Comment to Article 161. Ecocide of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Mass destruction of flora or fauna, poisoning of the atmosphere, land or water resources, as well as the commission of other actions that have caused or are capable of causing an environmental disaster, —
are punishable by imprisonment for a term of ten to fifteen years.
The public danger of this rule is caused by the increasing concern not only of the Kazakh legislator, but also of the international community regarding the damage caused by environmental crimes to the environment, which is often destructive and affects a significant part of the population. Its content is predetermined both by international legal regulation in the field of protecting human security, which classifies causing significant and long-term damage to the environment as crimes against peace and humanity, and by the development of science and technology, as a result of which tools have been created that can cause an environmental catastrophe. Ecocide (from the Greek oikos - home, homeland; Latin cgedere – to kill, literally the destruction of a clan, tribe) is the infliction of such harm to the environment that poses an immediate threat to the life and health of individual human communities or humanity as a whole.
The immediate object of ecocide is the safety of humanity and its habitat.
In accordance with the Concept of Environmental Safety of the Republic of Kazakhstan for 2004-2015, approved by By Decree of the President of the Republic of Kazakhstan dated December 3, 2003, "Environmental safety as an integral part of the national security of the Republic of Kazakhstan is a prerequisite for sustainable development and serves as the basis for preserving natural systems and maintaining appropriate environmental quality."
Environmental security is a state of protection of vital interests and rights of an individual, society and the state from threats arising from anthropogenic and other environmental impacts (p.1), as an integral part of national security, it is also an essential component of international security. The subject of this crime is not only the flora and fauna, the atmosphere, land and water resources specified in the disposition of art. 161 of the Criminal Code of the Republic of Kazakhstan, but also the entire environment as a whole.
The environment, according to paragraph 24 art. 1 of the Environmental Code of the Republic of Kazakhstan is a set of natural and artificial objects, including atmospheric air, the ozone layer of the Earth, surface and groundwater, land, subsoil, fauna and flora, as well as climate in their interaction.
Atmospheric air, in accordance with the Law of the Republic of Kazakhstan "On Atmospheric Air Protection" dated March 11, 2002, is a component of the environment, which is a natural mixture of atmospheric gases.
The ozone layer according to the definition Vienna Convention for the Protection of the Ozone Layer (March 22, 1985) means the layer of atmospheric ozone above the boundary layer of the planet.
The water resources of the Republic of Kazakhstan, in accordance with the Water Code of the Republic of Kazakhstan, are reserves of surface and groundwater concentrated in water bodies that are used or can be used.
Land resources, in accordance with the Land Code of the Republic of Kazakhstan, is land that is used or can be used in the course of economic and other activities to meet the material, cultural and other needs of society.
The subsoil, in accordance with the Law "On Subsoil and Subsoil Use" dated January 27, 1996, is a part of the Earth's crust located below the soil layer, and in its absence - below the earth's surface and the bottom of seas, lakes, rivers and other bodies of water, extending to depths accessible for conducting subsurface use operations, taking into account scientific and technological progress.
The plant world is understood as the totality of all plant communities of the earth of the Republic of Kazakhstan, which is characterized by a certain number and compatibility of species and various forms of plants, their spatial structure and dynamics.
Wildlife, in accordance with the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife" dated July 9, 2004, is understood as a set of animals permanently or temporarily residing in the territory of the Republic of Kazakhstan, as well as related to the natural resources of the continental shelf and the exclusive economic zone of the Republic of Kazakhstan. The objective side of the crime is characterized by actions committed in one of the forms prescribed by law.:
a) mass destruction of flora or fauna;
b) poisoning of the atmosphere, land or water resources;
c) committing other actions that have caused or are capable of causing an environmental disaster.
As well as the causal relationship between these actions and the consequences.
The destruction of flora or fauna is an action that "leads to the reduction and then complete extinction of plant or animal communities.
Mass destruction should be understood as destruction that goes beyond the scope of general environmental crimes, spreading either to entire populations or to significant territories. At the same time, the sign of mass character is evaluative and should be established based on all the circumstances of the case.
Poisoning of the atmosphere, land or water resources is expressed in the critical saturation of the earth, reservoirs and air with substances of chemical or biological origin harmful to human health, wildlife or plant communities, as well as radioactive substances that cause or are capable of causing the death of living organisms, and, above all, humans.
Other actions should include any intentional industrial, scientific, research or other human activity that has caused or may cause an environmental disaster.
The crime should be considered over from the moment of the onset of the consequences - an environmental disaster. An ecological disaster (criminal consequence) is the infliction of such damage to an ecosystem that is inevitably associated with irreversible global consequences for the environment and human existence in any area of the Earth or on the planet as a whole.
The subjective side is characterized by direct or indirect intent. The perpetrator is aware that he is committing mass destruction of flora or fauna, as well as poisoning the atmosphere or water resources, anticipates the inevitability or possibility of an environmental disaster, wants or consciously allows its occurrence or is indifferent to it.
The subject of the crime in question can only be a sane individual who has reached the age of 16.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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