Subject оf Article 305 оf the Criminal Code оf Ukraine as a Mandatory Element of a Criminal Offense
Authors: Soroka Svitlana 
Published: October 2024

The subject matter of Article 305 of the Criminal Code of Ukraine has been considered as a mandatory element of the offense. The opinions of other authors regarding the definition of the concept of the subject matter of a criminal offense have been analyzed, and it has been concluded that the subject matter of a criminal offense should be understood as things of the material world that may be the subject of a criminal offense or are related to it. The subject matter of a criminal offense is an optional element of the offense. If the subject matter of a criminal offense is directly indicated in the disposition of the relevant article of the Special Part of the Criminal Code, it acquires the status of a mandatory element. Thus, the subject matter of Article 305 of the Criminal Code of Ukraine is narcotic substances, psychotropic substances, their analogues or precursors, or counterfeit medicinal products. Considering that this subject matter is directly mentioned in the article, it is a mandatory element of the offense, and the list of items mentioned in the article is exhaustive and cannot be expanded. In addition, the size and degree of social danger of a narcotic substance, psychotropic substance, their analogue or precursor, or counterfeit medicinal product affect the qualification, as the person who commits the criminal offense is held criminally responsible for the basic, qualified, or particularly qualified form of the offense. Therefore, after analyzing the subject matter of paragraphs 1, 2, and 3 of Article 305 of the Criminal Code of Ukraine, it has been concluded that there are no issues in the qualification of criminal offenses involving narcotic substances, psychotropic substances, or counterfeit medicinal products, as the legislator clearly differentiates the responsibility based on the size of the narcotic substance, psychotropic substance, their analogues or precursors, or counterfeit medicinal product (small, large, particularly large). However, regarding the qualification of criminal offenses involving particularly dangerous narcotic substances or psychotropic substances, there is a problem, as particularly dangerous narcotic substances and psychotropic substances are only the subject matter of paragraph 2 of Article 305 of the Criminal Code of Ukraine. Therefore, it is proposed to further differentiate the responsibility for criminal offenses involving particularly dangerous narcotic substances or psychotropic substances, taking into account their size (large, particularly large), and accordingly make changes to paragraph 3 of Article 305 of the Criminal Code of Ukraine, and present paragraph 4 in the following version: 3. Smuggling of narcotic substances, psychotropic substances, their analogues or precursors, or counterfeit medicinal products committed by an organized group, as well as if the subject of smuggling was narcotic substances, psychotropic substances, their analogues or precursors, or counterfeit medicinal products in particularly large quantities or particularly dangerous narcotic substances or psychotropic substances in large quantities, shall be punished... 4. Smuggling of particularly dangerous narcotic substances, psychotropic substances in particularly large quantities shall be punished...