Comment to article 364. Violation of the rules of general water use The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the rules of general water use, committed in the form of:
1) bathing, taking water for drinking and household needs, watering livestock, riding small vessels and other floating vehicles in prohibited places;
2) restrictions by individuals and legal entities on public access to water bodies of general water use by establishing barriers, security posts, and prohibition signs, -
entails a warning for individuals and legal entities.
2. The actions provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
A fine of two is imposed on individuals, seven on small businesses or non-profit organizations, seventeen on medium-sized businesses, and forty-two monthly calculation indices on large businesses.
Part 1. The general object of the article being commented on is public relations arising in the field of environmental protection and the use of natural resources. The optional object of the offense is safety in reservoirs as the main type of public safety, namely the life, health and property of the population.
According to paragraph 41 of Article 1 of the Water Code of the Republic of Kazakhstan dated July 9, 2003 No. 481: "water use is the use of water resources in accordance with the procedure established by the legislation of the Republic of Kazakhstan to meet their own needs and (or) commercial interests of individuals and legal entities."
Conditions and rules of general water use are established by local representative bodies of regions (cities of republican significance, the capital) on the basis of Standard Rules of general water use approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated March 20, 2015 No. 19-1/252.
In order to protect the life and health of citizens, local representative bodies of regions (cities of republican significance, capitals), taking into account the specifics of regional conditions, may determine in the rules of general water use places where bathing, water intake for drinking and household needs, livestock watering, riding small vessels and other floating vehicles on water bodies located on the territory of the relevant region.
Safety in reservoirs is provided by civil protection authorities and is regulated by the Order of the Ministry of Internal Affairs of the Republic of Kazakhstan dated January 19, 2015 No. 34 "On Approval of Safety Rules in reservoirs.
The duration of the bathing season and the opening hours of recreation areas on reservoirs are set by local executive authorities in consultation with the owners of recreation areas on reservoirs. The place of commission of the offense is reservoirs - rivers and equivalent channels, lakes, reservoirs, ponds and other internal reservoirs, territorial waters.
The following measures are being taken to ensure safety in the reservoirs of the Republic of Kazakhstan:
Ministry of Internal Affairs of the Republic of Kazakhstan:
1) preventive work aimed at preventing emergencies in water bodies is organized and carried out jointly with local executive bodies.;
2) water rescue and diving and search operations are carried out in the reservoirs of the Republic of Kazakhstan;
3) preventive raids and patrols of recreation areas on the water are carried out.
Local executive bodies:
1) medical aid stations and public safety posts are being set up on urban beaches;
2) an inventory of reservoirs used for swimming and recreation is carried out and their assignment to specific owners.;
3) it is not allowed to open recreation areas in reservoirs without the presence of rescue posts staffed by rescuers and equipped with rescue equipment and equipment, first aid facilities with medical personnel on duty and equipped with the necessary tools and medicines, and areas for bathing children;
4) urban and urban children's beaches are being created and equipped for swimming and teaching swimming to children;
5) together with territorial divisions, volunteer rescuers are involved in places of mass recreation on the water.
The objective side of the first part of the commented article can be expressed in actions or omissions by:
1) bathing in prohibited places:
2) taking water for drinking and household needs, watering livestock in prohibited places;
3) riding on small vessels and other floating vehicles in prohibited places;
4) restrictions by individuals and legal entities on public access to water bodies of general water use through the establishment of barriers, security posts, and prohibition signs.
Article 65 of the Water Code of the Republic of Kazakhstan defines the procedure for general water use, which is:
1. General water use is carried out to meet the needs of the population without assigning water bodies to individual individuals or legal entities and without using structures or technical devices that affect the state of waters.
2. No special permit is required for general water use. It is prohibited for individuals and legal entities to restrict public access to public water bodies by installing barriers, security posts, and prohibition signs, except in cases provided for by this Code.
3. General water use may be restricted or prohibited for the purposes of environmental, technical, and sanitary-epidemiological safety of the population.
The subjective side of the offense is characterized by guilt, both in the form of intent and negligence.
The subjects of this offense may be individuals and all types of legal entities. The categories of business entities are defined by article 24 of the Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015.
Based on Article 1 of the Water Code of the Republic of Kazakhstan dated July 9, 2003 No. 481: "a water user is a natural or legal person who, in accordance with the procedure established by the legislation of the Republic of Kazakhstan, has been granted the right to use water resources to meet their own needs and (or) commercial interests."
The commission of an offence under part one entails only a warning, which entitles officials of the Department of Internal Affairs (police) authorized to initiate proceedings on an administrative offence not to draw up a protocol on an administrative offence if the person has admitted the fact of the offence (See Articles 803 and 807 of the Administrative Code).
Part 2 of the commented article provides for the qualifying features of the first part of the article, committed repeatedly within a year after the imposition of an administrative penalty. It should be noted that officials of the Department of Internal Affairs authorized to impose administrative penalties must take into account the repeated actions of the offender are recognized only as a qualifying feature, but not as a circumstance aggravating responsibility for the offense provided for in part 2 of Article 364 of the Administrative Code (part 2 of Article 57)
Administrative penalties may be imposed under this article.:
1) chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, city of republican significance, capital, their deputies (paragraph 1 of part 2 of Article 685);
2) employees of the internal affairs bodies (police) with special ranks (paragraph 4 of part 2 of Article 685).
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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