Commentary on Article 327. Violation of Veterinary Rules or Rules Established for Combating Plant Diseases and Pests of the Criminal Code of the Republic of Kazakhstan

1. Violation of veterinary rules resulting in the spread of epizootics or other grave consequences shall be punishable by:

a fine in an amount of up to three thousand monthly calculation indices, or corrective labor 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.

2. Violation of rules established for combating plant diseases and pests, resulting in grave consequences, shall be punishable by:

a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period.

One of the threats to national security, pursuant to paragraph 18 of Article 6 of the Law of the Republic of Kazakhstan “On National Security of the Republic of Kazakhstan,” is a sharp deterioration in the environmental situation, including the quality of drinking water, natural disasters and other emergencies of natural and technological origin, epidemics and epizootics.

The principal regulatory legal act governing veterinary matters is the Law of the Republic of Kazakhstan dated July 10, 2002, “On Veterinary Medicine.” This Law defines the legal, organizational and economic foundations for carrying out activities in the field of veterinary medicine and is aimed at ensuring veterinary and sanitary safety.

Veterinary medicine (the field of veterinary medicine) is an area of specialized scientific knowledge and practical activity aimed at studying animal diseases and food poisoning (lesions), their prevention, diagnosis, treatment and elimination, ensuring that facilities subject to state veterinary and sanitary control and supervision comply with the requirements of the legislation of the Republic of Kazakhstan in the field of veterinary medicine, as well as protecting the population from diseases common to animals and humans (paragraph 6 of Article 1 of the Law “On Veterinary Medicine”).

The public danger of violating veterinary rules or rules established for combating plant diseases and pests lies in undermining environmental safety, the spread of epizootics, and the occurrence of other grave consequences.

The object of the crime is environmental safety regulated by veterinary rules and rules governing the fight against plant diseases and pests. The additional objects are human life and health, as well as the viability and ecological balance of other ecosystems.

From the objective aspect, the crime under consideration consists in violating veterinary rules, which results in the spread of epizootics or other grave consequences.

Pursuant to paragraph 8) of Article 1 of the aforementioned Law, veterinary (veterinary and sanitary) rules are a regulatory legal act establishing veterinary (veterinary and sanitary, zoohygienic) requirements for facilities subject to state veterinary and sanitary control and supervision, as well as determining the procedure for conducting veterinary measures on the basis of veterinary standards, which is mandatory for individuals and legal entities to comply with.

Veterinary measures are a set of anti-epizootic and veterinary and sanitary procedures aimed at preventing the occurrence and spread of animal diseases or eliminating them, including their prevention, treatment or diagnosis; the neutralization (disinfection), seizure and destruction of animals infected with particularly dangerous diseases that pose a threat to animal and human health; increasing animal productivity; ensuring the safety of products and raw materials of animal origin, feed and feed additives, including the identification of agricultural animals, for the purpose of protecting animal and human health from infectious diseases, including those common to animals and humans (paragraph 20 of Article 1 of the aforementioned Law).

Violation of veterinary rules may be committed both through an act (for example, by selling sick livestock or importing sick animals into Kazakhstan, driving sick animals into a common herd, etc.) and through omission (by refusing to carry out mandatory preventive measures, failing to carry out, or incompletely carrying out, measures to eliminate outbreaks of contagious animal diseases in a timely manner, etc.).

According to the aforementioned Law, an epizootic is the mass spread of particularly dangerous and other infectious animal diseases within the territory of the relevant administrative-territorial unit (paragraph 45 of Article 1).

An epizootic means the simultaneous spread of a disease among a large number of animals (both domestic and wild) of one or several species over a significant territory.

Particularly dangerous animal diseases are animal diseases accompanied by rapid or widespread transmission, high morbidity or mortality among animals, and significant socio-economic damage, including diseases common to animals and humans, as determined by the authorized state body (paragraph 30 of Article 1 of the aforementioned Law).

Other grave consequences may consist in causing significant losses to enterprises or other business entities operating in the field of agricultural production as a result of livestock or poultry deaths or a reduction in the growth of their population.

If at least one person contracts a serious infectious disease as a result of a violation of veterinary rules, the act is classified under Article 327 of the Criminal Code and the relevant article concerning crimes against health (Article 106 of the Criminal Code, “Intentional Infliction of Serious Harm to Health”).

For the elements of this crime to be present, harmful consequences must have occurred as a result of the violation of veterinary rules: the spread of epizootics or other grave consequences. Thus, the act provided for in Part 1 of Article 327 of the Criminal Code is classified as a crime with a material element and is considered completed only in cases where animals have become ill or other grave consequences described above have occurred.

The subjective aspect of the crime is characterized by guilt in the form of indirect intent. The perpetrator, while violating veterinary rules, is aware of doing so, foresees the possibility of socially dangerous consequences and consciously allows them to occur or is indifferent to their occurrence.

The subject of the crime may be a sane individual who has reached the age of 16.

Part 2 of Article 327 of the Criminal Code provides for liability for violating rules established for combating plant diseases and pests, resulting in grave consequences.

The public danger of the crime provided for in Part 2 of Article 327 of the Criminal Code lies in the fact that failure to comply with rules aimed at combating various plant diseases and pests causes significant harm to forestry or agriculture.

The principal regulatory legal act governing matters concerning the fight against plant diseases and pests is the Law of the Republic of Kazakhstan dated July 3, 2002, “On Plant Protection.” This Law defines the legal, economic and organizational foundations for carrying out activities in the field of protecting plants against pests, weeds and plant diseases and is aimed at preserving crops and their quality, as well as preventing harmful effects on human health and the environment when carrying out phytosanitary measures within the territory of the Republic of Kazakhstan.

According to paragraph 5) of Article 1 of the Law “On Plant Protection,” harmful organisms are pests, weeds and plant diseases that adversely affect soil, vegetation and agricultural products.

Plant protection is a field of activity aimed at developing and practically applying methods of phytosanitary monitoring and phytosanitary measures in order to prevent losses of crop production caused by harmful and particularly dangerous harmful organisms (paragraph 8 of Article 1 of the aforementioned Law).

Particularly dangerous harmful organisms are plant pests and diseases capable of periodically reproducing and spreading on a mass scale, causing economic and environmental damage, and included in the list of particularly dangerous harmful organisms approved by the authorized body (paragraph 4 of Article 1 of the Law).

Plant protection products are pesticides, biological preparations, as well as technical and other means used for the purpose of protecting plants (paragraph 8-1 of Article 1 of the Law).

Pesticides are chemical and (or) biological preparations (insecticides, rodenticides, fungicides, herbicides, pre-emergence herbicides and plant growth regulators, defoliants, desiccants) used to combat harmful and particularly dangerous harmful organisms, quarantine objects and alien species, pests of stored agricultural products, as well as for seed treatment, pre-harvest drying, leaf removal and regulation of plant growth (paragraph 10 of Article 1 of the Law).

Neutralization of pesticides means measures aimed at the disposal and destruction of prohibited or unusable pesticides and containers from such pesticides, as well as containers from used pesticides, in accordance with the legislation of the Republic of Kazakhstan (paragraph 11 of Article 1 of the Law).

From the objective aspect, the crime provided for in Part 2 of Article 327 of the Criminal Code is expressed in the violation of rules established for combating plant diseases and pests, both through an act and through omission (for example, failure to carry out measures to destroy identified plant pests, etc.).

In order to ensure a favorable phytosanitary situation, individuals and legal entities whose activities are connected with facilities subject to state phytosanitary control must conduct phytosanitary monitoring on their territories and, if harmful and particularly dangerous harmful organisms are detected in numbers exceeding the economic threshold of harmfulness, carry out phytosanitary measures (Article 11 of the Law).

Phytosanitary monitoring is a system of measures that includes the inspection, observation and recording of the development and spread of harmful and particularly dangerous harmful organisms, as well as the development of a phytosanitary forecast on this basis (paragraph 20 of Article 1 of the Law).

A phytosanitary forecast is a preliminary determination of the possible spread and degree of development of harmful and particularly dangerous harmful organisms for the purpose of planning the timing and scope of phytosanitary measures (paragraph 19 of Article 1 of the Law).

Phytosanitary measures are a set of measures ensuring the destruction and (or) reduction in the number and harmfulness of harmful and particularly dangerous harmful organisms below the economic threshold of harmfulness (paragraph 22 of Article 1 of the Law).

The storage, sale and use of pesticides must be carried out under conditions ensuring the prevention of harmful effects of pesticides on human health and the environment (paragraph 1 of Article 12 of the Law).

The use of pesticides shall be carried out in compliance with the technology for their effective and safe application established in the list of pesticides permitted for use within the territory of the Republic of Kazakhstan.

The use of pesticides in violation of the requirements and technological regulations is prohibited.

It is prohibited to leave unused pesticides at the place of work, except in places specifically designated for temporary storage.

Violation of the aforementioned legislative requirements constitutes the elements of the crime provided for in Part 2 of the article under consideration.

An obligatory condition for criminal liability is the occurrence of the grave consequences specified in the disposition of Part 2 of Article 327 of the Criminal Code. These include the mass spread of pests and diseases resulting in the felling of a large number of fruit trees, berry bushes and vineyard plantations, the destruction of crops or a reduction in yields across significant areas; poisoning and death of livestock, etc.

The subjective aspect of the crime is characterized by guilt in the form of indirect intent. The person is aware that they are violating the rules established for combating plant diseases and pests, allows the consequences specified in the disposition of the article to occur or is indifferent to their occurrence.

The subject of the crime may be a sane individual who has reached the age of 16.

The act provided for in Part 1 of Article 327 of the Criminal Code belongs to crimes of medium gravity.

The act provided for in Part 2 of Article 327 of the Criminal Code belongs to minor crimes.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored 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 reforming the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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