Consequences of drug and psychotropic substance use

Criminal liability for the illegal trafficking (manufacture, processing, acquisition, storage, transportation, or dispatch) of narcotic drugs, psychotropic substances, or their precursors or analogues is provided for by Art. 328 of the Criminal Code of the Republic of Belarus.

By the Law of 25.01.2015, Art. 328² was introduced into the Criminal Code, providing for criminal liability for the consumption of narcotic drugs or psychotropic substances in a public place without a doctor's prescription, or the consumption of their analogues in a public place, as well as appearing in a public place in a state caused by the consumption of narcotic drugs or psychotropic substances or their analogues, toxic or other stupefying substances without a doctor's prescription, which offends human dignity and public morality, or being at the workplace during working hours in a state caused by the consumption of narcotic drugs or psychotropic substances or their analogues, toxic or other stupefying substances without a doctor's prescription, committed within a year after the imposition of administrative penalties for the same offenses.

The Criminal Code does not contain a list of narcotic drugs, psychotropic substances, their precursors and analogues, as there are a huge number of such substances, and their number is growing every day. The list of narcotic drugs, psychotropic substances and their precursors is contained in the Resolution of the Ministry of Health of the Republic of Belarus of 11.02.2015 No. 19 "On the establishment of the republican list of narcotic drugs, psychotropic substances and their precursors subject to state control in the Republic of Belarus", which is constantly updated. Thus, if a specific substance is not on this list, criminal liability for its trafficking does not arise. Regarding analogues, Decree of the President of the Republic of Belarus No. 6 of 28.12.2014 "On urgent measures to combat drug trafficking" introduced the following procedure for their restriction

illegal circulation. In the Republic of Belarus, the **circulation of analogues of narcotic drugs and psychotropic substances is prohibited from midnight of the day following the day of placement of information about such chemical substances on the official website of the Ministry of Internal Affairs on the global computer network Internet**.

The criminal law provides for increased responsibility for the circulation of narcotic drugs, psychotropic substances, their precursors and analogues (hereinafter referred to as "narcotic drugs") **for the purpose of sale** or **for the sale itself**. At the same time, the legislator clarifies that **the presence of the intent to sell in a person's actions** may be indicated by circumstances such as a prior agreement on the supply of narcotic drugs, an undertaking to pay for the service rendered with drugs, a significant amount of narcotic drugs, the acquisition of these drugs by a person who does not use them. At the same time, it does not matter whether the acquired narcotic drugs were intended for sale in the Republic of Belarus or other states (Resolution of the Plenum of the Supreme Court of the Republic of Belarus of March 26, 2003

No. 1 "On judicial practice in cases of crimes related to narcotic drugs, psychotropic substances, their precursors and analogues, potent and poisonous substances (Articles 327-334 of the Criminal Code)"). Thus, in order to prove the intent to sell, the criminal prosecution authority is not obliged to prove the fact of sale itself (by conducting controlled purchases, etc.). It is sufficient to prove the existence of the above-mentioned circumstances. Moreover, the concept of "significant amount" is not quantitatively defined in any way. If a person has had many small packages with a narcotic substance or a large volume of the substance seized, and especially if pharmaceutical scales have also been seized from him, it is practically impossible for the defense to prove to the court that the intent to sell was absent in the person's actions. The legislator also interprets the concept of **"sale"** as broadly as possible. Sale is understood as both paid and gratuitous transfer of narcotic drugs to other persons through sale, gift, exchange, debt payment, lending,introduction of injections and by other means. The only exception is that an injection by one person to another cannot be qualified as distribution if the narcotic substance belongs to the consumer.

If there was distribution or illegal trafficking for the purpose of distribution of especially dangerous narcotic substances or distribution of narcotic substances in a large quantity, criminal liability is incurred under Part 3 of Article 328 of the Criminal Code, with a penalty of 8 to 15 years of imprisonment. The list of especially dangerous narcotic substances is contained in the Resolution of the Ministry of Health of the Republic of Belarus of February 11, 2015 No. 19 (List No. 1). A large quantity is not established for all narcotic substances. Moreover, for different types of narcotic substances, the quantitative values of a large quantity differ significantly. The corresponding list is approved by the Resolution of the Council of Ministers of the Republic of Belarus of November 24, 2000 No. 1785 "On approval of the list of narcotic drugs, psychotropic substances, their analogues, detected in illicit trafficking, with their quantitative assessments".

The issue of criminal liability for the trafficking of smoking mixtures is resolved as follows. If the composition of a smoking mixture includes a substance specified in the republican list, approved by the Resolution of the Ministry of Health of the Republic of Belarus of February 11, 2015 No. 19, or an analogue of a narcotic substance published on the website of the Ministry of Internal Affairs of the Republic of Belarus, then illegal trafficking of narcotic substances takes place. It is important to consider here that if, at the time of trafficking of the smoking mixture, the substances contained therein were not included in the Republican list and were not published on the website of the Ministry of Internal Affairs of the Republic of Belarus, and were subsequently included in it, then the person does not incur criminal liability, as the criminal law does not have retroactive effect. For example, in January 2015, a courier transported a smoking mixture from a seller to a buyer, and in March 2015, a substance included in the composition of this smoking mixture was included in the Republican list or published on the website of the Ministry of Internal Affairs of the Republic of Belarus. In this case

in case the courier will not be prosecuted for the transportation of narcotic drugs. However, if a person in January 2015 acquired a smoking mixture that did not contain narcotic drugs, and kept it until March 2015, when a narcotic drug "appeared" in it, this constitutes possession of narcotic drugs, since responsibility for possession of narcotic drugs arises regardless of the duration of storage.

In practice, there are cases when a person, out of friendly motives, wishes to conceal the fact of selling narcotic drugs to him by his acquaintances and states that he himself, without the knowledge of this acquaintance, took drugs from him and used them. With such explanations, the person significantly worsens his situation, as these actions of the person constitute the offense of "theft of narcotic drugs" (Art. 327 of the Criminal Code).

One should not forget about the possibility of avoiding criminal liability for illegal drug trafficking. Thus, a person who voluntarily surrenders narcotic drugs, psychotropic substances, their precursors or analogues, and actively contributes to the detection or suppression of a crime related to the illegal trafficking of these means, substances, the exposure of persons who committed them, the discovery of property obtained by criminal means, is exempted from criminal liability for this crime.

Assistant to the Vitebsk Transport Prosecutor

Shevernovskaya V.O.