonous substances. shall not be liable
for the act related to the introduction into circulation,
but shall be held liable only for the other type of crime
committed.
Part 2 of Article 2511 of the Criminal Code establishes
more severe liability measures for the illegal
introduction of powerful or poisonous substances into
circulation by a group of persons in advance.
In the legal literature, there are various discussions
about the qualification of the crime with this sign when
only one of them has reached the age of the subject of
the crime in the case of a crime committed by a group
of persons. Discussions in this regard can be divided
into two groups.
Scholars belonging to the first group claim that there is
no participation in the crime in the recorded cases. For
example, in her dissertation on the composition of a
crime similar to illegal trafficking in powerful
substances (illegal trafficking in narcotic drugs, their
analogues,
and
psychotropic
substances),
B.A.Umarova argued that if only two people
participated in the crime as perpetrators, and one of
them was under the age of criminal responsibility for
that crime, or he opined that the crime should not be
considered committed by a group of persons if he was
insane [11]. S.S.Niyozova also expressed a similar
opinion and considers the participation of two or more
persons who have reached the age of criminal
Volume 03 Issue 08-2023
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International Journal Of Law And Criminology
(ISSN
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VOLUME
03
ISSUE
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Pages:
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SJIF
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(2021:
5.
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(2022:
5.
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)
(2023:
6.
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)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
responsibility to commit a deliberate crime together as
participation [17].
Scientists belonging to the second group consider the
commission of a crime by a group of persons, at least
one of whom has reached the age of the crime subject,
as participation in the crime [18, 25, 26]. For example,
A.V.Naumov explains the need to assess this situation
as a crime committed by a group of persons, because
crimes committed by minors have a high social risk, and
such crimes are evaluated by the victims as a crime
committed by a group [18].
The analysis of the criminal legislation showed that
there is no clear answer to this question.
For example, in paragraph 12 of the decision of the
Plenum of the Supreme Court of October 29, 2010 “On
judicial practice in cases of defamation and unnatural
satisfaction of sexual needs” No. 13, even in cases
where one of the participants in the crime is not the
subject of the crime according to the law (Articles 17
and 18 of the Criminal Code articles) it is established
that the actions of the second participant should be
qualified as a crime committed within the group. The
existence of this rule seems to be taken into account
by the opinion of the second group of scientists in the
assessment of participation in crime in our country.
However, if we take into account that this decision of
the Plenum provides an explanation for exactly one
category of crimes and that the rule on the
impossibility of applying the law by analogy is not
directly defined in the criminal legislation, we cannot
find a clear answer to this issue in the decisions of the
Plenum.
According to Article 27 of the Criminal Code,
participation of two or more persons in the
commission of an intentional crime is considered
participation. It is not clearly defined whether all
persons referred to in this provision have the
characteristics of a criminal subject or not. In our
opinion, this gap is the reason why law enforcers and
scientists do not develop a uniform practice in the
qualification of cases where one of the participants in
the crime is not the subject of the crime.
Article 17 of the Criminal Code stipulates that
individuals who have reached a certain age before
committing a crime and who are of sound mind are
held accountable, while the second part of Article 16
states that the commission of an act with all the signs
of a crime is the basis for prosecution.
Based on this, in our opinion, in cases where one of the
participants in the crime is not the subject of the crime,
the actions of the second participant should not be
qualified as a crime committed within the group. After
all, committing a crime within a group implies that
every person participating in it has an intention to
commit a crime. Persons under the age of
responsibility do not fully understand the illegality and
social danger of the committed act, in this case it is
inappropriate to talk about their intention to commit a
crime.
According to the above, we believe that it is
appropriate to state Article 27 of the Criminal Code in
the following version:
Article 27. The concept of participation in crime
“Participation” is considered to be the deliberate
participation of two or more persons who should be
held responsible in the commission of an intentional
crime.
The next characteristic of a common criminal is his
sanity. In accordance with Article 18 of the Criminal
Volume 03 Issue 08-2023
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International Journal Of Law And Criminology
(ISSN
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VOLUME
03
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08
Pages:
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SJIF
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(2021:
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(2022:
5.
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)
(2023:
6.
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)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
Code, a person who has realized the socially dangerous
nature of his actions (inaction) and was able to control
them at the time of committing a crime is a sane
person. A person who was mentally deranged at the
time of committing a socially dangerous act, i.e. a
person who could not understand the significance of
his actions (inaction) or was unable to control them
due to his mental state being chronically or temporarily
disturbed, or his mental state was impaired in some
other way, shall not be held liable. In the case of mental
deficiency, the court may order coercive medical
measures against a person who has committed a
socially dangerous act.
The insanity formula has legal and medical criteria. The
legal criterion of mental retardation is formulated in
the law as the inability to feel the danger of one's
actions (inaction) to society and the evidential
description or to control them. Both criteria must be
present at the same time for a person to be considered
mentally retarded. The legal criterion characterizes
two signs: intellectual (inability to feel the description
of one’s actions) and volitional (inability to control
one’s actions). The medical criterion of sanity reflects
the state of mind of a healthy person from a mental
and medical point of view [19].
Many scientific studies have been conducted in the
legal literature on whether individuals are sane or not,
those who consume strong-acting substances [10, 12,
13]. In particular, in these researches, it was thought
that there are disturbances in the ability to control
one’s will in persons who regularly consume strong
substances and narcotic drugs. In our opinion, these
views are more related to the crime of illegal
possession of powerful or poisonous substances
(Article 251 of the Criminal Code) and do not apply to
the crime of illegal introduction of powerful or
poisonous substances into circulation, provided for in
Article 2511 of the Criminal Code. Indeed, liability for the
crime defined in Article 2511 of the Criminal Code arises
only when there is an intent to commit.
Some of the crimes related to the illegal handling of
powerful and toxic substances can be committed by a
special entity, that is, by individuals with special
characteristics.
For example, the act of violating the order of retail sale
of prescription drugs containing strong active
substances in part 5 of Article 1863 of the Criminal
Code, which is similar to the crime provided for in
Article 2511 of the Criminal Code, is committed by a
special entity.
In accordance with Article 16 of the Law “On medicines
and pharmaceutical activities”, pharmaceutical activity
is carried out on the basis of a license issued in the
prescribed manner [3]. In the explanatory part of the
list of strong-acting substances, approved by the
Cabinet of Ministers’ decision No. 818 of September 27,
2019, the retail realization (sale) of strong-acting
substances named zaleplon, pregabalin, tropicamide
and cyclopentolate is licensed only for the activities of
storage and sale of narcotic drugs, psychotropic
substances it is determined to be implemented
through pharmacies and social pharmacies [5].
Accordingly, in paragraph 18 of the decision of the
Plenum of the Supreme Court of November 27, 2021
“On judicial practice
in criminal cases related to the
illegal introduction of powerful or toxic substances
into circulation”, paragraph 18 Violation of the order of
retail sale is defined as a cause of responsibility by
Article 1651, Part 3 of the Code of Administrative
Responsibility, if such actions are committed after the
application of administrative sanctions or in large
quantities, the actions of the culprit are qualified by
Volume 03 Issue 08-2023
83
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
08
Pages:
77-85
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
Article 1863, Part 5 of the Criminal Code. In paragraph
19 of the decision, it is noted that the sale of drugs
containing powerful substances in pharmacies that do
not have a permit (license) for this should be evaluated
as illegal transfer of powerful substances and should
be qualified by the relevant part of Article 2511 of the
Criminal Code.
At the same time, the analysis of the practice of law
enforcement shows that difficulties and errors occur in
the evaluation of a person as a general or special
subject in judicial investigation bodies.
In particular, there were cases where almost the same
actions were qualified by the investigative authorities
under Article 1863, Part 5 and Article 2511 of the
Criminal Code. In particular, according to the judgment
of the Ohangaron city court on criminal cases dated
June 3, 2022, citizen “U” was found guilty of
committing the crime provided for in part 5 of Article
1863 of the Criminal Code. According to the verdict, on
February 16, 2022, citizen “U” was caught while
transferring 108 units of the drug “Zardex” containing
the substance “pregabalin” to citizen “M”
for a total
of 240,000 soums during a quick operation based on
the application of citizen “M”. Although the initial
investigative div accused the actions of citizen “U”
under part 3 of Article 2511 of the Criminal Code, the
court, based on paragraph 18 of the Plenum decision,
reclassified “U” ’s actions under part 5 of Article 1863
of the Criminal Code. But if we look at the information
given in the court verdict, citizen “U” did not work in a
pharmacy authorized to sell strong substances at the
time of committing the crime [28].
In our opinion, the lack of a clear explanation regarding
the fact that citizens who do not work in pharmacies
are not considered subjects of the crime provided for
in part 5 of Article 1863 of the Criminal Code in the
provisions specified in paragraphs 18 and 19 of the
above Plenum decision is the reason for the lack of
formation of the practice of applying a single right.
CONCLUSION
Based on the above, it is proposed to combine
paragraphs 18 and 19 of the Plenum decision into one
paragraph and to state it in the following version:
“18. Violation of the order of retail sale of drugs
containing strong active substances by prescription is
a cause of responsibility under part 3 of Article 1651 of
the Code of Administrative Responsibility of the
Republic of Uzbekistan. If such actions were
committed after the application of administrative
sanctions or in large quantities, the actions of the
perpetrator are qualified by part 5 of Article 1863 of the
Criminal Code.
It should be explained to the courts that the crime
(criminal offense) specified in these articles is
committed by a special entity, that is, a person
operating in pharmacies who have the authority to sell
prescription drugs containing powerful substances at
retail”.
The analysis of the subject of the illegal introduction of
powerful or toxic substances into circulation made it
possible to conclude the following:
- the subject of the crime specified in parts 1-3 of Article
2511 of the Criminal Code is a general subject;
- the responsibility for illegal distribution of powerful or
poisonous substances by colluding with a group of
persons in advance occurs when at least two sane
individuals over the age of sixteen act as part of the
group;
Volume 03 Issue 08-2023
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International Journal Of Law And Criminology
(ISSN
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VOLUME
03
ISSUE
08
Pages:
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SJIF
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(2021:
5.
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5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
- the measures of influence established by the current
legislation do not allow to fight effectively against
cases of sales of drugs containing strong active
substances in pharmacies. Accordingly, it is
appropriate to introduce the institution of criminal-
legal impact measures against legal entities into the
criminal legislation.
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