Comment to article 139. Violation of the right of state ownership of mineral resources  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Illegal use of subsurface resources, with the exception of groundwater, and transactions that directly or indirectly violate the right of state ownership of subsurface resources, –  

     they impose a fine on individuals in the amount of fifty, on officials, small business entities – in the amount of one hundred, on medium–sized businesses – in the amount of one hundred and fifty, on large businesses - in the amount of five hundred monthly calculation indices.

     2. The actions provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, –  

     they impose a fine on individuals in the amount of one hundred, on officials, small business entities – in the amount of one hundred and fifty, on medium–sized businesses – in the amount of two hundred, on large businesses - in the amount of seven hundred monthly calculation indices, with confiscation of property obtained as a result of committing an administrative offense, tools and objects of committing an administrative offense.

     The public danger of an administrative offense under Article 139 of the Administrative Code lies in the fact that the perpetrator, illegally using the subsoil, as well as making transactions, directly or indirectly violates the right of state ownership of the subsoil and causes material damage to the owner of the property.

     Article 6 of the Constitution of the Republic of Kazakhstan states: "The land and its subsoil, waters, flora and fauna, and other natural resources are state-owned.  

     In accordance with the Constitution of the Republic of Kazakhstan, the subsoil is in exclusive state ownership. Due to this, the most appropriate placement of all branches of the national economy takes place on the territory of the country, a comprehensive geological study of the subsurface and accounting for their reserves. It creates favorable conditions for the development of environmental relations.

     Exclusivity means that within the state borders of the Republic of Kazakhstan, natural resources classified as this type of property may belong only to the state. They are withdrawn from civil circulation and cannot be items of sale. Enterprises, organizations, institutions and citizens receive them for the right of use. Actions that directly or indirectly violate the right of State ownership of natural resources are prohibited.

     All the subsoil makes up a single state fund, which includes both used and unused parts of the subsoil. The unity of the fund makes it possible for the Republic of Kazakhstan to own, use and dispose of all mineral resources, regardless of who uses them.

     Possession is a legally secured opportunity to actually own the subsoil.

     Use is the right to use a part of the earth's crust located below the soil layer, and in its absence – below the earth's surface, the bottom of reservoirs and watercourses. The Code on Subsoil and Subsoil Use of the Republic of Kazakhstan regulates the use of subsoil in relation to minerals; man-made mineral formations; subsurface spaces.

     The Order is the legally secured right of the state to determine the legal fate of the subsoil in the territory of the Republic of Kazakhstan.

     However, in accordance with the procedure, conditions and within the limits established by the Code on Subsoil and Subsoil Use of the Republic of Kazakhstan, individuals and legal entities may use the subsoil within the allocated area for business purposes for a certain period of time, which is the right of subsoil use.

     The object of the offense is public relations regulated by the current legislation and aimed at ensuring the right of state ownership of natural resources in the form of subsurface.  

     The subject of the administrative offense under consideration is a subsurface area, which is recognized as a geometrized part of the subsurface with certain spatial boundaries, provided for use in accordance with the legislation of the Republic of Kazakhstan.

     The objective side of the offense lies in the actions of subsurface use entities that violate the legislation governing legal relations arising in the process of acquiring, exercising and terminating the right to subsurface use and making transactions, directly and covertly violating the right of state ownership of the subsoil.  

     According to Article 20 of the Code on Subsoil and Subsurface Use of the Republic of Kazakhstan, the right of subsurface use arises on the basis of a license for subsurface use and  

     the contract for subsurface use.  

     A subsurface use license is a document issued by a government agency and granting its holder the right to use a subsurface area for the purpose of conducting subsurface use operations within the specified subsurface area.

     A subsurface use contract is an agreement, the content, procedure for conclusion, execution and termination of which are determined by the Code on Subsoil and Subsoil Use of the Republic of Kazakhstan.  

     The right of subsurface use is acquired in the following cases::

     - granting the right of subsurface use;

     - transfer of the right of subsurface use (share in the right of subsurface use) on the basis of civil law transactions;

     - transfer of the right of subsurface use by way of succession during the reorganization of a legal entity, with the exception of transformation or inheritance.

     According to Article 21 of the Code on Subsoil and Subsoil Use of the Republic of Kazakhstan, it is terminated  

     with the termination of the license or contract for subsurface use.

     The validity of the subsurface use license is terminated in the following cases::

     1) expiration of the period for which it was issued;

     2) the death of its sole owner (including declaring him deceased), if the right of subsurface use, which arose on the basis of a license, is recognized as extortionate property in accordance with the civil legislation of the Republic of Kazakhstan.;

     3) revocation of the license or invalidation of it;

     4) the refusal of the subsurface user from the subsurface area for which the license was issued (art. 33 of the Code on Subsurface and Subsurface Use).

     The legislation also provides for cases when a license may be declared invalid.:

     1) upon establishing the fact that the state body that issued the license has knowingly provided false information that influenced its decision to issue the license;

     2) violations of the procedure for issuing a license established by this Code, which led to an unjustified decision by a state body to issue a license as a result of a malicious agreement established by a court between an official of a state body and the applicant;

     3) issuing a license to a person who has been declared legally incompetent and was such on the day of issue;

     4) if the issuance of a license is not provided for or prohibited by this Code (Article 34 of the Code on Subsoil and Subsoil Use).

     The invalidity of the license is recognized by a court decision from the date of its entry into force.  

     The validity of the subsurface use contract is terminated in the following cases::

     1) the expiration of the term for which it was concluded, including if:

     - no addendum to the contract was concluded before the end of the exploration period, providing for the consolidation of the preparatory period or the production period.;

     - no addendum to the contract providing for the consolidation of the production period was concluded before the end of the preparatory period.;

     2) the death of a person who is the sole holder of the right of subsurface use under a contract (including declaring him deceased), if such a right of subsurface use is recognized as extortionate property in accordance with the civil legislation of the Republic of Kazakhstan.;

     3) liquidation of a legal entity that is a subsurface user;

     4) early termination of the contract or its invalidation;

     5) termination of the contract by agreement of the parties;

     6) adoption by the Government of the Republic of Kazakhstan of a decision to ban the use of a subsurface area in accordance with the Code on Subsurface and Subsoil Use;

     7) the refusal (return) of the subsurface user (by the subsurface user) from the entire subsurface area(s) for which the contract was concluded (art. 38 of the Code on Subsurface Resources and Land Use).

     The grounds for invalidating a subsurface use contract are:

     1) recognition of the auction for granting the right of subsurface use as invalid;

     2) the absence of mandatory conditions in the contract for subsurface use established by the current legislation;

     3) establishing the fact that the competent authority has knowingly provided false information that influenced its decision to conclude a contract for subsurface use with this person;

     4) other grounds stipulated by the laws of the Republic of Kazakhstan.

     A subsurface use contract is declared invalid in court (Article 39 of the Code on Subsoil and Subsoil Use).

     Other transactions that directly or indirectly violate the right of state ownership of mineral resources include any transactions related to purchase and sale, donation, pledge, inheritance, etc. These transactions are initially invalid from the moment of their conclusion.

     The offense is considered completed from the moment of committing any action that violates the rights of state ownership of the land.

     The subjects of the offense may be individuals who have reached the age of 16, as well as legal entities.

     The subjective side of this offense is characterized by an intentional form of guilt.  

     According to Article 697 of the Administrative Code, cases of administrative offenses provided for in Part 1 of Article 139 of the Administrative Code are considered by the authorized body in the field of environmental protection.  

The Court has the right to consider cases of administrative offenses and impose administrative penalties.:

     1) state environmental inspectors and senior state environmental inspectors of regions, cities of republican significance, the capital;

     2) State environmental inspectors of the Republic of Kazakhstan;

     3) senior State environmental inspectors of the Republic of Kazakhstan;

     4) chief state environmental inspectors of regions, cities of national importance, the capital;

     5) The Chief State Environmental Inspector of the Republic of Kazakhstan and his deputy.

     Part 2 of the commented article defines the commission of a similar offense repeatedly as a qualifying feature within a year after the imposition of an administrative penalty under the first part of Article 139 of the Administrative Code.

     Confiscation of property obtained as a result of the commission of an administrative offense, tools and objects of the commission of an administrative offense is provided as a mandatory additional type of penalty.

     According to Article 804 of the Administrative Code, in cases of administrative offenses considered by the courts, protocols on administrative offenses provided for in Part 2 of Article 139 of the Administrative Code may be drawn up by authorized officials of the authorized body in the field of environmental protection.

     In accordance with Article 684 of the Administrative Code, judges of specialized district and equivalent administrative courts have the right to consider cases of administrative offenses provided for in Part 2 of Article 139 of the Administrative Code and impose administrative penalties.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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