Commentary on Article 330. Pollution of the Marine Environment of the Criminal Code of the Republic of Kazakhstan

1. Pollution of the marine environment 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 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.

2. The same act, if it has caused 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 term 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 crime lies in undermining environmental security, creating a threat of harm to the living resources of the sea, causing harm to human health or life, resulting in mass illness among people, and causing damage to the animal and plant life, fish stocks, the environment, etc.

The object of the crime under consideration is environmental security. Human health and life constitute additional objects of the crime.

The subject matter of the crime is the marine environment, that is, internal marine waters, territorial waters, the high seas, and the living resources of the sea.

Internal marine waters are considered to be waters located on the landward side of the baselines from which the breadth of the territorial sea of the Republic of Kazakhstan is measured.

According to subparagraph 9) of Article 2 of the Law of the Republic of Kazakhstan dated January 16, 2013, “On the State Border of the Republic of Kazakhstan,” the internal waters of the Republic of Kazakhstan constitute an integral part of the territory of the Republic of Kazakhstan and include the following waters: waters located on the landward side of the baselines in the Caspian Sea; waters of bays, inlets, gulfs and estuaries bounded by a straight line drawn from shore to shore at the location of the mean long-term water level; waters of the ports of the Republic of Kazakhstan bounded by a line passing through the seawardmost points of the permanent hydraulic engineering and other structures of the ports; waters of the Aral Sea located from the State Border towards the coast of the Republic of Kazakhstan up to the Aklak hydraulic structure in the Berg Strait (within the Kazakhstani part of the Greater Aral Sea); and waters of border rivers, lakes and other bodies of water whose shores belong to the Republic of Kazakhstan.

The territorial waters (sea) of the Republic of Kazakhstan constitute a maritime belt twelve nautical miles wide, measured in accordance with the norms of international law and the laws of the Republic of Kazakhstan from the baselines in the Caspian Sea, over which the sovereignty of the Republic of Kazakhstan extends, and whose outer limit constitutes the State Border (subparagraph 5) of Article 2 of the Law “On the State Border of the Republic of Kazakhstan”).

The objective element of the crime consists in pollution of the marine environment as a result of a violation of environmental requirements, provided that such act has caused major damage to the environment or harm to human health.

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

Water bodies are protected against all types of pollution, including diffuse pollution (pollution through the surface of the land and the air).

General water use in water bodies is carried out in accordance with the procedure established by the water legislation of the Republic of Kazakhstan.

Individuals and legal entities are obliged to comply with the rules of general water use established by local representative bodies of regions (cities of republican significance and the capital).

The placement of enterprises and other structures affecting the condition of water bodies shall be carried out in compliance with the conditions and rules for environmental protection, protection of subsoil resources, sanitary and epidemiological safety, industrial safety, reproduction and rational use of water resources, as well as taking into account the environmental consequences of the activities of the said facilities.

The construction, reconstruction, operation, conservation and liquidation of enterprises and other structures affecting the condition of water bodies shall be carried out subject to the availability of positive conclusions from the authorized state bodies in the field of environmental protection, use and protection of the water fund, as well as the state body of the sanitary and epidemiological service (with regard to facilities classified as being of high epidemiological significance).

Environmental requirements may be violated through active actions or through omission. Active actions include the unauthorized discharge of pollutants from vehicles or artificial structures erected at sea, the burial of unspent nuclear fuel from watercraft, the discharge of petroleum products into the marine environment, etc. Omission may be expressed in the failure of officials to take measures to prevent the discharge of pollutants, etc.

The environmental crime under consideration is classified as a material-composition offence by its legal structure. The crime is deemed completed from the moment harmful consequences occur, expressed in the form of 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 examined in the commentary to Part 1 of Article 324 of the Criminal Code.

The subjective element of the environmental crime is characterized by indirect intent, the concept of which is examined in the commentary to Article 324 of the Criminal Code.

The subject of the crime is a physically sane individual who has reached the age of sixteen and upon whom, in accordance with the procedure established by law, the obligation to comply with certain environmental requirements has been imposed when burying or discharging into the sea substances and materials from the sources listed in Article 330 of the Criminal Code.

Part 2 of Article 330 of the Criminal Code provides for enhanced criminal liability for pollution of the marine environment as a result of a violation of environmental requirements that has caused particularly large-scale damage to the environment, the death of a person, or mass illness among people. The above-mentioned aggravating circumstances are examined in the analysis of the environmental crime provided for in Part 2 of Article 324 of the Criminal Code.

Liability under Part 2 of Article 330 of the Criminal Code arises provided that the specified harmful consequences are causally connected with the unlawful pollution of the marine environment.

The act provided for in Part 1 of Article 330 of the Criminal Code is classified as a crime of medium gravity.

The act provided for in Part 2 of Article 330 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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