Comment to Article 281. Pollution, clogging and depletion of waters of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Pollution, clogging, depletion of surface or groundwater, glaciers, sources of drinking water supply, or other changes in their natural properties, if these acts have caused significant harm to wildlife, fish stocks, forestry or agriculture., —
are punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to two months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or correctional labor for up to one year, or arrest for up to three months.
2. The same acts that have caused harm to human health or mass death of the animal or plant world, as well as those committed in specially protected natural territories or in territories with an environmental emergency, —
are 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 the death of a person, —
are punishable by imprisonment for a term of up to five years.
The public danger of pollution, clogging and depletion of waters is determined by the importance of this component of the natural environment for human life. Water pollution can and does cause significant harm to water resources, wildlife, human health, and the economy of the State. As noted in The message of the President of the country N.A. Nazarbayev to the people of Kazakhstan "Kazakhstan-2030. Prosperity, security and improving the well-being of all Kazakhstanis", currently the poor environmental situation is the cause of 20% of deaths, and in some regions the situation is even worse. One third of the citizens of the Republic of Kazakhstan use substandard drinking water.
The object of the crime is environmental safety, ensured by the rational use and protection of the aquatic environment from pollution, clogging, depletion, and other spoilage, as well as the aquatic environment. Optional objects can be: ecological balance and viability of the animal and plant world, fish stocks, as well as forestry and agriculture as natural goods and public domain, human health. In a particularly qualified crime, a person's life is an additional object of encroachment.
Based on art . 4 of the Water Code of the Republic of Kazakhstan dated July 9, 2003. The water fund includes the totality of all water bodies within the territory of the Republic of Kazakhstan included or subject to inclusion in the state water cadastre. The water bodies of the Republic of Kazakhstan include concentrations of waters in the land surface topography and the interior of the earth, having boundaries, volume and water regime. They are: seas, rivers, channels equated to them, lakes, glaciers and other surface water bodies, parts of the subsoil containing groundwater (art. 5 of the Water Code). The water resources of the Republic of Kazakhstan are reserves of surface and groundwater concentrated in water bodies that are used or can be used (art. 6 of the Water Code).
Protection of water bodies is an activity aimed at the conservation, restoration and reproduction of water bodies, as well as the prevention of harmful effects of waters (paragraph 41 of Article 1 of the Water Code). Water bodies are divided into: surface water bodies; underground water bodies, sea waters of the Republic of Kazakhstan; transboundary waters.
Surface water bodies are divided into:
reservoirs – rivers and equivalent channels, lakes, reservoirs, ponds and other internal reservoirs, territorial waters;
glaciers, swamps.
Surface water bodies consist of surface waters (art. 12 of the Water Code).
Underground water bodies include:
1) aquifers, horizons and rock complexes;
2) the basin of underground rivers;
3) deposits and areas of groundwater;
4) natural groundwater outlet on land or underwater;
5) flooded areas.
The waters of the Caspian and Aral Seas within the state border of the Republic of Kazakhstan, unless otherwise provided by international treaties ratified by the Republic of Kazakhstan, include the waters of the Caspian and Aral Seas. The coastline of the sea waters of the Republic of Kazakhstan is established in accordance with the procedure determined by the Government of the Republic of Kazakhstan (art.14 of the Water Code).
Transboundary waters are surface and underground water bodies that mark and/or cross the state border.
The objective side of the crime is formed by: a) pollution; b) clogging; c) depletion of surface or groundwater, sources of drinking water supply; d) other changes in their natural properties.
According to Article 113 of the Water Code, the discharge or other entry into water bodies of objects or pollutants that worsen the quality condition and complicate the use of water bodies is recognized as pollution of water bodies. The protection of water bodies is carried out from all types of pollution (pollution through the earth's surface and air).
In order to protect water bodies from pollution, it is prohibited:
1) the use of pesticides and fertilizers in the catchment area of water bodies. Disinfection, disinfection and deratization measures in the catchment area and the zone of sanitary protection of water bodies are carried out in coordination with the authorized body in the field of sanitary and epidemiological welfare of the population.;
2) discharge and burial of radioactive and toxic substances into water bodies;
3) discharge of wastewater from industrial and food facilities into water bodies that do not have treatment facilities and do not provide effective treatment in accordance with regulations;
4) carrying out blasting operations on water bodies, which use nuclear and other types of technologies, accompanied by the release of radioactive and toxic substances;
5) the use of machinery and technology on water bodies and water management facilities that pose a threat to public health and the environment.
Clogging of water bodies should be understood as the ingress of solid industrial, household and other waste into them, as well as suspended particles, as a result of which the hydrological condition of the water body worsens and water use becomes more difficult (Part 1 of Article 11 of the Water Code).
Dumping into water bodies and burial of solid, industrial, household and other waste in them is prohibited (Part 2 of art. 114 of the Water Code).
It is not allowed to clog the catchment areas of water bodies, ice cover of water bodies, glaciers with solid, industrial, household and other waste, the flushing of which will lead to a deterioration in the quality of surface and underground water bodies (Part 3, art. 114 of the Water Code).
Depletion of water bodies is recognized as a decrease in the minimum allowable level of runoff of surface water reserves or a reduction in groundwater reserves (Part 1 of Article 110 of the Water Code).
In order to prevent depletion of water bodies, individuals and legal entities using water bodies are required to:
1) to prevent excess and irrevocable withdrawal of water from water bodies;
2) to prevent the plowing of land, the purchase and sanitary treatment of livestock, the construction of buildings and other types of economic activities leading to the depletion of water bodies on the territory of water protection zones and strips.;
3) to carry out water protection measures (Part 2 of Article 115 of the Water Code).
Water protection measures aimed at preventing water bodies from depletion, carried out by individuals and legal entities, are preliminarily coordinated with the authorized body in the field of use and protection of the water fund, the central executive body of the Republic of Kazakhstan in the field of environmental protection and the authorized body for the use and protection of the subsoil (Part 3 of Article 115 of the Water Code).
Another change in the natural properties of surface and underground water bodies and sources of drinking water supply is understood as a significant change in the original chemical, physical or biological composition. For example, a significant change in the thermal regime of water due to the activity of thermal power plants threatens the reproduction of many fish species and the like.
Committing any of these actions entails criminal liability under Part 1 of Article 281 of the Criminal Code of the Republic of Kazakhstan if they have caused significant harm to wildlife, fish stocks, forestry or agriculture.
Significant harm to wildlife should be understood as the occurrence of diseases and the death of aquatic and other animals. Significant harm is characterized, in addition, by the ecological value of a lost natural object, destroyed animals, and changes in their genetic stock.
Significant damage to the plant world means the death, mutation, disease, or damage (to the extent of cessation of growth) of a significant number of plant organisms, their territories of growth, for example, due to the drying up of woody and shrubby vegetation along the shores of a reservoir, or a change in the genetic stock of plants.
Significant harm to fish stocks is their destruction, as well as the destruction of spawning and feeding grounds, diseases and deaths of fish, including massive changes in their genetic stock. Significant damage to forestry can be expressed in the destruction of forests in any territory, in their diseases, including the drying up of forests, forced mass migration of wild animals and birds, etc.
Significant harm to agriculture is understood as a change in land degradation, their withdrawal from agricultural circulation, destruction, including flooding and flooding, or infection of agricultural crops or plantings, death or disease of farm animals, etc.
A mandatory feature of the objective side of the crime under consideration is the causal relationship between pollution, clogging and depletion of waters and harmful consequences.
The subjective side of the crime is expressed in the form of indirect intent, when a person is aware of the public danger of the act he is committing as violating the prohibition on pollution, clogging of water bodies or prohibitions on exceeding the volume or qualitative composition of substances and waste, materials, etc. discharged into the waters, allows the occurrence of these consequences or treats their occurrence indifferently.. Qualified trains according to Part 3 of art. 281 CC is characterized by a double form of guilt, since negligence is provided for in relation to the consequence in the form of death of a person.
The subject of the crime can be either an official or a private person who has reached the age of 16 and is polluting water bodies.
281 of the Criminal Code of the Republic of Kazakhstan establishes responsibility for water pollution that has caused harm to human health or mass death of wildlife, as well as committed in specially protected natural areas or territories with an environmental emergency.
Harm to health is understood as causing minor harm to health, regardless of whether it has caused disability, or severe or moderate harm to health. The mass death of animals is understood as the destruction of a large number (flocks, herds, etc.) of wild animals, birds, fish, and other aquatic animals in a state of natural freedom.
In accordance with paragraph 2 of Article 61 of the Law of the Republic of Kazakhstan "On Specially Protected Natural Territories" dated July 7, 2006, a specially protected area is land, water bodies and airspace above them, natural complexes and objects of the state nature reserve fund for which a special protection regime is established (Part 1 of Article 9 of the Environmental Code).
Protection of specially protected natural territories is a set of measures that can be carried out in a specially protected natural territory to identify and suppress violations of the legislation of the Republic of Kazakhstan in the field of specially protected natural territories, to prevent, detect and eliminate fires (paragraph 4 of Article 1 of the Law and Part 1 of Article 9 of the Environmental Code).
The State Nature Reserve Fund is a set of environmental objects taken under state protection that have special ecological, scientific, historical, cultural and recreational value as natural standards, unique items and relics, a genetic reserve, a subject of scientific research, education, education, tourism and recreation (paragraph 9 of art. 1 of the Law and Part 1 Article 8 of the Environmental Code).
Objects of the state nature reserve fund are geological, hydrogeological, hydrological, zoological, botanical and landscape objects and their complexes, individual species (populations) of animals and plants (including rare and endangered species of animals and plants listed in the Red Book of the Republic of Kazakhstan), having a particularly ecological, scientific, historical–cultural and recreational significance (clause 10 of Article 1 of the Law).
Specially protected natural territories, depending on the significance of the objects of the state nature reserve, belong to the category of republican or local significance.
Depending on the purposes of creation and the type of protection regime, the following types of specially protected natural territories of national significance are distinguished: state nature reserves;
State national nature parks;
State natural reserves;
State zoological parks;
State Botanical gardens;
state arboretum parks;
State natural monuments;
State nature reserves;
state protected areas (Article 14 of the Law of the Republic of Kazakhstan (On Specially Protected Natural Territories").
Depending on the objectives of the creation and the type of protection regime, the following types of specially protected natural areas of local importance are distinguished::
State regional nature parks;
State zoological parks;
State Botanical gardens;
state arboretum parks;
State natural monuments;
State nature reserves;
Legislative acts of the Republic of Kazakhstan may provide for other types of specially protected natural territories.
The assignment of specially protected natural territories to the category of national significance is carried out by the Government of the Republic of Kazakhstan on the recommendation of the authorized body, to the category of local significance – by regional (cities of republican significance, capitals) executive bodies in coordination with the authorized body.
The transfer of a specially protected natural territory with the status of a legal entity from one type to another, resulting in a decrease in its status, is carried out with partial or complete loss of its special value and uniqueness as a result of a natural and (or) man-made emergency.
According to Part 1 of Article 173 of the Environmental Code of the Republic of Kazakhstan dated January 9, 2007, an environmental emergency is an environmental 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 public health, the state of natural ecological systems, and the genetic resources of plants and animals.
In case of an environmental emergency in certain territories of the Republic of Kazakhstan, certain types of economic activity and environmental management may be prohibited or restricted, and operational measures are being taken to restore (reproduce) natural resources, improve the environment, and provide social protection to the population in accordance with the procedure provided for by law.
In order to study the territory in which an ecological emergency or ecological disaster is expected, a commission is created.
The materials of the survey of territories with the conclusion of the authorized state bodies in the field of health, science and scientific and technical activities and education are transferred to the authorized body in the field of environmental protection for state environmental expertise.
Based on the positive conclusions of the state environmental expertise of the authorized body in the field of environmental protection, as well as the conclusions of authorized state bodies in the field of health, science, scientific and technical activities and education, the territory is declared:
extremely ecological situation zone – by decree of the Government of the Republic of Kazakhstan;
An ecological disaster zone is defined by the Law of the Republic of Kazakhstan (Article 174 of the Environmental Code).
Part 3 of Article 281 of the Criminal Code of the Republic of Kazakhstan provides for liability for acts provided for in Parts 1 and 2 that negligently caused the death of a person. By virtue of the direct indication of the law, a person's attitude to death as a consequence of an act provided for in Parts 1 and 2 of art. 281 of the Criminal Code of the Republic of Kazakhstan can only be in the form of reckless guilt.
Acts that caused pollution of marine waters should be qualified under Article 283 of the Criminal Code of the Republic of Kazakhstan.
The crimes provided for in parts 1, 2 and 3 of art. 281 relate 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
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
