(as of 04.03.2016)

The national drug strategy till 2020 is called for humanization of anti-drug legislation, for focusing more on treatment but not on punishment for narcotic drugs use. However, this does not mean that “use” or other actions connected with narcotic, psychotropic substances or their analogues do not involve inception of juridical responsibility.

According to the official statistics of the Ministry of Internal Affairs for the last years 53 % of crimes in the narcotic drugs sphere fall under the Article 309 of the Criminal Code of Ukraine (http://zakon2.rada.gov.ua/laws/show/2341-14/page9).

Article 309 of the Criminal Code of Ukraine – “illegal production, making, purchasing, storage, transportation or sending of narcotic drugs, psychotropic substances or their analogues not for selling purposes”.

Definition of the mentioned terms, stated in the Law of Ukraine “On Circulation of Narcotic Drugs, Psychotropic Substances, their Analogues and Precursors” (http://zakon5.rada.gov.ua/laws/show/863-14), namely Article 1:

• Narcotic drugs enlisted to the List of substances of natural or synthetic origin, preparations, plants that present a danger to health of population in event of their misuse
  (http://zakon5.rada.gov.ua/laws/show/770-2000-%D0%BF);
• Psychotropic substances enlisted to the List of substances of natural or synthetic origin, preparations, natural materials, that can evoke dependence and depressively or stimulatory influence central nervous system or evoke disturbances of perception, or emotions, or thinking, or behavior and present a danger to health of population in event of their misuse (http://zakon5.rada.gov.ua/laws/show/770-2000-%D0%BF);
• Precursors are the substances and their salts that are used in production and making of narcotic drugs and psychotropic substances enlisted to the List (http://zakon5.rada.gov.ua/laws/show/770-2000-%D0%BF);
• Analogues of the narcotic drugs and psychotropic substances, prohibited for circulation in Ukraine, substances of natural or synthetic origin not enlisted to the List, chemical structure and properties of which are similar with the chemical structure and properties of the narcotic drugs and psychotropic substances, psychoactive action of which these substances reproduce.

As we see, the mentioned Article of the Criminal Code does not apply the term “use” of narcotic drugs, psychotropic substances or their analogues. However, this does not mean that the person, who uses narcotic drugs does not fall under this Article. As the process of narcotic drugs use is impossible without making, purchasing or transportation of such substances. One can not exclude occurrences when such person commits acts on storage of the abovementioned substances above all.

The mentioned acts, namely: illegal production, making, purchasing, storage, transportation or sending of narcotic drugs, psychotropic substances or their analogues not for selling purposes shall be punished by:

1. a fine from fifty to one hundred nontaxable minimum incomes of persons (from 850 to 1700 UAH);
2. or corrective labor for the period up to two years;
3. or arrest for the period up to six months or imprisonment for the period up to three years;
4. or imprisonment for the same term.

The same acts, committed repeatedly or by preliminary plot of a group of persons, or a person, who earlier committed one of such crimes:

1. illegal production, making, purchasing, storage, transportation or sending of narcotic drugs, psychotropic substances or their analogues;
   
2. stealing, defalcation, demanding of narcotic drugs, psychotropic substances or their analogues, or acquisition of them by means of fraud or misuse of official position;
3. planting or cultivation of opium poppy or hemp;
4. organization or maintenance of places of illegal use, production, making of narcotic drugs, psychotropic substances or their analogues, if subject of such acts were narcotic drugs, psychotropic substances or their analogues in large amounts are punished by imprisonment for the term from two to five years.

Part 3 of the Article 309 of the Criminal Code of Ukraine provides such qualifying features as:

1. attraction of a juvenile person to criminal activity (that means a person up to 18 years);
2. subject of such acts is expressed in extremely large amounts.

One cannot but pay attention to the fact that the Criminal Code of Ukraine also provides a variant of exemption from criminal liability if a person voluntarily applies to the medical treatment facility and beginning of drug treatment. Such person is exempt from criminal liability for acts, provided by Part 1 of this Article (namely illegal production, making, purchasing, storage, transportation or sending of narcotic drugs, psychotropic substances or their analogues not for selling purposes).

“Large amount” of narcotic drugs, psychotropic substances or their analogues is determined in the Order of the Ministry of Justice of Ukraine No 188 dated 01.08.2000 “On Approving Tables of Small, Large and Extremely Large Amounts of Narcotic Drugs, Psychotropic Substances and Precursors in Illegal Circulation” (http://zakon5.rada.gov.ua/laws/show/z0512-00).

For example, “large amount” of cannabis is from 500 to 2500 grams. However, we remember that criminal liability for such qualifying sign arises namely according to Part 3 of the Article 309 of the Criminal Code of Ukraine, that does not exclude arise of liability under the same Article but Part 1.

Additionally criminal liability is not a single type of liability that can be applied to such person.

Thus, in Article 44 of the Code on Administrative Infractions of Ukraine it is provided liability for illegal production, purchasing, storage, transportation or sending of narcotics, psychotropic substances or their analogues not for selling purposes in small amounts, namely:

1. fine from 25 to 50 nontaxable minimum incomes of persons (namely from 425 to 850 UAH);
2. administrative arrest for the period up to fifteen days;
3. public works for the term from twenty to sixty hours.

What a small amount is? In remark to the mentioned Article it is defined that a small amount of narcotic drugs and psychotropic substances is determined by a central authority of executive power that guarantees forming of a state policy in the sphere of health care together with a central authority of executive power that guarantees forming of a state policy in the sphere of circulation of narcotic drugs, psychotropic substances, their analogues or precursors, counteraction of their illegal circulation.

It means that the amount of the mentioned substances according to the Order of the Ministry of Justice of Ukraine No. 188 dated 01.08.2000 “On Approving Tables of Small, Large and Extremely Large Amounts of Narcotic Drugs, Psychotropic Substances and Precursors in Illegal Circulation” (http: // zakon5.rada.gov.ua/laws/show/z0512-00).

For example: small amount of cannabis is up to 5 m.

Along with the Criminal Code of Ukraine, the Part 2 of the Article 44 of the Code on Administrative Infractions of Ukraine contains a provision that allows exempt from the administrative liability, namely: if such person voluntarily delivers the narcotic drugs or psychotropic substances that he/she had in small amounts and that he/she produced, made, purchased, stored, transported, sold not for selling purposes.

Such kinds of liability can be applied only when a person does not have a correspondent aim, that is sale of such substances.

Thus, only by Part 1 of the Article 307 of the Criminal Code of Ukraine, a person guilt in illegal production, making, purchasing, storage, transportation or sending of narcotic drugs, psychotropic substances or their analogues for selling purposes, as well as illegal sale of narcotic drugs, psychotropic substances or their analogues are punished by imprisonment for the period from four to eight years. (Http://zakon2.rada.gov.ua/laws/show/2341-14/page9).

Such parts of the Article 307 of the Criminal Code of Ukraine provide a range of the qualifying characteristics:

• the same acts, committed repeatedly or by preliminary plot of a group of persons;
• the same acts, committed by a person who earlier has committed one of crimes, provided by the Articles 308-310, 312, 314, 315, 317 of this Code;
• committing such acts with attraction of a juvenile person;
• sale of narcotic drugs, psychotropic substances or their analogues at places, aimed at conducting educational, sporting and cultural events, and other places of mass stay of people;
• sale or deliver this substances to the places of imprisonment, or if subject of such actions were narcotic drugs, psychotropic substances or their analogues in large amounts or especially dangerous narcotic drugs and psychotropic substances;
• committed with attraction of a juvenile or minor etc.

If a person, who voluntarily delivered narcotic drugs, psychotropic substances or their analogues and indicated the source of their purchasing or assisted in detection of crimes, connected with illegal circulation, such person is exempt from criminal liability for their illegal production, making, purchasing, storage, transportation or sending (part 1 of this Article, part 1 of the Article 309 of this Code).

Also the Criminal Code of Ukraine contains a number of other articles that provide liability for: bending to use of narcotic drugs, psychotropic substances or their analogues (Article 315 of the Criminal Code of Ukraine); illegal public use of narcotic drugs (Article 316 of the Criminal Code of Ukraine); illegal insertion of narcotic drugs, psychotropic substances or their analogues to organism (Article 314 of the Criminal Code of Ukraine) etc.

The topic of narcotic drugs is a burning question for our society. Despite of the fact that narcotic drugs have become a global problem with which law enforcement authorities conduct fight for the last years, the topic of narcotic drugs often becomes a pressure factor not only for persons guilty in commitment such crimes, but also honest people.

We remind that in spite of humanization of the national legislation the legal liability for “use” of narcotic drugs is rather serious and can negatively imprint all your life. Every such situation is rather individual, but also demands maximum attentiveness, knowledge of rights and means of escape from or minimization of liability.