Commentary on Article 335. Illegal Extraction of Fish Resources, Other Aquatic Animals or Plants of the Criminal Code of the Republic of Kazakhstan

1. Illegal extraction of fish resources, other aquatic animals or plants, if this act is committed:

1) causing significant damage;

2) using explosives or chemical substances, electric current, or other methods of mass extermination of fish resources and other aquatic animals and plants, —

shall be punishable by a fine in an 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 confiscation of property and deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.

2. The same act committed repeatedly —

shall be punishable by a fine in an amount of up to four thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period, with confiscation of property and deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.

3. The acts provided for in Parts One or Two of this Article, committed:

1) against rare and endangered species of animals, as well as animals whose use is prohibited, including sturgeon species of fish;

2) at spawning grounds, in breeding areas of other aquatic animals or on migration routes leading to them;

3) by a person using their official position;

4) by a group of persons or a group of persons acting upon prior conspiracy;

5) using a self-propelled floating transport vehicle;

6) in specially protected natural areas and in areas with an environmental emergency situation, —

shall be punishable by a fine in an amount of up to six thousand monthly calculation indices, or correctional labour in the same amount, or restriction of liberty for a period of three to six years, or imprisonment for the same period, with confiscation of property and deprivation of the right to hold certain positions or engage in certain activities for a period of up to seven years.

4. The acts provided for in Parts One, Two or Three of this Article, committed:

1) causing large-scale damage;

2) by a criminal group;

3) by a person deprived of the right to engage in activities involving the extraction of fish resources, other aquatic animals or plants, —

shall be punishable by imprisonment for a period of six to ten years, with confiscation of property and deprivation of the right to hold certain positions or engage in certain activities for a period of up to ten years.

The public danger of illegal extraction of fish resources, other aquatic animals or plants lies in undermining environmental security and causing harm to wildlife, flora and the environment as a whole.

According to paragraph 1 of Article 34 of the Law of the Republic of Kazakhstan dated 9 July 2004 “On the Protection, Reproduction and Use of Wildlife”, fishing is divided into the following types:

• commercial fishing;
• recreational (sport) fishing;
• scientific research fishing;
• control fishing;
• reclamation fishing;
• fishing for reproduction purposes.

Commercial fishing is a comprehensive process ensuring the removal of fish resources and other aquatic animals from their natural habitat using fishing gear that makes it possible to catch large quantities of fish resources and other aquatic animals simultaneously and (or) covers or blocks off part of a water body (commercial fishing gear) (paragraph 2 of Article 34 of the Law).

Commercial fishing is carried out for the purposes of entrepreneurial activity.

Recreational (sport) fishing is the catching of fish resources and other aquatic animals for the purpose of satisfying sporting and aesthetic needs, holding sporting competitions, as well as for personal consumption of the caught products, using fishing gear that allows only individual catching (non-commercial fishing gear) (paragraph 3 of Article 34 of the Law).

Scientific research fishing is the catching of fish resources and other aquatic animals for the purpose of conducting scientific research in the field of protection, reproduction and use of wildlife (paragraph 4 of Article 34 of the Law).

Control fishing is the catching of fish resources and other aquatic animals for the purpose of monitoring the condition of ichthyofauna, determining the effectiveness of reproduction of fish resources and other aquatic animals, the productivity of juvenile fish, and the fish productivity of water bodies (paragraph 5 of Article 34 of the Law).

Reclamation fishing is the catching of fish resources and other aquatic animals, including total harvesting, catching low-value fish species, and fishing in water bodies and (or) areas at risk of fish kills, aimed at increasing the fish productivity of water bodies, preserving fish resources and other aquatic animals, and improving their habitat and breeding conditions (paragraph 6 of Article 34 of the Law).

Total harvesting is the removal of the entire commercial stock of fish resources and other aquatic animals from a water body, or the removal of the commercial stock of individual species or ecological groups of fish. Total harvesting may be used as reclamation fishing and for scientific research purposes (paragraph 6 of Article 34 of the Law).

Fishing for reproduction purposes is the catching of fish resources and other aquatic animals for the purposes of their reproduction (paragraph 7 of Article 34 of the Law).

The right to commercial fishing is granted to individuals and legal entities provided they have:

• a permit for the use of wildlife;
• an agreement with the local executive body on conducting fisheries activities.

The right to scientific research and reclamation fishing, as well as fishing for reproduction purposes, is granted to individuals and legal entities provided they have a permit for the use of wildlife, while recreational (sport) fishing requires a permit for the use of wildlife and a fishing permit voucher.

Control fishing is carried out by the territorial subdivision of the department of the authorized body without a permit for the use of wildlife, in accordance with the procedure established by the fishing rules.

The Fishing Rules were approved by Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated 27 February 2015. The Fishing Rules were developed in accordance with subparagraph 57) of paragraph 1 of Article 9 of the Law of the Republic of Kazakhstan dated 9 July 2004 “On the Protection, Reproduction and Use of Wildlife” and regulate the procedure for organizing and conducting commercial and recreational (sport) fishing, scientific research, control and reclamation fishing, as well as fishing for reproduction purposes, by individuals and legal entities in fisheries water bodies and (or) areas.

These Rules apply to all fisheries water bodies and (or) areas of the Republic of Kazakhstan (rivers and canals equated to them, lakes, wetlands, reservoirs, ponds and other inland water bodies, territorial waters), as well as marine waters that are used or may be used for catching, breeding and raising fish resources and other aquatic animals, or are important for the reproduction of their stocks, with the exception of water bodies used for artificial breeding of fish and other aquatic animals.

The object of the crime is environmental security ensured through the protection, use and reproduction of fish, other aquatic animals or commercial plants, as well as through maintaining their ecologically necessary population levels.

The subject matter of this crime comprises fish resources, other aquatic animals (seals, sea otters or other marine mammals) in a state of natural freedom, as well as marine plants that are intended for commercial harvesting in a particular place and at a particular time, as established by departmental regulatory legal acts.

According to subparagraph 24) of Article 1 of the Law of the Republic of Kazakhstan “On the Protection, Reproduction and Use of Wildlife”, fish resources and other aquatic animals constitute the totality of all animals inhabiting the aquatic environment.

The places where illegal extraction of fish resources, other aquatic animals or plants takes place are fisheries water bodies and (or) areas, meaning water bodies or parts thereof (rivers and canals equated to them, lakes, wetlands, reservoirs, ponds and other inland water bodies, territorial waters), as well as marine waters that are used or may be used for catching, breeding and raising fish resources and other aquatic animals, or are important for the reproduction of their stocks. Fishing in water bodies forming part of specially protected natural areas having the status of a legal entity is regulated by the Laws of the Republic of Kazakhstan “On Specially Protected Natural Areas”.

In accordance with paragraph 5 of Article 39, Chapter 7 of the Law of the Republic of Kazakhstan “On the Protection, Reproduction and Use of Wildlife”, fishing in fisheries water bodies and (or) areas is prohibited.

Fish resources and other aquatic animals constitute the totality of all animals inhabiting the aquatic environment (subparagraph 24) of Article 1 of the Law).

Criminal liability for the illegal extraction of aquatic fur-bearing animals (river beaver, otter, muskrat, nutria) arises not under Article 335 of the Criminal Code, but under Article 337, since these animals are classified as fur-bearing animals whose hunting is prohibited.

Marine plants are species of plants intended for mass harvesting, primarily algae, which are used as food products, animal feed, medicinal products and their components.

From the objective side, the criminal offence provided for in Part 1 of Article 335 of the Criminal Code consists of the illegal extraction of fish resources, other aquatic animals or plants, provided that such extraction:

• causes significant damage;
• is carried out using explosives or chemical substances, electric current, or other methods of mass extermination of fish resources and other aquatic animals and plants.

Illegal extraction of fish resources, other aquatic animals or plants should be understood as extraction carried out without the required authorization, during a prohibited period, in unauthorized locations or by prohibited methods.

The extraction of fish resources, other aquatic animals or plants shall be recognized as illegal if it is carried out using an expired permit or without the proper permit; by a person other than the one to whom the permit was issued; in a water body or area other than the one specified in the licence; using fishing gear not specified in the document; in quantities exceeding those indicated in the licence; during a prohibited period or in prohibited locations, and so forth.

For the purposes of Article 335 of the Criminal Code, extraction means the process of catching, killing, removing or otherwise taking aquatic animals and plants from their natural environment, which ends with actual possession of the extracted item, regardless of the quantity extracted. Extraction is illegal in all cases where, in carrying it out, a person violates general prohibitions on extraction, fails to obtain a special permit (licence), or violates its terms governing the subject matter, quantity, location, time and methods of extraction, where obtaining such a permit is mandatory. The types of permits for the extraction of aquatic animals and plants are varied and depend both on the person carrying out the extraction and on its nature.

According to paragraph 5 of Article 39 of the aforementioned Law, fishing is prohibited:

• near dams, locks and bridges, in channels connecting lakes with one another and with the main river, in supply canals and drainage outlets of reclamation systems, and in front of river and canal mouths beyond the boundaries established by the fishing rules;
• using fishing gear whose use is not provided for by the fishing rules;
• in wintering pits during the winter period, at spawning grounds during spawning periods, and in other areas during periods and at locations established by the authorized body on the basis of biological justification issued by the relevant scientific organizations and subject to state environmental expert review;
• using floating craft that have not been registered and marked with registration numbers in accordance with the procedure established by law;
• using commercial fishing gear without tags indicating the name of the organization and the parameters of the fishing gear, in accordance with the permit for the use of wildlife;
• using stationary fishing gear for catching sturgeon in the sea and rivers;
• while under the influence of alcohol or narcotic substances or any other type of intoxication;
• by methods not permitted by the fishing rules, restrictions and prohibitions;
• repealed by the Law of the Republic of Kazakhstan dated 10 July 2012;
• using fishing gear occupying more than two-thirds of the width of a river or channel;
• by installing stationary fishing gear in a staggered pattern and placing fyke nets and traps within a radius of five hundred metres from river mouths and outlets of incoming channels;
• at a distance of less than five hundred metres from dams, locks and bridges when conducting commercial fishing; in areas of concentration and along migration routes of fish resources and other aquatic animals during their breeding period, at locations and during periods established by the authorized body on the basis of biological justification issued by the relevant scientific organizations and subject to state environmental expert review;
• using explosive devices, toxic chemicals and other chemical preparations, as well as firearms;
• using types of fishing gear and fishing methods not included in the list of permitted commercial and non-commercial types of fishing gear and methods, without authorization from the authorized body.

According to paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 18 June 2004 “On the Application by Courts of Legislation on Liability for Certain Environmental Criminal Offences”, illegal extraction of fish resources, other aquatic animals or plants shall be understood as extraction carried out without the proper permit, during a prohibited period, in unauthorized locations, by prohibited methods, or in violation of other requirements established by paragraph 5 of Article 39 of the Law “On the Protection, Reproduction and Use of Wildlife”.

Criminal liability under Article 335 of the Criminal Code for such actions arises if they are committed:

• causing significant damage;
• using explosives or chemical substances, electric current, or other methods of mass extermination of fish resources and other aquatic animals and plants.

Other cases of illegal extraction of aquatic animals or plants entail administrative liability.

The actions of persons guilty of illegally extracting fish and aquatic animals bred by enterprises and organizations in specially constructed or adapted water bodies, or taking possession of fish and aquatic animals caught by such organizations or kept in their breeding facilities, as well as taking possession of wild animals and birds kept in enclosures, shall be classified as theft of another person's property.

The question of whether significant damage has been caused in cases involving illegal aquatic harvesting must be resolved taking into account the quantity, value and ecological significance of the illegally caught fish and aquatic animals, as well as other damage caused to wildlife and flora. In doing so, consideration must be given not only to the quantity and value of the extracted items, but also to the environmental harm caused to wildlife and flora as a whole, in particular, the destruction of spawning grounds; the death of large numbers of juvenile fish; and the illegal engagement in aquatic harvesting, catching or destruction of animals and plants listed in the Red Book of the Republic of Kazakhstan.

The question of whether significant, large-scale or especially large-scale damage has been caused in cases involving illegal aquatic harvesting, hunting or illegal logging must be resolved taking into account the quantity, value and ecological significance of illegally caught fish and aquatic animals, hunted game, felled or damaged trees, as well as other damage caused to wildlife and flora.

In doing so, consideration must be given not only to the quantity and value of the extracted items, but also to the environmental harm caused to wildlife and flora as a whole, in particular, when destroying plants or animals whose use is prohibited; in cases of illegal hunting; destruction of spawning grounds; death of large numbers of juvenile fish; and illegal engagement in aquatic harvesting, catching or destruction of animals and plants listed in the Red Book of the Republic of Kazakhstan (paragraph 15 of the Regulatory Resolution of the Supreme Court).

Criminal offences provided for in Articles 335 and 337 of the Criminal Code shall be considered completed from the moment the tracking, pursuit, extraction or catching of fish resources, aquatic or other animals, or plants begins, regardless of whether fish, aquatic or other animals, or plants were actually obtained. In cases where causing significant or large-scale damage is a mandatory element of the criminal offence, the completed elements of the criminal offence may be established only when such damage has actually occurred (paragraph 16 of the Regulatory Resolution of the Supreme Court).

Explosive substances include dynamite, TNT, explosive packets and other devices intended to stun aquatic animals by noise, lure them out or drive them into a particular area.

If the illegal extraction of fish resources, other aquatic animals or plants was committed using firearms (except smooth-bore hunting firearms), ammunition or explosives that were illegally acquired, manufactured or stored, the actions of the perpetrator shall be classified under the cumulative application of Articles 337 and 287 of the Criminal Code, which provide for liability for an environmental criminal offence and for the illegal acquisition, transfer, sale, storage, transportation or carrying of firearms, ammunition, explosives and explosive devices.

The concept of chemical substances is provided in the commentary on the elements of the criminal offence stipulated in Part 1 of Article 325 of the Criminal Code.

The use of electric current means the use of electrical charges in the process of extracting aquatic animals or plants.

Other methods of mass extermination of fish resources and other aquatic animals and plants are methods of their extraction that result in the destruction of large numbers of the aforementioned objects. These include driving and spearing methods, the use of fine-mesh nets and other methods.

An accomplice may be recognized only as a person whose actions are causally and culpably connected with the commission of the crime. It follows that persons who did not facilitate the commission of the crime or who did not promise in advance to provide the perpetrators with any assistance cannot be considered accomplices.

When qualifying the actions of perpetrators on the grounds that illegal extraction of fish resources, other aquatic animals or plants was committed by a group of persons acting upon prior conspiracy, it is necessary to establish whether there was an agreement, expressed in any form, between two or more persons to extract fish resources, other aquatic animals or plants, and whether these persons reached an agreement before the commencement of actions directly aimed at the illegal extraction of fish resources, other aquatic animals or plants, that is, before at least one perpetrator began carrying out the objective elements of the offence. A person who had not entered into a prior conspiracy with the other participants in the extraction of fish resources, other aquatic animals or plants, but joined them and participated in the process of its commission by other persons, shall be held liable for the specific actions actually committed by that person as a co-perpetrator of the crime.

The liability of an organizer, instigator or accomplice arises under the relevant Article of the Criminal Code providing for liability for the specific crime, with reference to Article 28 of the Criminal Code, except in cases where they were simultaneously co-perpetrators of the crime.

Illegal extraction of fish resources, other aquatic animals or plants cannot be regarded as having been committed by a group of persons acting upon prior conspiracy where it was carried out jointly with a person who has not reached the age at which criminal liability arises for this type of crime, or with a person declared legally insane. In such cases, the person recognized as the subject of this crime, regardless of the form of participation, must be recognized as the perpetrator of the illegal extraction of fish resources, other aquatic animals or plants and, in addition, where grounds exist, their actions must be additionally classified as involving a minor in criminal activity. In other cases, involving persons who, to the knowledge of the perpetrator, suffer from a severe mental disorder, or persons who have not reached the age at which criminal liability arises, in the commission of a crime is recognized, in accordance with subparagraph 5) of Part 1 of Article 54 of the Criminal Code, as a circumstance aggravating criminal liability and punishment.

A conspiracy shall be recognized as prior in all cases where it is reached before the commencement of the crime, during preparation for it, or immediately before the attempt. The period of time between the conspiracy and the commencement of the extraction of fish resources, other aquatic animals or plants is of no decisive significance. The conspiracy may be oral, written, expressed through gestures, etc. If the actions directly aimed at extracting fish resources, other aquatic animals or plants have already been commenced by the perpetrator, the subsequent joining of another co-perpetrator does not constitute this qualifying element, since such persons cannot be considered to have agreed in advance to commit the crime jointly.

The criminal activities of several persons, each of whom began independently, but whose activities subsequently coincided by chance and became joint criminal activity, cannot be classified under this qualifying element. In such cases, it may be considered that illegal extraction of fish resources, other aquatic animals or plants was committed by a group of persons (without prior conspiracy), which is also provided for in subparagraph 4) of Part 3 of Article 335 of the Criminal Code.

Self-propelled floating transport vehicles are any structures, devices or constructions powered by an engine (catamarans, motorboats, motor launches, vessels, flying hydrocraft, etc.).

Self-propelled floating transport vehicles used to transport perpetrators to the location of illegal extraction of fish resources, other aquatic animals or plants cannot be recognized as instruments used to commit the crime and, consequently, do not entail classification of the criminal act under subparagraph 5) of Part 3 of Article 335 of the Criminal Code.

According to 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 land plot, water body 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.

Depending on the purposes of their establishment and the type of protection regime, the following types of specially protected natural areas of republican significance are distinguished:

• state nature parks;
• state national nature parks;
• state nature reserves;
• state zoological parks;
• state botanical gardens;
• state dendrological parks;
• state natural monuments;
• state nature reserves (sanctuaries);
• state protected zones.

Depending on the purposes of their establishment and the type of protection regime, the following types of specially protected natural areas of local significance are distinguished:

• state regional nature parks;
• state zoological parks;
• state botanical gardens;
• state dendrological parks;
• state natural monuments;
• state nature reserves (sanctuaries).

Other types of specially protected natural areas may also be provided for by legislative acts of the Republic of Kazakhstan.

The classification of specially protected natural areas as areas of republican significance is carried out by the Government of the Republic of Kazakhstan upon submission by the authorized body, while classification as areas of local significance is carried out by the local executive bodies of regions, cities of republican significance and the capital, in coordination with the authorized body (paragraphs 2, 3, 4 and 5 of Article 14 of the Law of the Republic of Kazakhstan “On Specially Protected Natural Areas”).

The list of specially protected natural areas of republican significance was approved by Resolution No. 593 of the Government of the Republic of Kazakhstan dated 26 September 2017, and includes 16 names of specially protected natural areas.

Environmental requirements applicable to specially protected natural areas are established in the Environmental Code.

The concept of an “environmental emergency situation” is provided in the commentary on Part 2 of Article 325 of the Criminal Code.

Part 4 of Article 335 of the Criminal Code establishes criminal liability for illegal extraction of fish resources, other aquatic animals or plants committed:

• causing large-scale damage;
• by a criminal group;
• by a person deprived of the right to engage in activities involving the extraction of fish resources, other aquatic animals or plants.

The amount of damage indicates the increased degree of public danger of this crime, since significant material damage is caused to the natural environment. The determination of large-scale damage by law enforcement authorities has qualifying significance and directly affects the application of one or another part of the criminal law provision to the perpetrator, falls within the scope of proof and is an essential condition for ensuring legality in the administration of justice in cases involving environmental crimes (criminal offences).

According to subparagraph 38) of Article 3 of the Criminal Code of the Republic of Kazakhstan, large-scale damage is defined as the monetary value of the costs necessary to restore the environment and the consumer properties of natural resources, in an amount exceeding one thousand monthly calculation indices.

A single continuing crime consisting of several episodes of illegal extraction of fish resources, other aquatic animals or plants committed with a single intent shall also be classified as illegal extraction causing large-scale damage if the total value of the damage exceeds one thousand times the monthly calculation index.

If the perpetrator's intent was directed at the illegal extraction of fish resources, other aquatic animals or plants causing large-scale damage, and this intent was not realized due to circumstances beyond the perpetrator's control, the act should be classified as an attempt to illegally extract fish resources, other aquatic animals or plants under Part 3 of Article 24 and subparagraph 1) of Part 4 of Article 335 of the Criminal Code (see also the commentary on Part 1 of Article 324 of the Criminal Code).

Subparagraph 2) of Part 4 of Article 335 of the Criminal Code provides for liability for the illegal extraction of fish resources, other aquatic animals or plants committed by a criminal group. The concept of a criminal group is provided in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code of the Republic of Kazakhstan.

By the Law of the Republic of Kazakhstan dated 27 December 2019 “On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Issues of Improving Criminal and Criminal Procedure Legislation and Strengthening the Protection of Individual Rights”, Part 4 of Article 335 of the Criminal Code was supplemented with a new qualifying element: “by a person deprived of the right to engage in activities involving the extraction of fish resources, other aquatic animals or plants”.

A fisheries entity is an individual or legal entity whose main area of activity is conducting fisheries activities. A fisherman is an employee of a fisheries entity who, in accordance with their employment duties, catches fish resources and other aquatic animals in assigned fisheries water bodies and (or) areas. A fisherman's certificate is a document of the prescribed form issued by a fisheries entity certifying an individual's right to perform the functions of a fisherman (subparagraphs 28), 30) and 31) of Article 1 of the Law “On the Protection, Reproduction and Use of Wildlife”).

A person deprived of the right to engage in activities involving the extraction of fish resources, other aquatic animals or plants is a person who, as a result of committing a crime, has been deprived of the right to engage in such activities, as well as deprived of a fisherman's certificate granting the right to perform the functions of a fisherman in extracting fish resources, other aquatic animals or plants.

Items and devices, tools used to illegally catch fish, as well as transport and floating vehicles used in the process, must be recognized as physical evidence and, as instruments of crime, in accordance with Article 118 of the Criminal Procedure Code, are subject to confiscation in favour of the state or transfer to the relevant institutions or designated persons, and, if unsuitable for use, must be destroyed.

The acts provided for in Parts 1 and 2 of Article 335 of the Criminal Code are classified as crimes of medium gravity.

The acts provided for in Parts 3 and 4 of Article 335 of the Criminal Code are classified as serious crimes.

**Commentary of 2021 on 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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