Comment to Article 278. Violation of environmental requirements in the production and use of environmentally potentially hazardous chemical, radioactive and biological substances of the Criminal Code of the Republic of Kazakhstan

     1. Violation of environmental requirements during the production, transportation, storage, burial, use or other handling of environmentally potentially hazardous chemical, radioactive and biological substances, if these acts have created a threat of causing significant harm to human health or the environment., —  

   is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by restriction of liberty for a term of up to three years, or by imprisonment for a term of up to two years.    

2. The same act that caused pollution, poisoning or contamination of the environment, causing harm to human health or mass death of the animal or plant world, as well as committed in an area with an environmental emergency, —    

is punishable by imprisonment for a term of up to five years.    

 3. The acts provided for in the first or second parts of this Article, which negligently caused mass illness of people or death of a person, —

    are punishable by imprisonment for a term of three to eight years.

     According to paragraph 9 of Article 5 of the Law of the Republic of Kazakhstan "On National Security of the Republic of Kazakhstan" dated June 26, 1998, one of the threats to the national security of the Republic of Kazakhstan is a sharp deterioration in the environmental situation, natural disasters and other emergencies of a natural and man-made nature, epidemics and epizootics.    

The public danger of violating environmental requirements in the production and use of environmentally potentially hazardous chemical, radioactive and biological substances is to undermine the environmental safety of the Republic of Kazakhstan, create a threat to the environmental safety of society, cause significant harm to human health and the environment, as well as human death, the onset of mass human disease.   

  The object of the crime in question is the environmental safety of the Republic of Kazakhstan. Environmental safety in accordance with Article 1 of the above—mentioned Law of the Republic of Kazakhstan, as well as paragraph 57 of Article 1 of the Environmental Code of the Republic of Kazakhstan is a state of protection of vital interests and rights of individuals, society and the state from threats arising from anthropogenic and other environmental impacts.     

Optional objects can be: human life and health, habitat and viability of wildlife, vegetation, etc.    

 The subject of the crime is environmentally potentially dangerous chemical, radioactive and biological substances.   

  Chemicals include toxic chemicals that do not decompose and actively affect the human body and the environment; harmful chemicals used in agricultural production (chemical plant protection products, mineral fertilizers, biostimulants).

     Radioactive substances are substances containing elements with the ability to transform into other elements, accompanied by the emission of nuclear radiation.

Radioactive substances include natural radioactive elements (uranium, plutonium, etc.). Radioactive substances can be in any state (gaseous, liquid or solid, in packaging, various products, etc.).    

 Environmental requirements for the production and use of potentially hazardous chemical and biological substances, genetically modified products and organisms are contained in Chapter 40 of the Environmental Code of the Republic of Kazakhstan.  

   Articles 280 and 281 of the Environmental Code, which deal with environmental requirements for the production and use of potentially hazardous chemicals (Articles 280) and environmental protection from harmful and uncontrolled biological effects (Articles 281), state that during operations for the production and use of potentially hazardous chemical, biological substances, including the number of genetically modified organisms and products should be ensured:   

   1) compliance with the established standards of maximum permissible environmental impact during production, storage, transportation and use;     

2) implementation of measures to prevent harmful effects of their use on public (human) health and the environment;     

3) the use of genetically modified products only within the framework of the list authorized for use by the authorized body in the field of environmental protection and the state body in the field of sanitary and epidemiological welfare of the population.   

  Environmental requirements are restrictions and prohibitions of economic and other activities negatively affecting the environment and public health contained in the Environmental Code, other regulatory legal acts and regulatory and technical documents of the Republic of Kazakhstan.     

 The objective side of the crime is formed by violations of environmental requirements during the production, transportation, storage, burial, use or other handling of environmentally potentially dangerous chemical, radioactive and biological substances, if these acts have created a threat of causing significant harm to human health or the environment.    

 The production of potentially dangerous chemical, radioactive and biological substances should be understood as such exploitation of industrial and other enterprises, during which the objects specified in the disposition of art. 278 of the Criminal Code appear (are formed).    

 Transportation involves the movement of the substances specified in art. 278, regardless of the method of their transportation and storage (by pipeline, railway, automobile, horse-drawn, water, air transport).      Storage should be understood as any actions related to the retention of environmentally hazardous substances in the possession of a person (with himself, in a production facility, storage, hiding place, and so on).    

  Burial consists of immersing substances and waste in water or soil and leaving them there.   

   The use involves the use of environmentally hazardous substances in violation of the rules that ensure their safety for people and the environment.   

   Other handling of these substances is their acquisition, transfer, write-off, disposal, destruction without the permission of the competent authorities and in violation of public order.   

  The act provided for in Part 1 of Article 278 of the Criminal Code of the Republic of Kazakhstan is considered completed from the moment of committing any of the alternative actions specified in the disposition of the article if they posed a threat by their nature, i.e. they contained a real possibility of causing significant harm to human health or the environment.   

  The threat of causing significant harm to human health or the environment should be understood as the existence of a real danger of harm to human health or the environment, or the occurrence of such a situation or circumstances that could lead to harmful consequences if they were not prevented in time by measures taken or other circumstances beyond the control of the perpetrator (paragraph 21 of the Regulatory The 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").    

  The threat of causing significant harm to human health is expressed in the real possibility of a life-threatening disease or associated with significant permanent disability or with a long-term health disorder of at least one person. The reason for such a threat may be, for example, exceeding the maximum permissible standards when using ionizing radiation sources.   

  The threat of significant damage to the environment is a real danger of negative changes in the state of the environment associated with human activity: pollution, depletion, damage, and destruction of ecological systems.    

  The assessment of violations of environmental requirements as posing a threat is a matter of fact established by law enforcement agencies based on all the circumstances of a particular case.   

  On the subjective side, the crime provided for in Part 1 of Article 278 of the Criminal Code of the Republic of Kazakhstan is characterized by guilt in the form of intent, or is aware that it violates environmental requirements in the production, transportation, storage, burial, use or other handling of environmentally potentially hazardous chemical, radioactive and biological substances. This means that ignorance of a particular regulatory act, which can be objectively established as the real unavailability of this act, or its absence, does not eliminate awareness of safety during cargo transportation. At the same time, an assessment of the possibility of realizing the public danger of an act should be based on real circumstances, in particular, take into account the actual and required qualifications of the person; subjective experience; the duration of the substance or group of substances in circulation, since the procedure for handling any group of substances that are manufactured or arise for a short period of time may be unclear. Before that, they were completely absent in nature and industry.  

  The volitional moment of intent consists in the conscious assumption of a threat or an indifferent attitude towards it.  

    If the attitude of the perpetrator to the committed socially dangerous act and the resulting consequences is characterized by direct intent, then his act should be qualified according to the totality of the commented article and the corresponding article providing for criminal liability for encroachment on personality and (or) property.  

In my opinion, the commission of this crime by negligence is not excluded in practice. However, due to the requirement contained in Part 4 of Article 19 of the Criminal Code, it does not allow recognizing this act as committed through negligence.  

   The subject of the crime in question may be any person who has reached the age of 16 and is responsible for carrying out operations with chemical, radioactive and biological substances.  

   If these acts are committed by a private individual, for example, who is illegally engaged in business, he may be held criminally liable for specific types of environmental crimes or for illegal handling of radioactive materials (art. 247), etc.    

 Officials charged with the official duty to monitor the activities of persons responsible for the production, transportation, storage, burial, use or other handling of environmentally potentially hazardous chemical, radioactive and biological substances who have withdrawn from this duty, in the event of the consequences specified in Parts 2, 3 of art. 278 of the Criminal Code must bear criminal liability under Article 316 of the Criminal Code of the Republic of Kazakhstan.    

 278 of the Criminal Code of the Republic of Kazakhstan establishes responsibility for the same acts that caused pollution, poisoning or contamination of the environment, harm to human health or mass death of the animal or plant world, as well as committed in an area with an environmental emergency.   

  Environmental pollution (see commentary to Article 277 of the Criminal Code).    

 Environmental poisoning is a deeper degree of pollution that has led not only to exceeding hygienic and environmental standards for the quality of the environment, but also to the death of environmental components (for example, animals, vegetation, and others).    

 Causing harm to human health can result in causing mild, moderate, or serious harm to health.       The mass destruction of the animal or plant world is the destruction of a large number of their diverse species.      An ecological emergency is an ecological situation that has arisen in a territory where, as a result of economic and other activities or natural processes, stable negative changes in the environment occur that threaten the health of the population, the state of natural ecological systems, and the genetic resources of plants and animals.    

 Part 3 of Article 278 of the Criminal Code provides for special qualifying features for the compounds contained in the first two parts. Criminal liability is increased if the acts have inadvertently caused mass illness of people or death of a person. Consequently, in relation to these consequences, the guilt of the subject can only be expressed in negligence. At the same time, the disease of a large number of people should be considered widespread.    

 The crimes provided for in parts 1 and 2 of art. 278 relate to crimes of minor gravity.   

  The crime provided for in Part 3 of Article 278 refers to crimes of moderate severity.

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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