Comment to article 385. Violation of hunting regulations The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the rules of hunting, if this action does not contain signs of a criminally punishable act, committed in the form of:
1) illegal restrictions on visits to hunting grounds;
2) the use of prohibited types, methods and terms of hunting;
3) failure to ensure the organization of protection, reproduction and use of wildlife on fixed hunting grounds and fisheries reservoirs, –
entails a fine for individuals in the amount of three, for officials, small business entities – in the amount of ten, for medium–sized businesses – in the amount of twenty, for large businesses - in the amount of fifty monthly calculation indices.
2. An action provided for in the first part of this article, committed three or more times within one year, after the imposition of an administrative penalty, if this action does not contain signs of a criminally punishable act, –
entails a fine for individuals in the amount of five, for officials, small businesses – in the amount of twenty, for medium–sized businesses – in the amount of forty, for large businesses - in the amount of one hundred monthly calculation indices, or deprivation of the right to conduct hunting.
Part 1. The object of the offense is the established procedure for hunting.
In paragraph 9) of Article 1 of the Law of the Republic of Kazakhstan dated July 9, 2004 No. 593 "On the protection, reproduction and use of wildlife", "hunting" is understood as "a type of economic activity for the sustainable use of wildlife in hunting grounds, conservation of wildlife habitat, their protection and reproduction."
According to paragraphs 1 to 3 of Article 39 of the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife", fishery reservoirs and (or) sites are reservoirs or parts thereof (rivers and channels equated to them, lakes, wetlands, reservoirs, ponds and other internal reservoirs, territorial waters), as well as sea waters that are used or can be used for fishing, breeding and rearing of fish resources and other aquatic animals or are important for the reproduction of their stocks.
Fishing in reservoirs that are part of specially protected natural territories with the status of a legal entity is regulated by the Law of the Republic of Kazakhstan "On Specially Protected Natural Territories".
Fishery reservoirs and (or) sites are divided into international, national and local ones according to their significance. Fisheries reservoirs and (or) sites of international importance include reservoirs located on the territory of the Republic of Kazakhstan and neighboring countries.
Fisheries reservoirs and (or) sites of national significance include fisheries reservoirs and (or) sites located on the territory of two or more regions.
Fisheries reservoirs and (or) sites of local importance include all other fisheries reservoirs and (or) sites included in the list approved by the regional executive body.
Paragraph 11 of the "Rules of Hunting management", approved by the Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated May 29, 2015 No. 18-2/501, stipulates that the protection of wildlife in fixed hunting farms is carried out by:
1) the establishment and observance of rules, norms and regulations for the protection, reproduction and use of wildlife;
2) the establishment of restrictions and prohibitions on the use of wildlife;
3) protection of valuable, rare and endangered species of animals;
4) prevention of violations of the established rules for the use of wildlife;
5) organization of habitat protection, breeding conditions, migration routes and places of concentration of animals;
6) securing territories and water areas for users of the animal world with the assignment to them of duties for the protection of objects of the animal world;
7) creation of specially protected natural territories;
8) artificial breeding of animal species;
9) providing assistance to animals in case of diseases, threat of death in natural disasters and due to other reasons;
10) organization of scientific research in the field of protection, reproduction and use of wildlife;
11) promotion of the ideas of protection and sustainable use of wildlife;
12) stimulating the activities of individuals and legal entities for the protection of wildlife;
13) educating citizens in the spirit of humane and careful treatment of wildlife.
According to paragraphs 13-16 of the "Rules of Hunting Management", the reproduction of wildlife in fixed hunting farms is carried out by a hunting organization and includes a set of measures aimed at increasing and maintaining optimal numbers and sustainable use of wildlife.
The reproduction of wildlife in fixed hunting farms is carried out in order to increase the productivity of hunting grounds and is achieved by:
1) fertilizing, creation of feeding complexes and feeding fields;
2) creation of artificial reservoirs and watering holes;
3) increasing the nesting area of hunting grounds by planting protective vines and installing artificial nesting sites;
4) regulation of the number of predatory animals;
5) organization of scientific research in the field of protection and reproduction of wildlife;
6) restrictions on the economic activity of a hunting organization in a certain territory and within certain time limits;
7) carrying out measures for the prevention of animal diseases;
8) breeding of animals in captivity and semi-free conditions;
9) introductions of wildlife objects;
10) regulation of sex and age composition.
The list of works on the reproduction of wildlife in fixed hunting farms is provided for in the on-farm hunting management.
Measures for the reproduction of wildlife in fixed hunting farms are carried out by hunting organizations at their own expense.
Thus, the objective side of the offense is expressed in actions (inaction) that violate the rules of hunting, if this action does not contain signs of a criminal offense committed in the form of:
1) illegal restrictions on visits to hunting grounds;
2) the use of prohibited types, methods and terms of hunting;
3) failure to ensure the organization of protection, reproduction and use of wildlife on fixed hunting grounds and fisheries reservoirs
The subjective side of the commented offense is characterized by the fact that the act can be committed both in the form of gross intent and negligence.
The general subject of the offense is individuals, officials, small business entities, medium-sized businesses, and large businesses.
The disposition of part 2 of Article 385 of the Administrative Code contains the same elements as provided for in part one of Article 385 of the Administrative Code (object, objective side, subjective side, subject) with the exception of an additional qualifying feature. This is the commission of actions provided for in the first part of Article 385 of the Administrative Code, three or more times within one year, after the imposition of an administrative penalty, if this action does not contain signs of a criminally punishable act.
A distinctive feature of the disposition of the second part of Article 385 of the Administrative Code is that in order to be brought to administrative responsibility under this part, it is necessary to commit an offense provided for in Part 1 of Article 385 of the Administrative Code three or more times. We believe that it would be correct to specify "repetition during the year" as a qualifying feature, since the current version of part 2 of Article 385 essentially allows the offender to commit the actions provided for in Part 1 of Article 385 of the Administrative Code twice during the year.
In accordance with Part 1 of Article 684 of the Administrative Code, judges of specialized district and equivalent administrative courts consider cases of administrative offenses provided for in Article 385 (Part two). Administrative Code, except for the cases provided for in the third part of Article 684 of the Administrative Code.
In accordance with Article 709 of the Administrative Code, cases of administrative offenses are considered and administrative penalties are imposed under Article 385 of the Administrative Code by the authorized body in the field of forestry, fishing and hunting.
In paragraph 9) of Part 1 of Article 804 of the Administrative Code, in cases of administrative offenses considered by the courts, protocols on administrative offenses may be drawn up by authorized officials of bodies in the field of forestry, fishing and hunting (Article 385 (part two) of the Administrative Code).
In accordance with paragraphs 2) of Part 3 of Article 804 of the Administrative Code in cases of administrative offenses, the consideration of which is attributed to the jurisdiction of the bodies specified in Articles 685-735 of the Administrative Code, protocols on offenses may be drawn up by authorized officials of these bodies.
In addition, officials of specialized organizations of authorized bodies in the field of forestry, fishing and hunting have the right to draw up protocols on administrative offenses (art. 385 (part one) of the Administrative Code).
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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