Comment to Article 277. Violation of environmental requirements for economic and other activities of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
Violation of environmental requirements in the use of natural resources, design, placement, construction and reconstruction, commissioning and operation of enterprises, structures and other facilities, operation of industrial, energy, transport and communications facilities, agricultural and land reclamation facilities, construction of cities and other settlements, military and defense facilities, military and space activities carried out by persons responsible for compliance with these requirements, if this has caused significant environmental pollution., causing harm to human health, mass death of the animal and plant world and other grave consequences, —
is punishable by imprisonment for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
In accordance with Part 1 of Article 31 of the Constitution of the Republic of Kazakhstan, the state aims to protect the environment favorable for human life and health. In order to ensure the technological discipline necessary for environmental protection in the course of work related to the design, placement, construction, reconstruction, commissioning and operation of enterprises, structures and other facilities, criminal liability for this crime has been established for the first time in the Criminal Code of the Republic of Kazakhstan.
The danger of the crime in question lies primarily in the fact that, violating the provisions of Article 31 of the Constitution of the Republic of Kazakhstan, it causes significant harm to human life and health (including genetic changes). Along with this, significant damage is caused to the natural objects themselves (flora and fauna, the state of atmospheric air, water, soil, and so on).
The object of this crime is environmental safety. As a result of the analyzed act, any of the three immediate objects may be affected.:
a) Environmental stability;
b) natural resource potential;
c) the constitutionally guaranteed right of every citizen to a favorable environment.
In the science of criminal law, the opinion has been expressed that the object of this crime is "a normatively defined procedure for the design, placement, construction, commissioning and operation of industrial, agricultural, scientific and other enterprises, structures, etc."
The drafting of projects for various types of facilities, their placement, construction and commissioning require strict compliance with the rules that ensure environmental safety. The disposition of this rule is a blank one, therefore, when qualifying an act under art. 277 of the Criminal Code of the Republic of Kazakhstan, it is necessary to indicate in the indictment and sentence which rules were violated and which normative act they are provided for. In some cases, an expert examination or consultation is necessary.
Design includes activities related to the development of project documentation and a feasibility study of an object being created, reconstructed or undergoing major repairs.
The placement of an object involves activities related to its spatial location on the ground. It must comply with state urban planning regulations and rules, the requirements of zoning territories, and ensuring favorable living conditions for the population.
Construction is understood as the activity of creating an object, as well as its reconstruction and major repairs.
The commissioning of the facility is a procedure regulated by regulations for the delivery and acceptance of the finished facility.
The operation of the facility consists in its use in accordance with its intended purpose. General environmental requirements for economic and other activities and environmental requirements for types of economic and other activities are contained in chapters 29 and 30 of the Environmental Code of the Republic of Kazakhstan.
The objective side of the composition includes violation of environmental requirements when using natural resources, the consequence in the form of significant environmental pollution, harm to human health, mass death of the animal or plant world and other grave consequences and the causal relationship between violation of environmental requirements and the consequences that have occurred.
Violation of environmental requirements can be committed either through action or inaction, since a person may violate the relevant environmental requirements by non-compliance, non-compliance and improper execution.
Passive criminal behavior is characteristic of environmental crimes committed by those persons who fail to comply with their official duties to comply with environmental safety rules, or to ensure their compliance if there is a real opportunity to do so, taking into account the individual volitional and intellectual qualities of the perpetrators. (For example, failure to comply with environmental safety regulations by a person who is charged with this duty by virtue of a regulatory provision, or failure to take measures to repair, control, and ensure proper operation of wastewater treatment plants and installations by a person responsible for this. Active criminal behavior is possible on the part of responsible persons who design, place, build, commission and operate the relevant facilities, in the case when the perpetrators improperly comply with environmental safety rules.
In addition, a violation of environmental requirements in the use of natural resources may consist in: committing actions that are explicitly prohibited by the Environmental Code at any stage of the use of natural resources. These include, for example, failure to take into account standards for the permissible anthropogenic impact on the environment; the absence of measures in the draft to prevent and eliminate environmental pollution; failure to comply with environmental restoration requirements.; construction and reconstruction of buildings, structures and other facilities without approved projects or for projects with a negative conclusion of the state environmental assessment; modification of approved projects to the detriment of environmental protection requirements, etc.
The crime is considered completed at the time of the occurrence of harmful consequences specified in the disposition of art. 277 of the Criminal Code of the Republic of Kazakhstan. At the same time, it is sufficient that such consequences were caused by a violation of the rules committed during the production of one of the types of work specified in art. 277 of the Criminal Code of the Republic of Kazakhstan.
The environment is understood as 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.
Violations of environmental requirements (rules of environmental protection) in the course of work can be expressed in both non-compliance and improper implementation of the relevant rules. But in any case, a prerequisite for liability under Article 277 of the Criminal Code is the occurrence of certain consequences: significant environmental pollution; harm to human health; mass death of wildlife and other grave consequences.
According to paragraph 34 of Article 1 of the Environmental Code of the Republic of Kazakhstan, environmental pollution should be understood as the entry into the environment of contaminated substances, radioactive materials, production and consumption waste, as well as the environmental impact of noise, vibrations, magnetic fields and other harmful physical influences.
When determining significant environmental pollution, it is necessary to proceed from specific circumstances. Qualitative and quantitative characteristics of pollutants, their distribution area, danger to people and the environment, etc. should be assessed.
Harm to human health should be understood as causing minor harm to health, regardless of whether it resulted in disability, or severe or moderate harm to health.
The mass death of animals and plants is the death of birds and animals, including aquatic ones, in a certain area, at which their mortality rate exceeds the average by more than 3 times.
Other grave consequences should be understood as significant environmental changes, deterioration or destruction of natural objects, the restoration of which requires a long time or significant material costs, as well as the emergence of a situation that prevents the use of natural resources. Such a change in the environment can cause, for example, the termination of the activities of enterprises, institutions, organizations, the forced relocation of large groups of people, acute shortages of water and food, land degradation, and damage to a significant number of forests.- and agricultural products, destruction of buildings and structures that caused significant material damage, significant damage or mass death of other environmental objects, other significant property damage (including lost profits, expensive restoration work), and other negative consequences that hinder the conservation and lawful use of the environment.
The mass destruction of the animal and plant world, poisoning of the atmosphere or water resources, and the commission of other actions that have caused an ecological catastrophe that have caused irreversible harmful consequences for humans and the natural environment, as a result of which nature has lost the qualities that are its content and cannot be restored artificially, should be qualified as a crime against the peace and security of mankind (Article 161 – ecocide).
The necessary causal relationship must be established between the violation of environmental requirements and the socially dangerous consequences that have occurred.
The subject of the crime in question is a person who has reached the age of 16, who is charged by law or by-law with the duty to ensure compliance with environmental requirements; abuse of official authority or authority of a person performing managerial functions in a commercial or other organization, which led to the commission of the crime under analysis, should be classified according to the totality of crimes of Articles 277 and 307, 228 of the Criminal Code. In the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 "On the application by courts of legislation on liability for certain environmental crimes," it says: the subjects of environmental crimes can be any individuals, including persons authorized to perform government functions and persons equated to them, officials, as well as persons holding a responsible public position and persons performing managerial functions in state and non-state organizations., commercial and non-profit organizations.
In cases where environmental crimes have been committed by a person authorized to perform government functions and persons equivalent to them, an official, as well as a person holding a responsible government position or a person performing managerial functions in a commercial or non-profit organization, if their actions also show signs of abuse of official authority or the authority of a person performing managerial functions. in a commercial or non-profit organization, Their actions should be qualified under the relevant articles of the Criminal Code of the Republic of Kazakhstan, which provide for liability for both environmental crimes and corruption and other crimes against the interests of public service and public administration, or crimes against the interests of service in commercial and other organizations.
If, according to the norm of the criminal law, the commission of an act by the perpetrator using his official position is provided for as a qualifying feature of an environmental crime, then responsibility comes only under the article (part of the article) The Criminal Code provides for liability for environmental crimes.
The issue of the subjective side of the crime under consideration is ambiguously resolved, due to the lack of mention of it in the disposition of art. 277 of the Criminal Code. Unfortunately, nothing is said about the subjective side of environmental crimes in the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan.
To resolve the issue correctly, it is necessary to refer to the provisions of the General Part of the Criminal Law. According to Part 4 of Article 19 of the Criminal Code of the Republic of Kazakhstan, an act committed through negligence is recognized as a crime only if it is specifically provided for in the relevant article of the Special Part of the Code. Since there is no such indication of the law in Article 277 of the Criminal Code, the possibility of violating environmental requirements should be recognized only intentionally. At the same time, the intent is indirect. For example, if the perpetrator was aware of the public danger of violating environmental requirements during the operation of an industrial facility, foresaw the possibility of mass death of animals as a result, did not want, but deliberately allowed the occurrence of this harm or treated it indifferently.
The acts of the guilty person provided for in the commented article and committed with direct intent should be classified in combination with crimes against the person, property, etc., depending on the volitional purposefulness of the perpetrator. In my opinion, it is quite likely that this crime was committed in the form of negligence, for example, when violating environmental requirements during work by a person responsible for compliance with these requirements, who did not foresee the possibility of socially dangerous consequences due to his negligence (disregard for compliance with functional duties). However, as noted above, the absence of a reference to "negligence" in the disposition of Article 277 does not allow this crime to be subjectively recognized as negligent. The crime provided for in Article 277 refers to crimes of minor gravity.
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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