Commentary on Article 325 of the Criminal Code of the Republic of Kazakhstan. Violation of Environmental Requirements in the Handling of Environmentally Potentially Hazardous Chemical or Biological Substances

1. Violation of environmental requirements during the production, transportation, storage, burial, use or other handling of environmentally potentially hazardous chemical or biological substances, if such an act has resulted in or could have resulted in significant damage to the environment, or has caused harm to human health, —

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.

2. The same act, which has caused or created a threat of causing major damage to the environment, as well as an act committed in an area experiencing an environmental emergency, —

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.

3. The acts provided for in Parts One or Two of this Article, which have resulted in particularly large-scale damage to the environment, or the death of a person, or mass illness among people, —

shall be punishable by imprisonment for a period of two 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.

According to subparagraph 18 of Article 6 of the Law of the Republic of Kazakhstan dated 6 January 2012, “On National Security of the Republic of Kazakhstan,” one of the threats to the national security of the Republic of Kazakhstan is a sharp deterioration of the environmental situation, including the quality of drinking water, natural disasters and other emergencies of a natural and man-made nature, epidemics and epizootics.

The public danger of the criminal offence under consideration (Part 1 constitutes a criminal misdemeanour, while Parts 2 and 3 constitute crimes) lies in the fact that it undermines environmental security, causes harm to the environment, human life or health, and results in mass illness among people.

The object of the criminal offence is environmental security. The concept of “environmental security” was examined in the analysis of the environmental crime provided for in Article 324 of the Criminal Code.

Additional objects include human life and health, the habitat and viability of animal and plant life, etc.

The subject matter of the criminal offence consists of environmentally potentially hazardous chemical or biological substances.

Chemical substances include toxic chemical preparations that do not undergo decomposition and actively affect the human body and the natural environment; harmful chemical substances used in agricultural production (chemical plant protection products, mineral fertilisers, biostimulants).

Biological substances are defined as chemical substances that possess high physiological activity at low concentrations in relation to certain groups of living organisms (primarily humans, as well as plants and animals) or to individual groups of their cells. The physiological activity of substances may be considered both from the perspective of the possibility of their medical application and from the perspective of maintaining the normal vital functions of the human body or imparting special properties to a group of organisms (such as increased resistance of cultivated plants to diseases).

The objective elements of the criminal offence consist of violations of environmental requirements during the production, transportation, storage, burial, use or other handling of environmentally potentially hazardous chemical or biological substances, provided that these acts have resulted in or could have resulted in significant damage to the environment, or have caused harm to human health, as well as the causal relationship between the violation of environmental requirements and the consequences that have occurred.

During the production and use of potentially hazardous chemical and biological substances, including genetically modified organisms and products, the following must be ensured:

compliance with established standards for the maximum permissible impact on the environment during their production, storage, transportation and use;

implementation of measures to prevent the harmful consequences of their use for public health (human health) and the environment.

A violation of environmental requirements during the production of potentially hazardous chemical or biological substances should be understood as the operation of industrial and other enterprises in the course of which environmentally potentially hazardous chemical or biological substances described above emerge (are formed).

Transportation means the movement of the substances specified in Article 325 of the Criminal Code, regardless of the method of their transportation and place of storage (by pipeline, railway, road, horse-drawn, water or air transport).

Storage should be understood as any actions associated with keeping environmentally hazardous substances in a person's possession (on their person, in production premises, storage facilities, hiding places, etc.).

Burial consists of placing substances and waste in water or soil and leaving them there.

Use means the application of environmentally hazardous substances in violation of the rules ensuring their safety for people and the environment.

Other handling of environmentally potentially hazardous chemical or biological substances should be understood as their acquisition, transfer, write-off, disposal or destruction without the permission of the competent authorities and in violation of public order.

In accordance with the wording of Part 1 of the disposition of the Article under consideration, a violation of environmental standards entails criminal liability if such an act has resulted in or could have resulted in significant damage to the environment, or has caused harm to human health.

The threat of causing significant damage to the environment should be understood as the possibility of deterioration in the quality of the natural environment and possible diseases among animals and plants.

By its legal structure, the composition of this environmental criminal offence is material-formal, meaning that it is recognised as a material offence when significant damage to the environment is caused or harm to human health is inflicted and, accordingly, 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 such a violation could have resulted in significant damage to the environment.

According to subparagraph 2) of Article 3 of the Criminal Code, significant 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, amounting to one hundred monthly calculation indices or exceeding that amount.

“Significant damage to the environment (Part One of Articles 325, 326 and 328, subparagraph 1) of Part One of Article 335, Part Three of Article 337 and Part One of Article 342 of the Criminal Code),” as stated in paragraph 18 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,” “should be understood as causing harm to human health, substantial deterioration in the quality of the environment and recreational areas, the occurrence of mass diseases among animals, a reduction or destruction of significant quantities of fish stocks and other aquatic plants and organisms, plant diseases and diseases affecting forest areas, substantial deterioration in soil fertility, mass illness among people, as well as other consequences whose elimination requires expenses exceeding one hundred monthly calculation indices.”

The concept of “causing harm to human health” is analysed in the commentary to Part 1 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.

From the subjective side, the environmental criminal offence under consideration is characterised by guilt in the form of direct or indirect intent. The person is aware that they are violating environmental requirements during the production, transportation, storage, burial, use or other handling of environmentally potentially hazardous chemical or biological substances, foresees the possibility or inevitability of socially dangerous consequences, does not desire their occurrence but consciously allows such consequences to occur or treats them with indifference. The volitional element of intent consists in consciously allowing significant damage to be caused or treating such damage with indifference.

The subject of the criminal offence may be a sane individual who has reached the age of 16 and who, pursuant to the relevant regulatory legal acts, has been entrusted with duties in connection with operations involving chemical or biological substances.

If the specified acts are committed by a private individual, for example, a person illegally engaged in entrepreneurial activity, such person may be held liable under Article 325 of the Criminal Code and also for the illegal handling of radioactive substances, radioactive waste and nuclear materials (Article 283 of the Criminal Code).

Officials who are entrusted with the official duty of supervising the activities of persons ensuring the production, transportation, storage, burial, use or other handling of environmentally potentially hazardous chemical or biological substances and who evade the performance of this duty must, if the consequences specified in Parts 2 and 3 of Article 325 of the Criminal Code occur, also be held criminally liable under Article 371 of the Criminal Code, “Negligence.”

Part 2 of Article 325 of the Criminal Code establishes liability for violations of environmental requirements during the production, transportation, storage, burial, use or other handling of environmentally potentially hazardous chemical or biological substances, where such violations have caused or created a threat of causing major damage to the environment, as well as where they have been committed in an area experiencing an environmental emergency.

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.

The threat of causing major damage to the environment should be understood as the existence of a real danger of causing harm to the environment or of the emergence of a situation or circumstances that could have resulted in major damage to the environment, had they not been prevented in a timely manner by measures taken or by other circumstances beyond the control of the perpetrator.

When determining whether the territory within which a criminal offence related to a violation of environmental legislation was committed constitutes a specially protected natural area or an area experiencing an environmental emergency (Part 2 of Articles 325, 326, 328 and 332, subparagraph 6) of Part 3 of Article 335, subparagraph 1) of Part 4 of Article 337, subparagraph 4) of Part 3 of Article 340 of the Criminal Code), it is necessary to proceed from the provisions of the Environmental Code of the Republic of Kazakhstan and the Law of the Republic of Kazakhstan dated 7 July 2006, “On Specially Protected Natural Areas,” which establish and define the legal, economic, social and organisational foundations of the activities of specially protected natural areas (paragraph 4 of the Regulatory Resolution of the Supreme Court).

According to subparagraph 3) of Article 1 of the Law of the Republic of Kazakhstan “On Specially Protected Natural Areas,” a specially protected natural area is a section of land, water bodies and the airspace above them containing natural complexes and objects of the state natural reserve fund, for which a special protection regime has been established.

An environmental emergency is an environmental situation that has arisen within a section of territory or water area where, as a result of anthropogenic activity or natural processes, persistent negative changes in the environment are occurring that threaten human life and/or health, the condition of natural ecological systems, and the genetic resources of plants and animals (paragraph 1 of Article 404 of the Environmental Code). For the purposes of this paragraph, a threat to public health means an increase in the frequency of reversible health disorders associated with environmental pollution (paragraph 1 of Article 404 of the Environmental Code).

It should be borne in mind that the Environmental Code also uses the concept of an environmental disaster, which is defined as an environmental situation that has arisen within a section of territory where, as a result of anthropogenic activity or natural processes, profound irreversible changes in the environment have occurred, resulting in a substantial deterioration in public health, the destruction of natural ecological systems and/or deterioration in the condition of flora and fauna (paragraph 2 of Article 404 of the Environmental Code).

A substantial deterioration in public health means an increase in the number of irreversible and life-incompatible health disorders, changes in the structure of causes of death and the emergence of specific diseases caused by environmental pollution, as well as a substantial increase in the frequency of reversible health disorders associated with environmental pollution.

The composition of the environmental crime provided for in Part 2 of Article 325 of the Criminal Code is material-formal in structure, meaning that it is recognised as a material offence when major damage to the environment is caused and, accordingly, 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 a threat of causing major damage to the environment has been created (see the commentary to Part 1 of Article 324 of the Criminal Code), or where the act has been committed in an area experiencing an environmental emergency.

Part 3 of Article 325 of the Criminal Code provides for particularly qualifying circumstances, which include causing particularly large-scale damage to the environment, the death of a person, or mass illness among people.

The aforementioned particularly aggravating circumstances were examined in the analysis of the environmental crime provided for in Part 2 of Article 324 of the Criminal Code.

The act provided for in Part 1 of Article 325 of the Criminal Code constitutes a criminal misdemeanour.

The act provided for in Part 2 of Article 325 of the Criminal Code constitutes a crime of medium gravity.

The act provided for in Part 3 of Article 325 of the Criminal Code constitutes 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 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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