Commentary on Article 285. Violation of the Rules for Handling Radioactive Substances, Radioactive Waste, and Nuclear Materials of the Criminal Code of the Republic of Kazakhstan
1. Violation of the rules for the storage, use, accounting, disposal, and transportation of radioactive substances, radioactive waste, or nuclear materials, as well as other rules for handling them, if this could result in the death of a person or other grave consequences, —
shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to one year, or imprisonment for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to two years or without such deprivation.
2. The same act, which through negligence resulted in the death of a person or other grave consequences, —
shall be punishable by imprisonment for a term of up to seven years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without such deprivation.
The public danger of the crime lies in the fact that violations of the rules for handling radioactive substances, radioactive waste, and nuclear materials are capable of causing harm to individuals, society, and the State, given that radioactive materials pose a potential danger.
The object of this crime is public safety in the sphere of circulation of radioactive materials.
The additional objects are human life and health, property, and radiation and nuclear safety.
The subject matter of the crime is radioactive substances, radioactive waste, or nuclear materials (see the commentary on Article 283 of the Criminal Code).
The objective side of the crime is characterized by the commission of such unlawful acts as violations of the rules for the storage, use, accounting, disposal, and transportation of radioactive materials, as well as violations of other rules for handling radioactive materials, if this could result in the death of a person or other grave consequences.
The basic rules for handling radioactive substances, radioactive waste, and nuclear materials are set out in the Law of the Republic of Kazakhstan “On the Use of Atomic Energy,” as well as in the internal departmental regulations of those bodies which are intended to ensure state regulation of the safe use of atomic energy, supervision, control, and licensing of activities involving the use of atomic energy and having a radiation impact on personnel and the population.
A violation of the rules for handling radioactive substances, radioactive waste, and nuclear materials is understood as a set of manual and (or) automated operations and actions involving nuclear energy use facilities during their manufacture, supply, use, operation, commissioning and decommissioning, processing, installation, repair, maintenance, charging, recharging, dismantling, disposal, preservation, transportation, import, export, decontamination, post-disposal processing, storage, and burial (subparagraph 5) of Article 1 of the Law).
Storage is understood as the temporary placement at storage facilities of nuclear fuel, nuclear materials, radioactive substances, radionuclide sources, spent nuclear fuel, and radioactive waste, providing for the possibility of their retrieval for further handling (subparagraph 27) of Article 1 of the Law).
A storage facility is a nuclear or radiation installation intended for the storage of nuclear fuel, nuclear materials, radioactive substances, radionuclide sources, spent nuclear fuel, and radioactive waste (subparagraph 28) of Article 1 of the Law).
The use of radioactive materials means obtaining their beneficial properties and applying them as a source of ionizing radiation.
Accounting should be understood as the maintenance of reporting documents concerning the handling of radioactive materials.
Burial means the placement of spent nuclear fuel or radioactive waste in a disposal facility without the intention of retrieving it (subparagraph 12) of Article 1 of the Law).
A disposal facility is a nuclear and radiation installation intended for the disposal of spent nuclear fuel or radioactive waste (subparagraph 13) of Article 1 of the Law).
Transportation of radioactive materials should be understood as the transportation of such materials by any means (land, air, water transport, etc.).
Violations of other rules for handling radioactive materials include violations of general safety regulations, the absence of a licence, and violations of the rules governing the export of goods and services related to radioactive materials.
By its structure, the corpus delicti is formal. A violation of the rules for handling radioactive substances, radioactive waste, and nuclear materials shall be considered completed from the moment a threat of causing the death of a person or other grave consequences arises.
The threat of grave consequences occurring is the formation of a situation in which there is a possibility of a criminal result occurring, which is a consequence of a violation of the rules for handling radioactive substances, radioactive waste, and nuclear materials.
The subjective side of this crime is characterized by negligent and intentional forms of guilt. Violation of the mandatory rules for handling radioactive substances, radioactive waste, and nuclear materials may be conscious (intentional) or unconscious. In the event of a conscious violation of the aforementioned rules, increased criminal liability should arise. The perpetrator's attitude towards the consequences is expressed in negligence.
The subject of the crime is a sane natural person who has reached the age of 16.
Part 2 of the Article under consideration provides for liability for the same act which, through negligence, resulted in the death of a person or other grave consequences (see the commentary on Part 3 of Article 283 of the Criminal Code).
The act provided for in Part 1 of Article 285 of the Criminal Code belongs to the category of minor crimes.
The act provided for in Part 2 of Article 285 of the Criminal Code belongs to the category of serious crimes.
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 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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