Commentary on Article 339 of the Criminal Code of the Republic of Kazakhstan. Illegal Handling of Rare and Endangered Species of Plants or Animals, as Well as Species Prohibited from Use, Their Parts or Derivatives
1. Illegal procurement, acquisition, storage, sale, import, export, dispatch, transportation or destruction of rare and endangered species of plants or animals, their parts or derivatives, including species whose handling is regulated by international treaties of the Republic of Kazakhstan, as well as plants or animals whose use is prohibited, their parts or derivatives, as well as the destruction of their habitats —
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 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.
1-1. Illegal procurement or destruction of saiga, as well as acquisition, storage, sale, import, export, dispatch or transportation of illegally procured saiga or its derivatives, including horns —
shall be punishable by restriction of liberty for a period of three to five years or imprisonment for the same period, with confiscation of property.
2. The acts provided for in Part One or Part 1-1 of this Article, committed:
1) repeatedly;
2) by a group of persons or a group of persons acting upon prior conspiracy;
3) in specially protected natural areas;
4) by a person using their official position;
5) causing major damage, —
shall be punishable by a fine in an amount of three thousand to seven thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of three to seven 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, 1-1 or Two of this Article, committed:
1) by a criminal group;
2) causing particularly large-scale damage, —
shall be punishable by imprisonment for a period of seven to twelve 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 five years.
Rare and endangered animal species are entered into the Red Book of the Republic of Kazakhstan in accordance with the Law of the Republic of Kazakhstan “On Specially Protected Natural Areas”.
The protection of these animals is carried out by the state, and the removal of such animals, as well as their parts or derivatives, is permitted in exceptional cases by decision of the Government of the Republic of Kazakhstan for the following purposes:
breeding under specially created conditions for scientific, reproductive and commercial purposes, as well as for subsequent release into their natural habitat;
development of national types of hunting;
scientific research;
selection and breeding.
According to Article 32-1 of the Law of the Republic of Kazakhstan “On Specially Protected Natural Areas”, the Red Book of the Republic of Kazakhstan is an illustrated publication containing lists of rare and endangered species of plants and animals, as well as a body of information on the status of rare and endangered plant and animal species within the territory of the Republic of Kazakhstan and the necessary measures for their study, protection, reproduction and sustainable use. The Red Book of the Republic of Kazakhstan is also an integral part of the State Cadastre of Flora and Fauna.
In accordance with the Rules for Maintaining the Red Book of the Republic of Kazakhstan, approved by Resolution No. 734 of the Government of the Republic of Kazakhstan dated June 2, 2012, rare and endangered species (subspecies, populations) of plants (higher and lower) and animals (vertebrates and invertebrates) that inhabit, in a state of natural freedom, permanently or temporarily, the land, water, atmosphere and soil within the territory of the Republic of Kazakhstan, as well as on the continental shelf and in the exclusive economic zone of the Republic of Kazakhstan, are entered into the Red Book in accordance with the procedure established by these Rules.
Species (subspecies, populations) of plants and animals whose population numbers and conditions for sustainable existence have been restored to levels that eliminate threats to their reproduction and the preservation of their gene pool in a state of natural freedom shall be excluded from the Red Book in accordance with the procedure established by these Rules.
The Rules for Maintaining the Red Book of the Republic of Kazakhstan have been developed in accordance with Paragraph 4 of Article 7 of the Law of the Republic of Kazakhstan dated July 7, 2006, “On Specially Protected Natural Areas”, and determine the procedure for maintaining the Red Book of the Republic of Kazakhstan.
The Red Book consists of two volumes: Animals (Volume 1) and Plants (Volume 2). Each volume is published either as a single book or in several parts (by groups of sections or individual sections).
The public danger of this crime is determined by the fact that the perpetrator infringes upon rare or endangered species of animals and plants included in the Red Book of the Republic of Kazakhstan, the infringement of which is prohibited by law, thereby causing irreparable harm both to the environment and to the forestry sector as a whole.
The object of the crime is environmental security in the sphere of protection, reproduction and use of animals and plants included in the Red Book of the Republic of Kazakhstan.
The Red Book of the Republic of Kazakhstan warns all citizens that animals and plants are in danger, that they must be preserved and protected, and that their procurement by any means is prohibited.
The establishment of restrictions and prohibitions on the use of wildlife for the purpose of its conservation and reproduction, as well as the protection of rare and endangered animal species included in the Red Book of the Republic of Kazakhstan, is provided for in Articles 14–15 of the Law of the Republic of Kazakhstan “On the Protection, Reproduction and Use of Wildlife” and Articles 256 and 257 of the Environmental Code.
Animals classified as rare and endangered species are state property, while animals bred and kept in captivity or semi-free conditions may be owned by either the state or private individuals.
Individuals and legal entities have the right to use animals classified as rare and endangered species within the limits and in accordance with the procedure established by the legislation of the Republic of Kazakhstan (Paragraph 3 of Article 256 of the Environmental Code).
Actions that may result in the death, reduction in the population or disturbance of the habitat of rare and endangered animal species are prohibited (Paragraph 1 of Article 257 of the Environmental Code).
In cases of mass disease, the threat of death as a result of natural disasters or other causes, such animals shall be provided with assistance in accordance with the legislation of the Republic of Kazakhstan in the field of protection, reproduction and use of wildlife.
Individuals and legal entities that keep animals classified as rare and endangered species in captivity or semi-free conditions have the right to acquire, sell and exchange such animals within the territory of the Republic of Kazakhstan only with the permission of the authorized state body in the field of protection, reproduction and use of wildlife (Paragraph 6 of Article 252 of the Environmental Code of the Republic of Kazakhstan).
From the objective side, the actions of the perpetrator are expressed in the illegal procurement, acquisition, storage, sale, import, export, dispatch, transportation or destruction of rare and endangered species of plants or animals, their parts or derivatives, including species whose handling is regulated by international treaties of the Republic of Kazakhstan, as well as plants or animals whose use is prohibited, their parts or derivatives, and in the destruction of their habitats.
Illegal procurement shall mean the unauthorized harvesting or capture of animals and plants included in the Red Book of the Republic of Kazakhstan, where such actions are carried out without the appropriate authorization (licence).
Acquisition shall mean obtaining such animals or plants, whether for consideration or free of charge, in any form: purchase, appropriation, obtaining through deception or as a gift, in repayment of a debt, in exchange for other property, etc.
Storage shall mean any intentional actions associated with the possession by the perpetrator of the subject matter of this crime without the appropriate authorization.
Sale shall encompass any methods of their illegal distribution: sale, gifting, exchange (barter), repayment of a debt, lending, etc.
Import means the admission into the Republic of Kazakhstan, across the customs border of the Eurasian Economic Union, of plants or animals imported from foreign countries.
Export means the export across the customs border of the Eurasian Economic Union of plants or animals produced (cultivated) in the Republic of Kazakhstan.
Dispatch shall mean the sending of plants or animals by any type of postal service.
Transportation shall mean any intentional actions involving the actual movement of plants or animals within the territory of the Republic of Kazakhstan, regardless of the method of transportation or the place where the illegally transported plants or animals are stored.
Destruction of rare and endangered species of plants or animals shall mean the complete extermination of animals and plants, that is, bringing them to such a condition that they can no longer be used for their intended purpose.
A derivative is a product derived from an animal and a product manufactured from that animal or its derivative (Paragraph 33 of Article 1 of the Law of the Republic of Kazakhstan “On the Protection, Reproduction and Use of Wildlife”). Derivatives of plant and animal origin include blood, urine, musk, bile, various glands, antlers (velvet antlers), as well as souvenirs and household items made from animal parts, medicines and perfumes of animal and plant origin, and meat products obtained from wild animals. Parts of derivatives are portions of products manufactured from an animal and its derivative.
A number of alternative actions, such as the illegal procurement, acquisition, storage, sale, import, export, dispatch, transportation or destruction of rare and endangered species of plants or animals, their parts or derivatives, collectively constitute their illegal circulation.
Illegal handling of rare and endangered species of plants or animals, their parts or derivatives shall mean the commission of the above-mentioned actions in violation of the requirements of the laws of the Republic of Kazakhstan regulating the matters of their handling.
Illegal handling of certain rare and endangered species of plants or animals regulated by international treaties of the Republic of Kazakhstan must not contradict the laws of the Republic of Kazakhstan in the field of protection, reproduction and use of wildlife and plant life, including the environmental legislation of the Republic of Kazakhstan.
Destruction of plants or animals whose use is prohibited shall mean the complete extermination of plants or animals whose use is prohibited, that is, bringing them to such a condition that they can no longer be used for their intended purpose.
Destruction of the habitats of plants or animals whose use is prohibited, their parts or derivatives shall mean the complete extermination of animals and plants, their parts or derivatives, or their habitats, that is, bringing them to such a condition that they can no longer be used for their intended purpose, and causing their habitats to cease to exist entirely.
The crime under consideration shall be deemed completed from the moment at least one of the actions specified in the disposition of Part 1 of Article 339 of the Criminal Code has been committed; that is, by its structure, the offence is classified as a formal-composition crime.
From the subjective side, the crime is characterized by an intentional form of guilt (direct or indirect intent).
The subject of the crime may be a sane individual who has reached the age of 16.
Part 1-1 of Article 339 of the Criminal Code provides for liability for the illegal procurement or destruction of saiga, as well as the acquisition, storage, sale, import, export, dispatch or transportation of illegally procured saiga or its derivatives, including horns.
Saiga horns are thin, transparent, light-yellow keratin sheaths covering the conical bony projections of the frontal bones; between these bony cones and the keratin sheaths covering them lies a thin layer of loose connective tissue containing a network of blood vessels and stratified epithelium. At present, saiga hunting is prohibited everywhere. Due to the prohibition on saiga hunting, the harvesting of its horns is currently not carried out. Saiga horns are highly valued in China. The high value of saiga horns is due to the belief among Chinese people that medicinal preparations made from these horns have an exceptionally powerful effect on the human reproductive system. According to Chinese physicians, powders made from these horns are a powerful remedy for treating male impotence. Only male saigas have horns. In adult animals, the horns reach a length of 35 cm and a circumference of 14 cm at the base. They are lyre-shaped, gradually tapering towards the tips, and have a series of transverse raised rings along their main part, which gradually become smoother towards the middle of the shaft; the tip of the shaft is smooth. The horn substance of saiga horns is translucent, light yellow, very dense and has no clearly defined layering. The horns of male saigas begin to develop shortly after birth. Even in a three-month-old calf, the horns reach 2–3 cm; in a one-year-old animal, the horns reach 12–13 cm in length and bear three complete and three incomplete rings. In two-year-old males, the horns reach a length of 20 cm and already have five to six complete rings. By the age of four to five years, the animal's horns reach full development. In very old males, due to wear of the horn tips and the cessation of growth from the base, the horns become somewhat shorter and thicker; at the same time, in older animals, the horn substance becomes less transparent and less dense. Therefore, the highest-quality horns are obtained from adult males that are not yet old.
Part 2 of Article 339 of the Criminal Code provides for the following qualifying circumstances:
- Repeated commission (this circumstance was examined in the analysis of the elements of the crime provided for in Part 2 of Article 335 of the Criminal Code).
- Commission by a group of persons or a group of persons acting upon prior conspiracy (this circumstance was examined in the analysis of the elements of the crime provided for in Subparagraph 4 of Part 3 of Article 335 of the Criminal Code).
- Commission in specially protected natural areas (this circumstance was examined in the analysis of the elements of the crime provided for in Subparagraph 6 of Part 3 of Article 335 of the Criminal Code).
- Commission by a person using their official position (this circumstance was examined in the analysis of the elements of the crime provided for in Subparagraph 3 of Part 3 of Article 335 of the Criminal Code).
- Causing major damage (this circumstance was examined in the analysis of the elements of the crime provided for in Subparagraph 1 of Part 4 of Article 335 of the Criminal Code).
Part 3 of Article 339 of the Criminal Code provides for the following especially qualifying circumstances:
- Commission of the crime by a criminal group (this circumstance was examined in the analysis of the elements of the crime provided for in Subparagraph 1 of Part 6 of Article 335 of the Criminal Code).
- Causing particularly large-scale damage (this circumstance was examined in the analysis of the elements of the crime provided for in Subparagraph 2 of Part 6 of Article 335 of the Criminal Code).
The acts provided for in Parts 1 and 1-1 of Article 339 of the Criminal Code are classified as medium-gravity crimes.
The acts provided for in Parts 2 and 3 of Article 339 of the Criminal Code are classified as serious crimes.
Commentary on the Criminal Code of the Republic of Kazakhstan (2021), authored 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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