Commentary on Article 324. Violation of Environmental Requirements for Economic or Other Activities of the Criminal Code of the Republic of Kazakhstan
1. Violation of environmental requirements in the use of natural resources, design, siting, construction or reconstruction, commissioning or operation of enterprises, structures or other facilities, operation of industrial, energy, transport or communications facilities, agricultural and land reclamation facilities, construction of cities or other settlements, military or defence facilities, military or space activities, if such act has resulted or could have resulted in major damage to the environment, or has caused harm to human health, —
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 two years, or without such deprivation.
2. An act provided for in paragraph 1 of this Article that has resulted in particularly large-scale damage to the environment, the death of a person, or mass illness among people, —
shall be punishable by imprisonment for a period of three to seven 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.
In accordance with paragraph 1 of Article 31 of the Constitution of the Republic of Kazakhstan, the State sets as its objective the protection of the environment favourable to human life and health.
In accordance with paragraph 2 of Article 7 of the Environmental Code of the Republic of Kazakhstan dated 2 January 2021, the environment is considered favourable for human life and health if its quality ensures environmental safety and the natural balance of the natural environment, including the sustainable functioning of ecological systems, natural and natural-anthropogenic objects and natural complexes, as well as the preservation of biodiversity.
The environment is the totality of conditions, substances and objects of the material world surrounding humans, including the natural environment and the anthropogenic environment (paragraph 1 of Article 6 of the Environmental Code of the Republic of Kazakhstan).
Environmental damage means damage caused to the components of the natural environment specified in Articles 133, 134 and 135 of the Environmental Code, where there is no possibility of their natural restoration to their baseline condition within a reasonable period without taking remediation measures (paragraph 1 of Article 131 of the Environmental Code).
Environmental protection is a system of measures undertaken by the State, individuals and legal entities aimed at preserving and restoring the natural environment, preventing environmental pollution and damage thereto in any form, minimising negative anthropogenic impacts on the environment and eliminating their consequences, as well as ensuring other environmental foundations for the sustainable development of the Republic of Kazakhstan (Article 8 of the Environmental Code).
Environmental pollution means the presence in atmospheric air, surface and groundwater, soil or on the earth's surface of pollutants, heat, noise, vibrations, electromagnetic fields or radiation in quantities (concentrations, levels) exceeding the environmental quality standards established by the State (paragraph 1 of Article 11 of the Environmental Code of the Republic of Kazakhstan).
According to Article 38 of the Constitution, citizens of the Republic of Kazakhstan are obliged to preserve nature and treat natural resources with care. In order to ensure the technological discipline necessary for environmental protection during the performance of work involving the design, siting, construction, reconstruction, commissioning and operation of enterprises, structures and other facilities, environmental requirements must be observed.
The public danger of the crime under consideration lies primarily in the fact that, by violating the provisions of the Constitution of the Republic of Kazakhstan, it causes harm to human life and health and results in mass illness among people (up to and including genetic changes). In addition, damage is also caused to natural objects themselves (flora and fauna, the condition of atmospheric air, water, soil, etc.).
The object of the crime is 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 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.
Paragraph 3 of Article 4 of the Environmental Code also defines environmental safety as an integral part of national security, meaning the state of protection of the rights and vital interests of individuals, society and the State against threats arising as a result of anthropogenic and natural impacts on the environment.
As a result of the commission of the act provided for in Article 324 of the Criminal Code, any of the three direct objects may suffer: a) the stability of the environment; b) natural resource potential; c) the constitutionally guaranteed right of every citizen to a favourable environment.
The objective element of the analysed corpus delicti includes the violation of environmental requirements in the use of natural resources, design, siting, construction or reconstruction, commissioning or operation of enterprises, structures or other facilities, operation of industrial, energy, transport or communications facilities, agricultural and land reclamation facilities, construction of cities or other settlements, military or defence facilities, military or space activities, if such act has resulted or could have resulted in major damage to the environment or has caused harm to human health, as well as the causal relationship between the violation of environmental requirements and the consequences that have occurred.
Environmental requirements are restrictions and prohibitions on economic or other activities that adversely affect the environment and public health, contained in the Environmental Code of the Republic of Kazakhstan and other regulatory legal acts and regulatory technical documents of the Republic of Kazakhstan.
Violation of environmental requirements in the use of natural resources may consist in committing actions expressly prohibited by the Environmental Code of the Republic of Kazakhstan at any stage of the use of natural resources. Such actions include, for example, failure to comply with standards for permissible anthropogenic pressure on the environment; absence in a project of measures to prevent and eliminate environmental pollution; failure to comply with requirements for the restoration of the natural environment; construction and reconstruction of buildings, structures and other facilities without approved designs or in accordance with designs that have received a negative conclusion from the state environmental expert review; amendments to approved designs to the detriment of environmental protection requirements, etc.
Violation of environmental requirements (environmental protection rules) in the use of natural resources, design, siting, construction or reconstruction, commissioning or operation of enterprises, structures or other facilities, operation of industrial, energy, transport or communications facilities, agricultural and land reclamation facilities, construction of cities or other settlements, military or defence facilities, military or space activities may be committed both by action and by omission, since a person may violate the relevant environmental requirements by failing to fulfil them (improperly fulfilling them), failing to observe them or improperly performing them.
Active criminal conduct may occur on the part of persons responsible for designing, siting, constructing, commissioning and operating the relevant facilities where the perpetrators improperly perform environmental safety rules.
Passive criminal conduct is characteristic of environmental criminal offences committed by persons who fail to comply with their official duties relating to the implementation of environmental safety rules or ensuring compliance with them, taking into account the individual volitional and intellectual characteristics of the guilty persons (for example, failure to comply with environmental safety rules by a person who is obliged to do so by virtue of a regulatory legal requirement, or failure to take measures to repair, monitor and ensure the proper operation of wastewater treatment facilities and installations by the person responsible for this).
Environmental requirements applicable to the use of natural resources, namely land, subsoil, water, forests and other vegetation, and wildlife, are determined by the relevant codes, laws and other regulatory legal acts of the Republic of Kazakhstan.
Environmental requirements are understood as rules, requirements, restrictions and prohibitions established by the environmental legislation of the Republic of Kazakhstan and aimed at ensuring environmental protection.
Article 31 of the Environmental Code of the Republic of Kazakhstan stipulates that state regulation of environmental relations is carried out through the establishment by the State of environmental requirements that are mandatory for compliance by the subjects of relations regulated by the Environmental Code, and through the application of instruments of state regulation in the field of environmental protection in accordance with this Code.
Design includes activities involving the development of design documentation and a feasibility study for a facility being created, reconstructed or undergoing major repairs.
The siting of a facility implies activities involving its spatial location on the terrain. It must comply with state urban planning standards and regulations, territorial zoning requirements and requirements for ensuring favourable living conditions for the population.
The determination of locations for enterprises, structures and other facilities shall be carried out in compliance with environmental protection conditions and rules, taking into account the environmental consequences of the activities of such facilities. When enterprises, structures and other facilities are sited, protective, sanitary protection and other protective zones shall be established (Article 201 of the Environmental Code).
Construction is a branch of material production in which fixed assets for production and non-production purposes are created: buildings, structures and their complexes ready for operation.
Reconstruction is the fundamental reorganisation or re-equipment of something, a change in the principles of organising something, or the recreation and restoration of something based on surviving remains or descriptions.
The design, construction and reconstruction of cities and other settlements must ensure the most favourable conditions for the life, work and recreation of the population, taking into account environmental, sanitary and epidemiological requirements and environmental safety (paragraph 1 of Article 200 of the Environmental Code).
The construction and reconstruction of enterprises, structures and other facilities shall be carried out in the presence of positive conclusions from the state environmental expert review and the sanitary and epidemiological expert review (in the case of construction and reconstruction of facilities of high epidemiological significance), in accordance with environmental quality standards.
Newly constructed facilities may be commissioned only on the condition that all environmental requirements have been fully complied with. The chairperson and members of acceptance commissions shall bear personal responsibility for violations committed during the acceptance of facilities. Legal entities and other participants in economic activities are obliged to comply with environmental requirements during the operation of enterprises and other facilities.
The commissioning of enterprises, structures and other facilities shall take place on the condition that all environmental requirements stipulated by the project have been fully fulfilled, on the basis of an act issued by an acceptance commission established with the participation of the authorised body in the field of environmental protection.
The operation of a facility consists in its use in accordance with its intended purpose. The operation of enterprises, structures and other facilities without installations and equipment for the treatment, neutralisation and disposal of hazardous waste, emissions and discharges, ensuring compliance with environmental quality standards, as well as without completion of the work on land reclamation, reproduction and rational use of natural resources provided for by the project, is prohibited.
The operation of industrial, energy, transport and communications facilities, agricultural and land reclamation facilities must be carried out taking into account the established environmental requirements and using environmentally justified technologies, necessary treatment facilities and sanitary protection zones that prevent environmental pollution. During the operation of the specified facilities, low-waste and waste-free technologies ensuring environmental safety must be introduced.
Individuals and legal entities operating motor vehicles and other means of transport that have a negative impact on the environment are obliged to comply with permissible emission standards and take measures to reduce noise levels and other negative impacts on the environment.
The disposition of the provision under comment is blanket in nature; therefore, when qualifying an act under Article 324 of the Criminal Code, the indictment and the court judgment must specify exactly which environmental requirements were violated and by which regulatory act they were established. In certain cases, it is necessary to conduct an expert examination or obtain a specialist's consultation.
Paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 18 June 2004, “On the Application by Courts of Legislation on Liability for Certain Environmental Criminal Offences”, states: “In order to ensure the proper application of the law when considering cases involving environmental criminal offences, courts must, in each specific case, determine which environmental requirements and (or) rules were to be observed in the course of economic and other activities, the production, storage and use of environmentally hazardous substances, and the commission of other actions (water fishing, hunting, felling of trees and shrubs, etc.), as well as which regulatory legal acts establish these requirements and rules, bearing in mind that the provisions of criminal law establishing liability for environmental criminal offences are blanket provisions”.
By its legal construction, the corpus delicti of this crime is material-formal, that is, it is recognised as a material offence when major damage is caused to the environment or harm is caused to human health and, accordingly, it is recognised as a formal offence and considered completed in cases where harmful consequences have not occurred as a result of the violation of environmental requirements, but could have resulted in major damage to the environment. For example, when using natural resources in the design of a particular facility or during the construction of such a facility, socially dangerous consequences in the form of major damage to the environment may not occur immediately; however, environmental harm may arise after a short period of time following the commission of the crime.
According to subparagraph 38) of Article 3 of the Criminal Code, major damage to the environment is recognised as the monetary value of the costs necessary to restore the environment and the consumer properties of natural resources, in an amount exceeding one thousand monthly calculation indices.
Paragraph 2 of clause 18 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states: “Major damage to the environment (Part One of Article 324, Part Two of Articles 325, 326 and 328, Part One of Articles 329, 330, 332, 333 and 334, subparagraph 4) of Part Four of Article 335, subparagraph 4) of Part Four of Article 337, Article 338, subparagraph 3) of Part Three of Article 340, Part One of Article 341 and Part Two of Article 343 of the Criminal Code) shall mean the infliction of such harm where the monetary value of the costs necessary to restore the environment and the consumer properties of natural resources is established in an amount exceeding one thousand monthly calculation indices”.
The infliction of harm to human health, as a mandatory socially dangerous consequence, shall be understood as the infliction of minor harm to health, irrespective of whether it has resulted in the loss of working capacity, or the infliction of moderately serious or serious harm to health.
The infliction of harm to human health as a mandatory socially dangerous consequence of certain types of environmental criminal offences (Articles 324, 325, 326, 328, 329, 330, 332 and 333, and Part Two of Article 343 of the Criminal Code) shall be understood as the infliction of minor harm to health, irrespective of whether it has resulted in the loss of a person's working capacity, or the infliction of serious or moderately serious harm to health (paragraph 20 of the Regulatory Resolution of the Supreme Court). Part 1 of Article 324 of the Criminal Code refers to harm to human health. In the case of literal interpretation, the term “person” refers to any natural person in the singular.
Such a broad coverage of the types of harm to health (according to the degree of severity) is explained by the nature and legal characteristics of environmental criminal offences, as well as by the legal construction of the elements of the offences provided for by the Article under comment.
Based on the legal construction and content of the Article under comment, where harm to human health of any degree of severity is caused, the act should be qualified only under Part 1 of Article 324 of the Criminal Code (since the consequences provided for in Part 2 of Article 324 of the Criminal Code include only the death of a person).
The question arises as to how acts involving harm to the health of several persons (for example, two or three people) should be qualified. In my opinion, in this case, according to the legislator's intention, the infliction of harm to the health of several persons should be qualified under Article 234 of the Criminal Code (on the basis of the principle of extensive interpretation).
Environmental damage caused by the offender shall be calculated and compensated by the guilty person in full, irrespective of whether the damage was caused as a result of intentional actions (omissions) or negligence, in accordance with the provisions of the Civil Code, the Law “On the Protection of Wildlife”, the orders of the Ministry of Agriculture of the Republic of Kazakhstan dated 27 February 2015, “On Approval of the Amounts of Compensation for Damage Caused by Violations of the Legislation of the Republic of Kazakhstan in the Field of Protection, Reproduction and Use of Wildlife”, and dated 31 May 2007, “On Approval of Basic Rates for Calculating the Amount of Damage Caused by Violations of the Forest Legislation of the Republic of Kazakhstan”, on the basis of the rates and methodologies for calculating the amount of damage specified in the regulatory legal acts in force at the time the damage was caused, and, in their absence, on the basis of the actual costs of restoring the damaged condition of the environment, taking into account the losses incurred.
Harm caused to health or property as a result of a violation of environmental legislation shall be compensated in full, taking into account the degree of loss of the victim's working capacity, expenses incurred for treatment and restoration of health, care for the sick person, and other expenses and losses. The degree of severity of harm to health shall be determined on the basis of the conclusions of the relevant medical commissions (expert examinations).
At the same time, it is sufficient that such consequences are caused by a violation of environmental requirements committed in the course of performing one of the types of work specified in the disposition of Article 324 of the Criminal Code.
A necessary causal relationship must be established between the violation of environmental requirements and the socially dangerous consequences that have occurred.
The subjective element of the crime is characterised by indirect intent. The person is aware that they are violating environmental requirements in the use of natural resources, foresees the possibility of socially dangerous consequences occurring and consciously allows such consequences to occur or treats them with indifference. The existence of indirect intent is substantiated by the fact that environmental requirements governing the use of natural resources are, by their purpose and content, aimed at preventing harmful consequences; therefore, their violation means allowing or displaying indifference towards precisely those consequences that these requirements are intended to prevent.
It should be noted that the construction of the subjective element of certain environmental criminal offences has a number of specific features which, both in the theory of criminal law and in law enforcement practice, give rise to certain questions when determining the elements of a criminal offence.
The main issue is related to the negligent form of guilt in environmental criminal offences. As the analysis of domestic practice in the application of the criminal legislation of the Republic of Kazakhstan demonstrates, when socially dangerous acts associated with causing damage to the environment are committed, a person's mental attitude towards the act committed and, above all, towards its socially dangerous consequences is often characterised by negligence (that is, recklessness or carelessness). At the same time, if such an act is committed negligently, it cannot be recognised as a crime on the basis of Part 4 of Article 19 of the Criminal Code. In accordance with this provision, an act committed through negligence may be recognised as a crime only if this is expressly stated in the relevant Article of the Special Part of the Criminal Code.
Thus, where the act provided for in Article 324 of the Criminal Code is committed negligently, it is not recognised as a crime, and the person who committed it may be subject only to civil liability in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
Where the crime under consideration is committed with direct intent, that is, when a person is aware of the socially dangerous nature of the act, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence, that person shall be subject to criminal liability under other Articles of the Criminal Code of the Republic of Kazakhstan providing for liability for intentional criminal offences against the person, against peace and security of humanity, and against the foundations of the constitutional order and security of the State.
The subject of the crime under consideration is a sane natural person who has reached the age of 16, or a special subject.
According to paragraph 2 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, the subjects of environmental criminal offences may be any natural persons, including persons authorised to perform state functions and persons equated to them, officials, as well as persons holding responsible public positions and persons performing managerial functions in state and non-state, commercial or non-commercial organisations.
In cases where an environmental criminal offence is committed by a person authorised to perform state functions or a person equated to such a person, an official, a person holding a responsible public position, or a person performing managerial functions in a commercial or non-commercial organisation, and where their actions also contain elements of abuse of official powers or powers of a person performing managerial functions in a commercial or non-commercial organisation, their actions shall be qualified under the relevant Articles of the Criminal Code providing for liability both for the environmental criminal offence and for the corruption-related or other criminal offence against the interests of public service and public administration, or for a criminal offence against the interests of service in commercial and other organisations.
Article 178 of the Environmental Code of the Republic of Kazakhstan regulates the rights of officials exercising state environmental control, including:
to enter the territory and premises of the inspected facility for the purpose of conducting preventive control with a visit to the entity (facility) or an inspection where there are appropriate lawful grounds, including with measuring instruments and equipment for sampling and, where necessary, with the involvement of specialists, consultants and experts in accordance with the legislation of the Republic of Kazakhstan, to carry out the necessary measurements, take samples (including samples of goods and materials) and analyse them;
to request and obtain from the inspected entities (facilities) the results of laboratory tests of samples and other materials necessary to determine the extent of anthropogenic impact on the environment;
to file claims with the court seeking the restriction, suspension or prohibition of the activities of a state environmental control entity carried out in violation of the requirements of the environmental legislation of the Republic of Kazakhstan;
to identify facts of environmental damage and participate in determining measures to eliminate such damage in accordance with the requirements of this Code;
to apply to the prosecutor's office and other law enforcement agencies for assistance in preventing or suppressing actions by persons violating the requirements of the environmental legislation of the Republic of Kazakhstan;
to take measures provided for by the laws of the Republic of Kazakhstan to revoke, withdraw or suspend the validity of permits, conclusions, licences and other authorisation documents of individuals and legal entities in connection with violations of the requirements of the environmental legislation of the Republic of Kazakhstan.
Under Part 2 of Article 324 of the Criminal Code, liability arises where particularly large-scale damage is caused to the environment, or where the act results in the death of a person or mass illness among people.
According to subparagraph 3) of Article 3 of the Criminal Code, particularly large-scale damage to the environment is recognised as the monetary value of the costs necessary to restore the environment and the consumer properties of natural resources, in an amount exceeding twenty thousand monthly calculation indices.
Paragraph 3 of clause 18 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states: “Particularly large-scale damage to the environment (Part Two of Article 324, Part Three of Articles 325, 326 and 328, Part Two of Articles 329, 330, 332, 333 and 334, subparagraph 2) of Part Five of Article 337 and Part Three of Article 343 of the Criminal Code) shall mean the infliction of damage where the monetary value of the costs necessary to restore the environment and the consumer properties of natural resources is established in an amount exceeding twenty thousand monthly calculation indices”.
In the event of the death of a person, additional qualification under an Article providing for a criminal offence against the person is not required, since this aggravating circumstance is already provided for in Part 2 of Article 324 of the Criminal Code.
An even more complex and ambiguous aspect in the interpretation of the elements of the objective side of the act under consideration is the number of persons affected.
Part 2 of Article 324 of the Criminal Code specifies mass illness among people as a socially dangerous consequence associated with harm to health. Illness caused by environmental pollution is a particular case of causing harm to human health.
Mass illness among people should be understood as illness affecting a large number of people. The concept of “mass” means spreading among many people or affecting a multitude of people.
The presence of mass illness among people caused by environmental pollution must be established not only on the basis of the quantitative indicator of the number of persons who have fallen ill, but also on the basis of the area over which the illness has spread and the population density in the relevant territory.
Thus, for example, an illness may be recognised as mass in the following cases:
illness affecting 5–10 or more people over an extensive area affected by environmental pollution as a result of a single act;
illness affecting even 3 or more people if the polluted area covers a sparsely populated territory (for example, a settlement with a population of 10 people).
The concept of morbidity is used to provide a quantitative description of the epidemic process. Morbidity is determined by the ratio of the number of persons who have fallen ill during a certain period (for example, a year) to the number of residents of the relevant district. Morbidity is expressed in coefficients per 100, 10 or 1,000 people.
The act provided for in Part 1 of Article 324 of the Criminal Code is classified as a crime of medium gravity.
The act provided for in Part 2 of Article 324 of the Criminal Code is classified as a serious crime.
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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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