Commentary on Article 338. Violation of Rules for the Protection of Wildlife of the Criminal Code of the Republic of Kazakhstan
1. Violation of wildlife protection rules in the course of production processes or the operation of vehicles, the use of plant protection products, mineral fertilizers or other preparations, resulting in the mass destruction or death of wildlife, as well as violation of the procedure for the use or protection of hunting grounds and fishery reservoirs, causing major damage, —
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 three years.
The public danger of violating wildlife protection rules lies in undermining environmental security and causing the mass destruction or death of wildlife.
The object of the crime under consideration is environmental security, ensured through the protection and rational use of wildlife and the maintenance of its necessary population levels.
From the objective side, the crime is expressed in the violation of wildlife protection rules in the course of production processes or the operation of vehicles, the use of plant protection products, mineral fertilizers or other preparations, resulting in the mass destruction or death of wildlife, as well as in the violation of the procedure for the use or protection of hunting grounds and fishery reservoirs, causing major damage.
Violation of wildlife protection rules resulting in the mass destruction or death of wildlife may be committed:
in the course of production processes;
during the operation of vehicles;
when using plant protection products, mineral fertilizers or other preparations;
by violating the procedure for the use of hunting grounds and fishery reservoirs;
by violating the protection regime of hunting grounds and fishery reservoirs.
Mass destruction or death of wildlife means the destruction of a large number (flocks, herds, etc.) of wild animals, birds, fish and other aquatic animals within a particular territory that are living in a state of natural freedom.
The commissioning of facilities and the use of technologies without providing them with means of protecting animals and their habitats are prohibited.
When locating, designing and constructing populated areas, enterprises, structures and other facilities; carrying out production processes and operating vehicles; improving existing and introducing new technological processes; bringing unused coastal, marshy and shrub-covered territories into economic circulation; carrying out land reclamation; using forest resources and water bodies; conducting geological exploration works; extracting mineral resources; determining places for grazing and driving agricultural animals; developing tourist routes and organising places for mass public recreation, measures must be provided for and implemented to preserve the habitats and breeding conditions of wildlife species, animal migration routes and areas of concentration, as well as to ensure the inviolability of areas of particular value as habitats for wild animals.
Individuals and legal entities, when carrying out any activity that affects or may affect the condition of wildlife, are obliged to ensure the protection of animal habitats, breeding conditions and migration routes, as well as to implement measures to prevent the death of animals during production processes, including during the storage, transportation and use of preparations, chemical substances and compounds dangerous to animals, the accumulation and disposal of waste, the performance of agricultural, forestry, logging and other work, as well as during the operation of electrical networks and vehicles.
Environmental requirements applicable to the regulation of animal populations and the management of hunting and fishing activities are provided for in Articles 254 and 255 of the Environmental Code.
During the transportation, storage and use of plant protection products, mineral fertilizers and other preparations used in economic and other activities, as well as during the development of new preparations, individuals and legal entities are obliged to comply with the rules governing the transportation, storage and use of the specified preparations and to implement measures to prevent diseases and the death of animals.
In the interests of public health and safety, the prevention of diseases among agricultural and other domestic animals, and the prevention of harm to the environment, economic and other activities, measures aimed at regulating the populations of certain species of wild animals are carried out. These measures must be implemented using methods that ensure the preservation of wild animal habitats and do not allow harm to be caused to them.
A mandatory condition for criminal liability, as follows from the disposition of Article 338 of the Criminal Code, is the infliction of major damage. The concept of major damage was examined in the analysis of the environmental crime provided for in subparagraph 1) of paragraph 4 of Article 335 of the Criminal Code.
The crime provided for in Article 338 of the Criminal Code is classified by its structure as a material offence. This crime shall be considered completed only upon the infliction of major damage.
The subjective side of the crime under consideration is characterised by indirect intent (see the commentary on the crime provided for in Part 1 of Article 324 of the Criminal Code).
The subject of the crime may be any sane individual who has reached the age of sixteen.
The act provided for in Article 338 of the Criminal Code is classified as a crime of medium gravity.
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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