Commentary on Article 333. Violation of the Rules for the Protection and Use of Subsoil of the Criminal Code of the Republic of Kazakhstan
1. Violation of the rules for the protection and use of subsoil during the design and conduct of subsoil use operations, as well as general environmental requirements at all stages of subsoil use, if this act has caused or could have caused major damage to the environment or has caused 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, resulting in 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 violating the rules for the protection and use of subsoil lies in undermining environmental safety, causing harm to human life or health, resulting in mass illness among people, and the mass death of animal or plant life.
Relations arising in the process of development, use and protection of subsoil are regulated by the Code of the Republic of Kazakhstan dated December 27, 2017, “On Subsoil and Subsoil Use”. This Code defines the regime for subsoil use, the procedure for exercising state administration and regulation in the field of subsoil use, the specific features of the emergence, exercise and termination of rights to subsoil plots, the legal status of subsoil users and the conduct of relevant operations by them, as well as matters relating to the use of subsoil and the disposal of subsoil use rights, and other relations associated with the use of subsoil resources.
According to Article 10 of the aforementioned Code, subsoil is recognised as the part of the Earth's crust located below the soil layer, and in its absence — below the Earth's surface, the bottoms of water bodies and watercourses.
Mineral resources are recognised as natural mineral formations and organic substances containing useful components, whose chemical composition and physical properties make it possible to use them in the sphere of material production and consumption, either directly or after processing.
According to their economic significance and for the purpose of establishing the relevant conditions for subsoil use, mineral resources are divided into the following groups:
groundwater;
hydrocarbon mineral resources (hydrocarbons);
solid mineral resources (Article 12 of the aforementioned Code);
According to Article 22 of the aforementioned Code, the right to subsoil use is granted for the purpose of carrying out the following operations:
geological study of subsoil;
exploration of mineral resources;
extraction of mineral resources;
use of subsoil space;
construction.
Subsoil use operations, including forecasting, planning and design of production and other facilities, must comply with the requirements of the environmental legislation of the Republic of Kazakhstan.
The environmental condition of subsoil is ensured through the establishment of standards for maximum permissible emissions and the restriction or prohibition of subsoil use activities or certain types thereof.
In the cases provided for by the Code “On Subsoil and Subsoil Use”, subsoil use without a positive conclusion of the state environmental assessment or without approval by the authorised body in the field of environmental protection is prohibited (Article 52).
Subsoil use operations, including the design of production and other facilities, must comply with industrial safety requirements.
The subsoil user must ensure compliance with the rules and standards for the safe conduct of work provided for by the legislation of the Republic of Kazakhstan, as well as the implementation of measures to prevent and eliminate accidents and incidents, and to prevent occupational diseases (Article 53 of the aforementioned Code).
Subsoil use operations that pose a threat to human life and health or cause material damage to individuals and legal entities are prohibited.
Design documents are documents containing plans, methods, methodologies, technical specifications, technological indicators, the scope, timeframes and other parameters of work carried out for the purposes of subsoil use.
Design documents are developed separately for each subsoil plot for the period of its use provided for by the licence or contract. Design documents are developed taking into account environmental and industrial safety requirements. When carrying out subsoil use operations, subsoil users are obliged to comply with the environmental and industrial safety parameters stipulated in the design document (Article 23 of the aforementioned Code).
The object of the analysed crime is environmental safety, ensured through the rational use and protection of subsoil.
From the objective aspect, the crime under consideration is committed through violation of the rules for the protection and use of subsoil during the design and conduct of subsoil use operations, as well as general environmental requirements at all stages of subsoil use, if this act has caused or could have caused major damage to the environment or has caused harm to human health.
Violation of the rules for the protection and use of subsoil consists in failure to comply with technical designs and plans for the development of mining operations, and in violations of standards (norms and rules) regulating the conditions for protecting subsoil, atmospheric air, land, forests, water, as well as buildings and structures from the harmful effects of work associated with the use of subsoil, etc.
The concept of “design” is provided in the commentary to Part 1 of Article 324 of the Criminal Code.
The conduct of subsoil use operations determines the procedure for the acquisition of goods, works and services by subsoil users and their authorised persons, as provided for in the annual programme for the procurement of goods, works and services, as well as by subcontractors carrying out activities within the framework of the performance of contracts concluded with subsoil users and authorised persons of subsoil users.
The Unified Rules for the Rational and Comprehensive Use of Subsoil were approved by Order of the Minister of Energy of the Republic of Kazakhstan dated June 15, 2018, “On Approval of the Unified Rules for the Rational and Comprehensive Use of Subsoil”. The said Rules were developed in accordance with Paragraph 11 of Article 121 and Paragraph 3 of Article 184 of the Code of the Republic of Kazakhstan “On Subsoil and Subsoil Use”. The Rules establish requirements for the exploration and development of hydrocarbon deposits and the development of uranium deposits located within the territory of the Republic of Kazakhstan, and are intended for use by the competent authority of the Republic of Kazakhstan, the authorised body in the field of hydrocarbons, the authorised body in the field of uranium and their territorial bodies, subsoil users (operators and trust managers), and organisations. The requirements of these Rules do not apply to other types of mineral resources.
By its legal structure, the composition of this environmental crime is material-formal, that is, it is recognised as a material offence when major 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 the rules for the protection and use of subsoil or a violation of general environmental requirements, harmful consequences have not occurred, but such violation could have caused major damage to the environment or harm to human health (see the commentary to Part 1 of Article 324 of the Criminal Code).
The concepts of “major damage” to the environment and “harm to human health” are provided in the commentary to Part 1 of Article 324 of the Criminal Code.
The subjective aspect of the environmental crime is characterised by indirect intent. The perpetrator is aware that they are violating the rules for the protection and use of subsoil during the design and conduct of subsoil use operations, as well as general environmental requirements at all stages of subsoil use, foresees the inevitability or possibility of causing major damage or harm to human health, consciously allows the consequences to occur or is indifferent to their occurrence.
The subject of this environmental crime is a physically sane individual who violates the rules for the protection and use of subsoil during the design and conduct of subsoil use operations, as well as general environmental requirements at all stages of subsoil use, and who has attained the age of 16.
The environmental crime under consideration consists of two parts. Part 2 of Article 333 of the Criminal Code provides for criminal liability for violation of the rules for the protection and use of subsoil during the design and conduct of subsoil use operations, as well as general environmental requirements at all stages of subsoil use, resulting in particularly large damage to the environment, or the death of a person, or mass illness among people.
The aforementioned aggravating circumstances were examined 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 333 of the Criminal Code is classified as a crime of medium gravity.
The act provided for in Part 2 of Article 333 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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