Commentary on Article 326. Violation of Environmental Requirements in the Handling of Microbiological or Other Biological Agents or Toxins of the Criminal Code of the Republic of Kazakhstan
1. Violation of environmental requirements during the storage, destruction or burial of microbiological or other biological agents or toxins, or their illegal importation into the Republic of Kazakhstan for processing, storage or burial, if such act has caused or could have caused 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 of 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. Acts provided for in Parts One or Two of this Article, which have caused particularly large damage to the environment, or 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.
The public danger of the criminal offence (Part 1 — a criminal misdemeanour, Parts 2 and 3 — crimes) lies in the fact that it undermines environmental safety, causes harm to the environment, human life or health, and results in mass illness among people.
The object of the criminal offence is environmental safety, the concept of which was examined in the analysis of the environmental crime provided for in Article 324 of the Criminal Code.
The subject matter of the criminal offence consists of microbiological and other biological agents, as well as biological toxins.
Microbiological agents should be understood as microorganisms (microbes) — the smallest, predominantly unicellular organisms, visible only under a microscope: bacteria, microscopic fungi and algae, as well as viruses, which are characterised by an enormous diversity of species, are capable of existing under various conditions and are used in the food industry and other industrial sectors.
According to the degree of risk associated with working with them, microorganisms are divided into non-pathogenic; conditionally pathogenic; pathogenic; and pathogenic microorganisms potentially capable of transmitting infection — causative agents of particularly dangerous infections. The last two categories of microorganisms belong to the category of toxins.
Other biological agents that do not belong to microorganisms are predominantly multicellular organisms of biological origin (for example, animals used in scientific research of a diagnostic and experimental nature — mice, rats, dogs, etc.).
Toxins are compounds of bacterial, plant or animal origin that are capable of causing illness or death when they enter the organisms of animals, plants or humans. Microbiological toxins include pathogenic microorganisms that cause diseases in plants, animals and humans.
It should be noted that the correct determination of the subject matter of a criminal offence is of great importance for its proper legal classification. In particular, it should be distinguished from the subject matter of the crime provided for in Article 325, which consists of chemical or biological substances. It is difficult for a non-specialist to distinguish, for example, biological agents or toxins from chemical substances. In the disposition of Article 325, the legislator uses the concept of “substances”, whereas in the disposition of Article 326 of the Criminal Code, the terms “agents or toxins” are used. This distinction makes it possible to assume that the disposition of Article 326 of the Criminal Code refers to substances of a more active nature.
The objective aspect of the criminal offence under consideration is characterised by the violation of environmental requirements during the storage, destruction or burial of microbiological or other biological agents or toxins, or their illegal importation into the Republic of Kazakhstan for processing, storage or burial, if such act has caused or could have caused significant damage to the environment or has caused harm to human health, as well as by the causal relationship between the violation of environmental requirements and the consequences that have occurred.
According to Article 403 of the Environmental Code of the Republic of Kazakhstan, a genetically modified organism means any organism (including a microorganism), with the exception of a human organism, that possesses a new combination of genetic material obtained through the use of modern biotechnology.
The deliberate release of genetically modified organisms into the environment means any intentional introduction (release) into the environment of genetically modified organisms or combinations of genetically modified organisms, for which no special isolation (containment) measures are used to limit contact with genetically modified organisms and ensure a high level of safety for the population as a whole and the environment.
The following requirements must be observed during the deliberate release of genetically modified organisms into the environment:
- The deliberate release of genetically modified organisms into the environment at any new location shall be carried out only if there are positive conclusions of the sanitary and epidemiological examination and after the genetically modified organisms have been entered into the register (list) of genetically modified organisms and products;
- In the decision-making process concerning the deliberate release of genetically modified organisms into the environment, the following information may under no circumstances be considered confidential: a general description of the genetically modified organism; the name and address of the entity planning to carry out the deliberate release of genetically modified organisms into the environment; the location of the site where the deliberate release of genetically modified organisms into the environment is planned; the intended types of use of genetically modified organisms; environmental impact assessment documentation; conclusions of the sanitary and epidemiological examination; results of public participation; the content of the decision authorising the deliberate release of genetically modified organisms into the environment and the justification thereof;
- Measures must be ensured to prevent the uncontrolled spread of genetically modified organisms (Paragraph 4 of Article 403 of the Environmental Code).
The production and use of potentially hazardous chemical and biological substances shall be permitted only after the necessary toxicological and hygienic as well as ecotoxicological studies have been conducted, hygienic regulations governing their handling have been established, hygienic and environmental standards have been determined, and these substances have undergone state registration in accordance with the procedure established by the Government of the Republic of Kazakhstan.
The storage, destruction or burial of microbiological or other biological agents or toxins in the environment shall be permitted only if the relevant environmental requirements are in place and with the permission of specially authorised state bodies in the field of environmental protection.
The illegal importation of microbiological or other biological agents or toxins into the Republic of Kazakhstan for processing, storage or burial may be carried out only with a special permit from the Government of the Republic of Kazakhstan. The importation of products that do not have technology for their neutralisation or disposal after use is prohibited.
By its structure, the composition of this criminal offence is material-formal, that is, it is recognised as a material offence when significant 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, as a result of a violation of environmental requirements, harmful consequences have not occurred but could have resulted in significant damage to the environment (see the commentary to Part 1 of Article 325 of the Criminal Code).
For the concept of “significant damage”, see the commentary to Part 1 of Article 325 of the Criminal Code.
The concept of “harm to human health” is identical to the concept examined in the analysis of the environmental crime provided for in Part 1 of Article 324 of the Criminal Code.
The subjective aspect of the criminal offence is characterised by indirect intent, the concept of which was examined in the analysis of the environmental crime provided for in Article 324 of the Criminal Code.
The subject of the criminal offence is a physically sane individual who has reached the age of 16 by the time of its commission and who has been granted the right to handle microbiological or other biological agents or toxins by special regulatory legal acts.
The qualifying and particularly qualifying features provided for in Parts 2–3 of Article 326 of the Criminal Code are identical to the aggravating and particularly aggravating features provided for in Parts 2–3 of Article 325 of the Criminal Code (see the commentary to Article 325 of the Criminal Code).
The act provided for in Part 1 of Article 326 of the Criminal Code is classified as a criminal misdemeanour.
The act provided for in Part 2 of Article 326 of the Criminal Code is classified as a crime of medium gravity.
The act provided for in Part 3 of Article 326 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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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