An individual is subject to administrative responsibility only for those offenses for which his guilt has been established.

By the decree of the State environmental inspector of the State Institution "Department of Ecology of the Akmola region" (hereinafter referred to as the Department) K. dated September 18, 2012, the head of the State Institution "Department of Housing and Communal Services, Passenger Transport and Highways" of the Enbekshildersky district M. was brought to administrative responsibility under Article 270 of the Administrative Code with a fine of 15 MCI, which amounted to 24,270 tenge. The resolution was left unchanged by the decision of the Chief State Environmental Inspector of the Department of Environmental Protection dated October 08, 2012. By the ruling of the Specialized Administrative Court of the city of Kokshetau dated October 25, 2012, the Department's resolution and definition remained unchanged.  The protest of the Deputy Prosecutor General of the Republic of Kazakhstan raises the issue of canceling the ruling of the regional court due to the inconsistency of the judge's conclusions with the factual circumstances of the case set out in the decision on the administrative offense case, the evidence examined during the consideration of the complaint, protest, and improper application of the law on administrative responsibility. The supervisory judicial board upheld the decision and the ruling of the State environmental inspector of the Department, and the ruling of the specialized administrative court of the city of Kokshetau regarding M., the protest was not satisfied on the following grounds.

It can be seen from the case file that the basis for bringing M. to administrative responsibility under Article 270 of the Administrative Code was the results of an inspection, during which it was revealed that, in violation of the requirements of Article 289 of the Environmental Code, M. had not developed a passport for hazardous waste. The protest states that the disposition of Article 270 of the Administrative Code provides for liability for violations of the rules of accounting, disposal and neutralization of production and consumption waste. It follows that responsibility under this article comes for non-compliance with the specific requirements of regulations governing the accounting, disposal and disposal of waste and consumption. According to P.5) Article 19 of the Environmental Code, local representative bodies of regions, cities of republican significance, and the capital in the field of environmental protection adopt, within their competence, rules of environmental management, for violations of which administrative responsibility is provided.

However, in the territory of the region, a regulatory act – the Rules governing the accounting, disposal and neutralization of industrial and consumer waste have not been adopted, as evidenced by a letter from the secretary of the regional maslikhat. In addition, it follows from the protocol on an administrative offense dated September 18, 2012, that M. did not develop a passport for hazardous waste, nor did it specify which waste from the activities of the State Institution "Department of Housing and Communal Services, Passenger Transport and Highways" does not have a passport. It has been established that the Department of Housing and Communal Services, Passenger Transport and Highways of the Yenbekshildersky district has an administrative building heated by two homemade boilers, which generate ash during operation. By virtue of part 2 of Article 287 of the Environmental Code, 3 levels of waste hazard are established for the purposes of transportation, disposal, storage and burial in accordance with the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.: 1) Green - G index; 2) Amber - A index; 3) Red is the R index. In accordance with Annex 8 to the waste classifier approved by the Order of the Minister of Environmental Protection (hereinafter referred to as the Minister) dated May 31, 2007 No. 169–p "GG other waste containing mainly inorganic components that may contain metals and organic materials", GG030 ash residue and slag discharged from power plants operating coal-fired, included in the Green List of waste.

According to the order of the Minister, ash from coal processing is assigned to the Green List, for which, according to part 2 of Article 289 of the Environmental Code, the preparation of a passport of hazardous waste is not provided. Since, by virtue of part 1 of Article 13 of the Administrative Code, an individual is subject to administrative responsibility only for those offenses in respect of which his guilt has been established, M., in the prosecutor's opinion, was brought to justice unreasonably. In addition, the protest points to procedural violations committed by the authorized body during the consideration of the case, which consist in not explaining M. the right to have a defender. The Court, leaving the Department's resolution and definition unchanged, motivated this by the fact that since the receipt of all permits for emission into the environment by official M., the issue of compiling, approving and registering hazardous waste passports in accordance with the established procedure has not been resolved.

This conclusion is reasonable. It follows from article 287 of the Environmental Code that hazardous waste includes waste containing one or more of the substances specified in paragraph 1 of this article, including ecotoxic substances (subparagraph 11). The passport of hazardous waste (paragraphs 1 and 2 of Article 289 of the Environmental Code) is drawn up and approved by individuals and legal entities whose economic activities generate hazardous waste, and compiled for waste specified in paragraph 1 of Article 287 of this Code and for waste from the Amber and Red Lists. As follows from the waste classifier approved by the order of the Minister, ash has the hazardous waste code H12 - "ecotoxic substances", which, if released into the environment, pose or may immediately or eventually pose a threat to the environment as a result of bioaccumulation and/or have toxic effects on biotic systems. Since the preparation of a passport for these substances is mandatory, M. was brought to administrative responsibility under Article 270 of the Administrative Code reasonably. The arguments set out in the protest about the procedural violation, expressed in the failure to clarify M.'s right to have a lawyer, cannot serve as a basis for the cancellation or amendment of the contested acts, since such a right has been clarified in court, which indicates the elimination of the violated right of the person. 

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