Commentary on Article 276. Violation of Safety Rules at Nuclear Energy Facilities of the Criminal Code of the Republic of Kazakhstan
1. Violation of safety rules during the siting, design, construction, commissioning, operation, repair, and decommissioning of nuclear energy facilities, as well as during the handling of nuclear materials, radioactive substances, radioactive waste, or sources of ionizing radiation, if such act negligently results in the infliction of moderate bodily harm upon a person, —
shall be punishable by a fine in an amount of up to one hundred and twenty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and twenty hours, or arrest for a period of up to thirty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years.
2. The same act, if it negligently results in the infliction of grievous bodily harm upon a person, —
shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
3. The same act, if it negligently results in the death of a person, radioactive contamination of the environment, or other grave consequences, —
shall be punishable by imprisonment for a period of five to ten years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
The public danger of the criminal offence under consideration lies in the fact that violation of safety rules at nuclear energy facilities causes harm to public safety and creates a risk of radioactive contamination of the natural environment and the death of people.
The object of the criminal offence (Part 1 — a criminal misdemeanour, Parts 2 and 3 — crimes) is public safety in work involving nuclear energy facilities. Additional objects are life, health, and environmental safety.
In accordance with subparagraph 6) of Article 4 of the Law of the Republic of Kazakhstan dated 6 January 2012 “On National Security of the Republic of Kazakhstan”, environmental safety, as a type of national security, is the state of protection of the vital interests and rights of individuals and citizens, society, and the State against threats arising as a result of anthropogenic and natural impacts on the environment.
The subject matter of the criminal offence is nuclear energy facilities, nuclear materials, radioactive substances, radioactive waste, and sources of ionizing radiation.
Nuclear energy is a branch of the energy industry that uses atomic (nuclear) energy for peaceful and defence purposes. The basis of nuclear energy consists of nuclear power plants (NPPs). The source of energy at an NPP is an atomic reactor in which a controlled chain reaction takes place.
In accordance with subparagraph 3) of Article 1 of the Law of the Republic of Kazakhstan dated 12 January 2016 “On the Use of Atomic Energy”, nuclear energy facilities include: sources of ionizing radiation, radioactive waste and spent nuclear fuel, nuclear, radiation, and electrophysical installations, storage and disposal facilities, transport packaging sets, and nuclear materials.
In accordance with Article 1 of the aforementioned Law, nuclear materials are materials containing or capable of reproducing fissile (fissionable) radionuclides (paragraph 34); radioactive substances are any materials of natural or man-made origin, in any aggregate state, containing radionuclides (paragraph 24); radioactive waste is radioactive substances, nuclear materials, or radionuclide sources with radionuclide content above the clearance level, whose further use is not envisaged (paragraph 25).
The objective side of the criminal offence is characterised by an act or omission expressed in the violation of safety rules during the siting, design, construction, commissioning, operation, repair, and decommissioning of nuclear energy facilities, as well as during the handling of nuclear materials, radioactive substances, radioactive waste, or sources of ionizing radiation, if such act negligently results in the infliction of moderate bodily harm upon a person.
Safety rules are instructions, restrictions, prohibitions, and other mandatory requirements contained in regulatory legal acts and regulatory technical documents, compliance with which ensures the safe operation of the specified nuclear energy facilities.
Activities related to the use of atomic energy are subject to mandatory licensing in accordance with the procedure established by the legislation of the Republic of Kazakhstan on permits and notifications.
Nuclear and radiation safety is ensured by the operating organisation in accordance with the established standards and rules in the field of safety of activities related to the use of atomic energy, including the handling or performance of any actions or operations involving nuclear installations, nuclear materials, radioactive waste, storage facilities for radioactive waste and (or) spent nuclear fuel, radioactive substances above the clearance level, instruments and installations containing radioactive substances above the clearance level or generating (capable of generating) ionizing radiation.
Siting is an activity involving the determination of the spatial location and structural organisation of a planned nuclear energy facility (for example, obtaining an allocation of a land plot, coordination of territories for sanitary protection zones, etc.). The placement of radioactive waste must be envisaged in design and technical documentation as a mandatory stage of any type of activity leading to the generation of radioactive waste.
Design is the preparation of drawings, diagrams, models, and design and estimate documentation for nuclear energy facilities. During the design process, provision is made for the strength of all structural elements capable of withstanding abnormal situations and for the rapid containment of areas of possible radioactive contamination.
A project is an intention of individuals, legal entities, or the State to ensure the necessary conditions for human habitation and life activities, presented in the form of architectural, urban planning, and construction documentation (drawings, graphic and textual materials, engineering and estimate calculations).
Construction is the erection, reconstruction, re-equipment, and other creation of new nuclear energy facilities, or the repair of existing facilities. It is carried out in accordance with approved projects that have received a positive expert assessment and in compliance with the applicable construction, sanitary, environmental protection, and other standards and rules.
Commissioning is the putting into operation (launching into the technological cycle) and commencement of operation of nuclear energy facilities. Thus, the commissioning of these facilities that are not equipped with modern technologies and equipment and do not meet safety requirements is prohibited.
Operation means the functioning of a nuclear energy facility in a specified technological mode.
Repair is a set of technical measures aimed at maintaining or restoring the original operational characteristics of a nuclear energy facility.
Decommissioning is the final stage in the existence of a nuclear energy facility, which begins after the completion of energy production and is обусловed by the expiration of the designated service life or a decision to terminate operation ahead of schedule. Preparation for decommissioning is a set of organisational and technical measures necessary for planning future decommissioning, including comprehensive engineering and radiation inspections of power units, the creation of an information support system for decommissioning, and the establishment of infrastructure for transferring radioactive waste for long-term storage or disposal.
The handling of nuclear materials, radioactive substances, radioactive waste, or sources of ionizing radiation is administrative and operational activity associated with the manufacture, supply, receipt, possession, storage, use, transfer, transportation, maintenance, processing, and disposal of radioactive materials.
By its legal structure, the corpus delicti of the criminal offence is material. The criminal offence is considered completed from the moment the consequences specified in the disposition occur: the infliction of moderate bodily harm upon a person (Part 1), grievous bodily harm (Part 2), or the death of a person, radioactive contamination of the environment, or other grave consequences (Part 3).
The subjective side of the criminal offence is characterised by an unintentional form of guilt in the form of recklessness or negligence. In this case, the person foresaw the possibility of socially dangerous consequences arising from their actions (omissions), but, without sufficient grounds, carelessly expected to prevent them. A person may fail to foresee the possibility of socially dangerous consequences of the act, although, with due attention and foresight, they should and could have foreseen these consequences.
The subject of the criminal offence may be both officials and other employees whose duties include compliance with safety rules at nuclear energy facilities.
Part 2 of Article 276 of the Criminal Code establishes liability for the act provided for in Part 1, which negligently results in the infliction of grievous bodily harm upon a person.
Subparagraph 11) of Article 3 of the Criminal Code defines grievous bodily harm as harm to a person's health that is dangerous to their life, or other harm to health that has resulted in: loss of sight, speech, hearing, or any organ; loss by an organ of its functions; permanent disfigurement of the face; a health disorder associated with a significant permanent loss of general working capacity of at least one third; complete loss of professional working capacity; termination of pregnancy; mental disorder; or a disease involving drug addiction or substance abuse.
Part 3 of Article 276 of the Criminal Code provides for liability for an especially aggravated form of this crime, characterised by the negligent death of a person, radioactive contamination of the environment, or other grave consequences.
The negligent causing of a person's death is expressed in the deprivation of the victim's life in the course of the perpetrator's professional activity as a result of violation of safety rules during the siting, design, construction, commissioning, operation, repair, and decommissioning of nuclear energy facilities, as well as during the handling of nuclear materials, radioactive substances, radioactive waste, or sources of ionizing radiation.
Radioactive contamination of the environment is the contamination of an area and the objects located thereon with radioactive substances as a result of their fallout following ground (underground) and low-altitude atmospheric nuclear explosions. The harmful effects of ionizing radiation are assessed by the radiation dose received (radiation dose), that is, the energy of these rays absorbed per unit volume of the irradiated medium. This energy is measured in roentgens using existing dosimetric instruments.
Other grave consequences include mass illness, contamination, irradiation, or poisoning of people; deterioration of the health of the population and the state of the environment; the occurrence of a man-made or environmental disaster or an environmental emergency; the infliction of major or especially major damage; and other consequences indicating the severity of the harm caused.
The act provided for in Part 1 of Article 276 of the Criminal Code is classified as a criminal misdemeanour.
The act provided for in Part 2 of Article 276 of the Criminal Code is classified as a crime of minor gravity.
The act provided for in Part 3 of Article 276 of the Criminal Code is classified as a crime of medium gravity.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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