Commentary on Article 328. Pollution, Littering or Depletion of Waters of the Criminal Code of the Republic of Kazakhstan

1. Pollution, littering, depletion of surface or groundwater, glaciers, sources of drinking water supply, or other alteration of their natural properties, if this has resulted in or could result in significant damage to the environment or has caused harm to human health, —

shall be punishable by a fine in the 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 acts, which have caused or created a threat of causing major damage to the environment, as well as acts committed in specially protected natural areas or in areas of environmental emergency, —

shall be punishable by a fine in the 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 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 or without such deprivation.

The public danger of pollution, littering and depletion of surface or groundwater, glaciers, sources of drinking water supply, or other alteration of their natural properties (Part 1 — a criminal misdemeanour, Parts 2 and 3 — criminal offences) is determined by the importance of this component of the natural environment for human life. Pollution, littering or depletion of waters causes substantial harm to water resources, wildlife and vegetation, human life and health, and results in mass illness among people.

In accordance with the environmental legislation of the Republic of Kazakhstan, water bodies are subject to protection against:

anthropogenic pollution;

littering;

depletion (paragraph 1 of Article 212 of the Environmental Code).

In accordance with the environmental legislation of the Republic of Kazakhstan, water bodies are subject to protection for the purpose of preventing:

harm to human life and (or) health;

disruption of the stability of ecological systems;

desertification and degradation of land, forests and other components of the natural environment;

reduction of biodiversity;

environmental damage (paragraph 2 of Article 212 of the Environmental Code).

The object of the criminal offence is environmental safety, ensured through the rational use and protection of the aquatic environment against pollution, littering and depletion of surface or groundwater, glaciers, sources of drinking water supply, or other alteration of the natural properties thereof. Additional objects are human health and life, ecological balance and the viability of wildlife, plant life and fish stocks, as well as forestry and agriculture as natural resources and public assets.

Pursuant to Article 4 of the Water Code of the Republic of Kazakhstan dated 9 July 2003, the water fund includes the aggregate of all water bodies within the territory of the Republic of Kazakhstan that have been included or are subject to inclusion in the State Water Cadastre.

Water bodies of the Republic of Kazakhstan include concentrations of water in land surface reliefs and underground formations that have boundaries, volume and a water regime. These include: seas, rivers, canals equated to rivers, lakes, glaciers and other surface and underground water bodies (Article 5 of the Water Code).

Water resources of the Republic of Kazakhstan represent reserves of surface and groundwater concentrated in water bodies that are used or may be used (Article 6 of the Water Code).

Protection of water bodies is an activity aimed at the preservation, restoration and replenishment of water bodies, as well as the prevention of the harmful effects of water (subparagraph 38) of Article 1 of the Water Code). Water bodies are divided into:

surface water bodies;

underground water bodies;

marine waters of the Republic of Kazakhstan;

transboundary waters (paragraph 2 of Article 11 of the Water Code).

Depending on the types of use, water bodies are divided into:

water bodies for general use;

water bodies for joint use;

water bodies for separate use;

water bodies located within specially protected natural areas;

water bodies of special state significance;

water bodies of the state forest fund (paragraph 3 of Article 11 of the Water Code).

Surface water bodies are divided into: 1) water reservoirs — rivers and canals equated to them, lakes, reservoirs, ponds and other inland water bodies; territorial waters; 2) glaciers and swamps (paragraph 1 of Article 12 of the Water Code).

Surface water bodies consist of surface waters, the bed and the banks (paragraph 2 of Article 12 of the Water Code).

Underground water bodies include:

basins of underground rivers;

underground water deposits and areas;

aquifers and complexes;

natural outlets of groundwater onto land (springs) (Article 13 of the Water Code).

Unless otherwise provided for by international treaties ratified by the Republic of Kazakhstan, the marine waters of the Republic of Kazakhstan include the waters of the Caspian and Aral Seas within the state border of the Republic of Kazakhstan (Article 14 of the Water Code).

Transboundary waters are surface and underground water bodies that mark and (or) cross the state border of the Republic of Kazakhstan (paragraph 1 of Article 15 of the Water Code).

The procedure for the use and protection of transboundary waters is established by the Water Code, the legislation of the Republic of Kazakhstan on the State Border, and international treaties ratified by the Republic of Kazakhstan (paragraph 2 of Article 15 of the Water Code).

The objective element of the criminal offence consists of: a) pollution; b) littering; c) depletion of surface or groundwater, glaciers and sources of drinking water supply; d) other alteration of their natural properties, if this has resulted in or could result in significant damage to the environment or has caused harm to human health.

According to paragraph 1 of Article 113 of the Water Code, pollution of water bodies is recognised as the discharge or other introduction into water bodies of objects or pollutants that deteriorate the qualitative condition of water bodies and impede their use.

According to paragraph 3 of Article 212 of the Environmental Code, pollution of water bodies is recognised as the presence in surface or groundwater of pollutants in concentrations exceeding the environmental water quality standards established by the state, or physical impacts at levels exceeding the established standards, with the exception of facilities equipped and intended for waste disposal and wastewater discharge that prevent pollution of the earth's surface, subsoil, surface and groundwater.

Sources of pollution of water bodies are recognised as the introduction of pollutants and physical impacts into water bodies as a result of anthropogenic and natural factors, as well as the formation of pollutants in water bodies as a result of chemical, physical and biological processes occurring therein.

Water bodies are protected against all types of pollution, including diffuse pollution (pollution through the earth's surface, soil, subsoil or atmospheric air). Paragraph 2 of Article 113 of the Water Code also states that water bodies are protected against all types of pollution, including diffuse pollution.

For the purpose of protecting water bodies against pollution, the following are prohibited:

the use of pesticides and fertilisers within the water catchment area of water bodies. Disinfection, disinsection and deratisation measures within the water catchment area and sanitary protection zone of water bodies shall be carried out in coordination with the authorised body in the field of sanitary and epidemiological welfare of the population;

the discharge and burial of radioactive and toxic substances in water bodies;

the discharge into water bodies of wastewater from industrial and food production facilities that do not have treatment facilities and do not ensure effective treatment in accordance with established standards;

the performance of blasting operations on water bodies involving the use of nuclear and other types of technologies accompanied by the release of radioactive and toxic substances;

the use of machinery and technologies on water bodies and water management facilities that pose a threat to public health and the environment (paragraph 3 of Article 113 of the Water Code).

Littering of water bodies shall be understood as the entry into them of solid industrial, household and other waste, as well as suspended particles, as a result of which the hydrological condition of the water body deteriorates and water use becomes more difficult (paragraph 1 of Article 114 of the Water Code).

The discharge of solid industrial, household and other waste into water bodies and the burial thereof therein are prohibited (paragraph 2 of Article 114 of the Water Code).

Discharge of pollutants means the introduction of pollutants contained in wastewater into surface and underground water bodies, subsoil or onto the earth's surface (paragraph 1 of Article 213 of the Environmental Code).

Wastewater means:

water used for industrial or domestic purposes which, as a result, has acquired additional impurities of pollutants that have changed its original composition or physical properties;

rainwater, meltwater, infiltration water, irrigation and washing water, and drainage water flowing from the territories of settlements and industrial enterprises;

groundwater extracted incidentally during operations related to subsoil use (quarry, mine and mining waters, formation waters extracted incidentally together with hydrocarbons) (paragraph 2 of Article 213 of the Environmental Code).

Littering of water catchment areas of water bodies, the ice cover of water bodies and glaciers with solid industrial, household and other waste, the washing-off of which will result in deterioration of the quality of surface and underground water bodies, is not permitted (paragraph 3 of Article 114 of the Water Code).

Depletion of water bodies is recognised as a reduction in the minimum permissible flow level, a decrease in surface water reserves or a reduction in groundwater reserves (paragraph 1 of Article 115 of the Water Code) (see also paragraph 5 of Article 212 of the Environmental Code).

For the purpose of preventing the depletion of water bodies, individuals and legal entities using water bodies are obliged to:

prevent the excessive non-returnable withdrawal of water from water bodies beyond established limits;

prevent land ploughing, bathing and sanitary treatment of livestock, construction of buildings and other types of economic activity leading to the depletion of water bodies within water protection zones and strips;

carry out water protection measures (paragraph 2 of Article 115 of the Water Code).

Water protection measures aimed at preventing the depletion of water bodies and carried out by individuals and legal entities shall be preliminarily coordinated with basin inspectorates, the authorised state body in the field of environmental protection and the authorised body for the study of subsoil (paragraph 3 of Article 115 of the Water Code).

Glaciers are masses of ice, predominantly of atmospheric origin, that undergo viscous-plastic flow under the influence of gravity and have taken the form of a stream, a system of streams, a dome (ice sheet) or a floating plate. Glaciers are formed as a result of the accumulation and subsequent transformation of solid atmospheric precipitation (snow) when there is a positive multi-year balance thereof.

A source of drinking water supply is a water body or a part thereof containing water that meets established sanitary requirements and is used (or may be used) for the abstraction of drinking water into drinking water supply systems using a particular treatment technology.

Other alteration of the natural properties of surface and underground water bodies and sources of drinking water supply means a substantial change in their original chemical, physical or biological composition. For example, a substantial change in the thermal regime of water as a result of the activities of thermal power plants threatens the reproduction of many fish species, etc.

Environmental water quality standards are set out in Article 214 of the Environmental Code.

By its legal structure, the elements of this criminal offence constitute a material-formal composition, meaning that it is recognised as a material offence where significant damage to the environment has been caused or harm to human health has been caused 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). The concept of “significant damage to the environment” is provided in the commentary to Part 1 of Article 325 of the Criminal Code.

The concept of “harm to human health” is provided in the commentary to Part 1 of Article 324 of the Criminal Code.

The operation of industrial, agricultural, municipal and other facilities with defective treatment facilities and equipment, the shutdown of treatment facilities and equipment, violations of the rules for transportation, storage and use of mineral fertilisers and preparations, and the commission of other actions involving the pollution, littering and depletion of waters entail criminal liability if these acts have resulted in the consequences specified in Part 1 of Article 328 of the Criminal Code.

An obligatory element of the objective side of the criminal offence under consideration is the causal link between the pollution, littering and depletion of waters and the occurrence of harmful consequences.

For example, State Administration “I” filed a claim with the court against subsidiary LLP “G” of Company “N” for compensation for environmental damage. In substantiation of the claim, it was stated that an accident had occurred at Section 3 of the diesel fuel storage facility of subsidiary LLP “G” of Company “N”, as a result of which wastewater entered the V. River, as well as the area adjacent to the water body in the Glubokovsky District of the East Kazakhstan Region. As a result, the cyanide concentration in water samples exceeded the established standard by 516 times; exceedances of the maximum permissible concentrations (MPC) of copper, nickel and iron were also detected in water bodies adjacent to the accident site. By a decision of the Specialised Interdistrict Economic Court of the East Kazakhstan Region dated 18 January 2012, the claim was partially satisfied. The court ordered subsidiary LLP “G” of Company “N” to compensate for environmental damage by carrying out measures in the amount of 700,214,357 tenge.

The subjective element of the criminal offence is expressed in the form of indirect intent. The person is aware that they are violating the prohibition established by criminal and environmental legislation against the pollution, littering or depletion of surface or groundwater, glaciers, sources of drinking water supply, or other alteration of the natural properties of water bodies, as well as the prohibitions against exceeding the permitted volumes and qualitative composition of substances, waste or materials discharged into waters, etc., and accepts the possibility of the consequences specified in the disposition of the Article occurring or is indifferent to their occurrence.

The subject of the criminal offence may be either an official or a private individual who has reached the age of sixteen and pollutes water bodies.

Part 2 of Article 328 of the Criminal Code establishes liability for the pollution, littering or depletion of surface or groundwater, glaciers, sources of drinking water supply, or other alteration of their natural properties, which has caused or created a threat of causing major damage to the environment, as well as acts committed in specially protected natural areas or in areas of environmental emergency.

The concept of “major damage” is provided in the commentary to Part 1 of Article 324 of the Criminal Code.

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

In accordance with 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 nature reserve fund, for which a special protection regime has been established.

An environmental emergency situation means an environmental condition that has arisen in a particular area where, as a result of economic and other activities or natural processes, persistent adverse changes in the environment are occurring that threaten public health, the condition of natural ecological systems, and the genetic resources of plants and animals.

By its legal structure, the elements of the criminal offence provided for in Part 2 of Article 328 of the Criminal Code constitute a material-formal composition, meaning that it is recognised as a material offence where major damage to the environment has been caused 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 a threat of causing major damage to the environment has been created, or the acts have been committed in specially protected natural areas or in areas of environmental emergency.

Part 3 of Article 328 of the Criminal Code provides for liability for the pollution, littering or depletion of surface or groundwater, glaciers, sources of drinking water supply, or other alteration of their natural properties, which has resulted in particularly large-scale damage to the environment, the death of a person, or mass illness among people.

The aforementioned particularly aggravating circumstances were considered 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 328 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 328 of the Criminal Code is classified as a crime of medium gravity.

The act provided for in Part 3 of Article 328 of the Criminal Code is classified as a serious crime.

Commentary of 2021 to 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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