Comment to Article 288. Illegal hunting of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Illegal hunting, if this act is committed:
a) causing significant damage;
b) using a mechanical vehicle or aircraft, explosives, gases and other methods of mass destruction of birds and animals;
c) in relation to birds and animals, hunting of which is completely prohibited;
d) in specially protected natural territories and in territories with an ecological emergency, —
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 correctional labor for up to two years, or arrest for a period of four to six months with confiscation of property that is the object of criminal acts, an instrument or means of committing a crime, an item withdrawn from circulation, or without one.
2. The same act committed repeatedly by a person using his official position or by a group of persons by prior agreement or by an organized group, —
is punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to seven months, or by imprisonment for up to two years with deprivation of the right to hold certain positions or engage in certain activities for up to three years with confiscation of property that is the object of criminal acts, or a means of committing a crime, an object withdrawn from circulation, or without it.
3. The act provided for in the first or second parts of this Article committed with the infliction of major damage or by an organized group, -
are punishable by imprisonment for a term of two to five years with confiscation of the convicted person's property, as well as property that is the object of criminal acts, an instrument or means of committing a crime, an object withdrawn from circulation.
Note. Significant damage in the articles of this chapter is recognized as the amount of damage one hundred times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime. Major damage is considered to be damage three hundred times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.
The public danger of illegal hunting is to undermine the environmental safety of the Republic of Kazakhstan, causing damage to wildlife.
The object of the crime under consideration is environmental safety, ensured by the protection of wildlife, its rational use, reproduction and ensuring the necessary number of wild animals.
The objects of illegal hunting are birds and animals that are in a state of natural freedom.
Taking possession of pets, as well as wild animals or birds in kennels or aviaries, is subject to qualification as theft of other people's property. The objective side of the crime is expressed in illegal hunting, if the signs specified in Article 288 of the Criminal Code are present.
In accordance with Part 1 of Article 32 of the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife" dated July 9, 2004, hunting is a type of special use of wildlife, in which species of animals that are the object of hunting are removed from their habitat.The search, tracking and harassment for the purpose of obtaining, the attempt to obtain objects of the animal world, the presence in hunting grounds of persons with uncovered hunting weapons and other hunting tools or hunting products, with hunting dogs released from the leash, and hunting birds are equated to hunting.
Hunting is divided into the following types:
- commercial hunting – the extraction of species of animals that are the object of hunting for the purposes of entrepreneurial activity; - amateur (sports) hunting is the extraction of species of animals that are the object of hunting in order to satisfy athletic aesthetic needs and for personal consumption of the obtained products. Illegal hunting should be considered tracking for the purpose of hunting, stalking and hunting wild birds and animals without appropriate permission or contrary to a special ban, or by a person who does not have the right to hunt or illegally obtained a hunting license, or hunting outside designated areas, within prohibited time limits, with prohibited tools and methods (paragraph 10 of 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").
The presence of persons in hunting grounds with intent to illegally hunt in the presence of these circumstances with firearms, hunting birds, hunting dogs, traps and other hunting tools should be recognized as illegal hunting, regardless of whether the objects of hunting products were actually obtained.
Hunting without a proper permit is the tracking, stalking, and hunting of wild animals and birds without a hunter's certificate, with an expired certificate or issued to another person, and shooting without obtaining permission to use wildlife (for more information, see Part 5, Article 38 of the Law of the Republic of Kazakhstan "On the Protection, Reproduction, and Use of Wildlife").
Prohibited hunting methods include driving animals through snow, deep snow, driving on smooth ice, burning vegetation in places where animals are concentrated, hunting animals from under headlights or using other lighting devices, etc.
Hunting within prohibited time limits is the shooting and trapping of wild animals (birds) within deadlines not specified by regulatory enactments. Hunting in prohibited places is the shooting and trapping of wild animals (birds) in nature reserves and localities where hunting is prohibited by regulatory legal acts.
Prohibited hunting tools include small-caliber rifles (with the exception of those for commercial hunting), pesticides for the extraction of wild animals (with the exception of wolves, ground squirrels, hamsters), nets, fans, loops, tents, etc.
According to Article 38 of the above–mentioned law of the Republic of Kazakhstan, "hunting grounds are territories and water areas that are the habitat of animal species representing the object of hunting, where hunting and hunting management are carried out and can be carried out. The assignment of the territory and water area to hunting grounds, the determination of their boundaries and the establishment of appropriate easements are carried out on the basis of the results of inter–farm hunting management and biological and economic survey in accordance with the procedure established by the legislation of the Republic of Kazakhstan."
Individuals have the right to hunt subject to the conditions stipulated in Article 33 of the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife" dated July 9, 204.
Illegal hunting is recognized as a crime only if there is one of the following signs specified in the law:
a) causing significant damage (damage one hundred or more times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime); b) hunting using a mechanical vehicle or aircraft, explosives, gases and other methods of mass destruction of birds and animals, which may lead to the death of a large number of birds and animals. In addition, as a result of such hunting, especially when using explosive substances and gases, a significant number of mutilated birds and animals appear. Mechanical vehicles are cars of various brands and purposes, motorcycles, boats, motorboats. An aircraft is a type of vehicle capable of moving in any way in the atmospheric layers, used to move someone (something). The use of a mechanical vehicle or aircraft in illegal hunting should be understood as the use of such means as a weapon of crime directly during the hunting process (stalking, tracking animals, shooting in the headlights, etc.).
If the specified means were used to transport poachers to the hunting site or to transport illegally obtained items, the crime cannot be considered as committed using mechanical vehicles or an aircraft. If the guilty person unlawfully used someone else's vehicle for illegal hunting, then his actions should be qualified according to the totality of crimes of Articles 288 and 185 of the Criminal Code of the Republic of Kazakhstan.
An explosive substance is a chemical compound or mixture capable, under the influence of an external impulse (shock, heat, etc.), of a chemical reaction self–propagating at high speed (km/s) with the formation of gaseous products and the release of heat (Soviet Encyclopedic Dictionary, Moscow, 1989, p. 218).
A gas is an aggregate state of matter in which the kinetic energy of the thermal motion of its particles (molecules, atoms, ions) significantly exceeds the potential energy of interactions between them, and therefore the particles move freely, evenly filling the entire volume provided to them in the absence of external fields (ibid., p. 267).
Explosives or gases are considered to have been used from the moment they are actually used in the process of illegal hunting. Other methods of mass destruction of birds and animals include: setting nets, bagging, hunting from the air, the use of automatic firearms, light and sound devices, the use of which leads to the death of a significant number of wild animals and birds.
Explosives or gases are considered to have been used from the moment they are actually used in the process of illegal hunting. Other methods of mass destruction of birds and animals include: setting nets, bagging, hunting from the air, the use of automatic firearms, light and sound devices, the use of which leads to the death of a significant number of wild animals and birds.
c) hunting in relation to birds and animals, hunting of which is completely prohibited. The list of birds and animals, hunting of which is completely prohibited, is contained in the Standard Hunting Rules approved by the General Directorate for the Protection of Wildlife on February 13, 1991. These rare or endangered birds and animals are included in the Red Book of the Republic of Kazakhstan (currently 129 species and subspecies of vertebrates are included in the Red Book of the Republic of Kazakhstan: mammals — 42 species; birds — 58 species; reptiles — 10 species; amphibians — 3 species; fish — 16 species and invertebrates — 106 species );
d) hunting in specially protected natural areas and in areas with an environmental emergency (see commentary to Articles 281 and 287 of the Criminal Code).
Illegal hunting provided for in paragraph "a" of Part 1 of Article 288 of the Criminal Code is recognized as a completed crime from the moment significant damage is caused. In all other cases (paragraphs "b", "c", "d") — from the moment the tracking of birds and animals begins, regardless of whether they have been shot or captured. This follows from the normative definition of the concept of "hunting".
On the subjective side, the crime in question is committed with direct intent. The motives and purpose of the commission of this crime do not affect the qualification, but must be taken into account in the individual punishment. In most cases, this is a selfish motive.
The subject of a crime can be any person who has reached the age of 16.
In part 2 of the commented article, qualifying signs of illegal hunting are provided: the same act committed repeatedly; by a person using his official position or by a group of persons by prior agreement or an organized group.
The concept of repetition – see the commentary to art. 11 of the Criminal Code.
A person using his official position – see the commentary to art. 287 of the Criminal Code.
Abuse of official authority or the authority of a person performing managerial functions in a commercial or other organization in illegal hunting does not require additional qualifications under Articles 307 or 228 of the Criminal Code. The application of Part 2 of Article 288 of the Criminal Code of the Republic of Kazakhstan is sufficient here.
Preliminary collusion of a group of persons can be found in the commentary to Article 31 of the Criminal Code of the Republic of Kazakhstan.
Part 3 of the commented article provides for the following signs: acts provided for in the first or second parts of this article, committed with the infliction of major damage (see commentary to art. 287 CC) or by an organized group (see commentary to art. 31 CC).
If illegal hunting was carried out using illegally acquired, manufactured or stored firearms (except smoothbore hunting), ammunition or explosives, the actions of the perpetrator are subject to qualification under Articles 288 and 251 of the Criminal Code, which provide for liability for the illegal acquisition, storage, carrying firearms, ammunition.
The crimes provided for in Parts 1, 2 of art. 288 relate to crimes of minor gravity.
The crime provided for in Part 3 of Article 288 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 adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus
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