Commentary on Article 329. Air Pollution of the Criminal Code of the Republic of Kazakhstan

1. Pollution of atmospheric air or other alteration of its natural properties as a result of a violation of environmental requirements, if this act has caused major damage to the environment or harm to human health, —

shall be punishable by a fine in the amount of up to three thousand monthly calculation indices, or correctional 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. The same act, if it has caused particularly large-scale damage to the environment, or the death of a person, or a mass outbreak of disease 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 air pollution lies in undermining environmental safety, polluting or otherwise altering the natural properties of the air, causing harm to human life or health, resulting in mass outbreaks of disease among people, an increase in various types of illnesses, and other consequences.

The object of the crime under consideration is environmental safety, regulated by the rules governing the emission of pollutants into the atmosphere and the rules for the operation of relevant installations, structures and other facilities, which ensure the protection and rational use of the environment.

The additional object is human health (Part 1 of Article 329) or human life (Part 2 of Article 329).

The subject matter of the crime is atmospheric air.

According to paragraph 1 of Article 198 of the Environmental Code, atmospheric air is a vital component of the natural environment, representing a mixture of atmospheric gases located outside residential, industrial and other premises.

In accordance with the environmental legislation of the Republic of Kazakhstan, atmospheric air is subject to protection against pollution (paragraph 2 of Article 198 of the Environmental Code).

The objective aspect of the crime is expressed in the pollution of atmospheric air or other alteration of its natural properties as a result of a violation of environmental requirements, provided that this act has caused major damage to the environment or harm to human health.

Atmospheric air pollution means the presence of pollutants in atmospheric air at concentrations, or physical impacts at levels, exceeding the environmental quality standards established by the state.

Sources of atmospheric air pollution are recognised as the introduction of pollutants and physical impacts into atmospheric air as a result of anthropogenic and natural factors, as well as the formation of pollutants in atmospheric air as a result of chemical, physical and biological processes occurring therein (paragraph 3 of Article 198 of the Environmental Code).

The emission of pollutants into atmospheric air means the release of pollutants into atmospheric air from emission sources. Emission sources include structures, technical devices, equipment, installations, sites, vehicles or other mobile means, during the operation of which pollutants are released into atmospheric air (subparagraphs 1 and 2 of Article 199 of the Environmental Code).

Environmental quality standards for atmospheric air, standards for permissible anthropogenic impact on atmospheric air, permissible emission standards and technological emission standards, as well as monitoring of compliance with permissible emission standards, are provided for in Articles 200, 201, 202 and 203 of the Environmental Code.

For the purpose of preventing harmful anthropogenic impacts on atmospheric air, the environmental legislation of the Republic of Kazakhstan establishes mandatory environmental requirements for the protection of atmospheric air that must be observed in the course of human activities (paragraph 1 of Article 206 of the Environmental Code).

The emission into atmospheric air of substances whose degree of danger to human life and (or) health and the environment has not been scientifically established is prohibited (paragraph 2 of Article 206 of the Environmental Code).

Local representative bodies of regions, cities of republican significance and the capital are entitled, by their regulatory legal acts and in agreement with the authorised environmental protection body, to provide for the introduction of special environmental requirements in the field of atmospheric air protection within the territories of individual administrative-territorial units in cases where the established environmental quality standards for atmospheric air are not complied with in such territories (paragraph 3 of Article 206 of the Environmental Code).

Environmental requirements for the protection of atmospheric air during the operation of gas purification installations, during the production and operation of vehicles and other mobile means, during the storage, neutralisation, disposal and incineration of waste, in the event of adverse meteorological conditions, as well as in the event of accidents, are provided for in Articles 207, 208, 209, 210 and 211 of the Environmental Code of the Republic of Kazakhstan.

Other alteration of the natural properties of atmospheric air means deterioration of the balance of the qualitative and quantitative indicators of the atmosphere, its depletion, for example, as a result of thermal or other physical impact exceeding the permissible standards.

The crime under consideration, by its legal structure, is classified as a material offence. It is deemed completed from the moment harmful consequences occur, expressed in the form of causing major damage to the environment or harm to human health.

The concepts of “major damage to the environment” and “causing harm to human health” are set out in the commentary to Part 1 of Article 324 of the Criminal Code.

The subjective aspect of the crime provided for in Article 329 of the Criminal Code is expressed in the form of indirect intent. The person is aware that they are violating environmental requirements by polluting atmospheric air or otherwise altering its natural properties, foresees the possibility of adverse consequences for human health or the possibility of causing major damage to the environment, and consciously allows such consequences to occur or is indifferent to their occurrence.

The subject of the crime is a sane individual who has reached the age of 16 and upon whom regulatory legal acts impose duties to ensure compliance with environmental requirements in the form of monitoring emissions of pollutants into atmospheric air.

Part 2 of Article 329 of the Criminal Code provides for liability for pollution of atmospheric air or other alteration of its natural properties as a result of a violation of environmental requirements, which has caused particularly large-scale damage to the environment, or the death of a person, or a mass outbreak of disease among people.

The specified aggravating circumstances are examined in the analysis of the crime provided for in Part 2 of Article 324 of the Criminal Code.

The act provided for in Part 1 of Article 329 of the Criminal Code is classified as a crime of medium gravity.

The act provided for in Part 2 of Article 329 of the Criminal Code is classified as a serious crime.

Commentary on the Criminal Code of the Republic of Kazakhstan, 2021, 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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