Commentary on Article 341. Destruction or Damage of Forests of the Criminal Code of the Republic of Kazakhstan
1. Destruction or damage to trees and shrubs, both included in and not included in the forest fund, with the exception of trees and shrubs located on household plots, summer cottage plots and garden plots, as a result of careless handling of fire or another source of increased danger, if this act causes major damage, —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with confiscation of property.
2. Intentional destruction or damage to trees and shrubs, both included in and not included in the forest fund, with the exception of trees and shrubs located on household plots, summer cottage plots and garden plots, committed by arson or by another generally dangerous method, or as a result of pollution with harmful substances, waste, emissions or refuse, —
shall be punishable by imprisonment for a term of three to eight years, with confiscation of property.
The public danger of the crime lies in undermining environmental security, causing harm to the environment through the destruction or damage of forests and other vegetation by arson or another generally dangerous method, as well as causing harm to forestry as a production sector. In addition, these acts destroy the health-improving functions of forests.
The object of the crime is environmental security ensured through the protection, rational use and reproduction of forests and other forest plantations, both included in and not included in the forest fund of the Republic of Kazakhstan.
From the objective side, the environmental crime under consideration is expressed in the destruction or damage of trees and shrubs, both included in and not included in the forest fund, with the exception of trees and shrubs located on household plots, summer cottage plots and garden plots, as a result of careless handling of fire or another source of increased danger, if this act causes major damage.
Destruction should be understood as the complete eradication (cessation of existence) of a forest, that is, the complete burning of a forest, or bringing it into such a condition in which it loses its economic and commercial value and can no longer be used for its intended purpose.
Damage is understood as the burning of a significant part of a forest or the substantial loss by a forest of its functions, as well as the cessation of growth of trees and shrubs as a result of cuts, stripping of bark, etc., that is, causing harm to a forest that substantially reduces its economic and commercial value, whereby the latter cannot be suitable for use for its intended purpose without restoration.
Careless handling of fire is understood as the failure to take fire safety measures when the perpetrator is in a forest or when carrying out work in a forest or near it. A fire may arise from lighting a campfire and leaving it unextinguished, or from a discarded cigarette butt. Fires frequently occur when burning grass, using machinery and equipment within the territory of the forest fund of the Republic of Kazakhstan that produce sparks during operation, leaving machinery switched on, which leads to overheating and ignition, etc.
Other sources of increased danger may include vehicles, mechanisms, electrical equipment, explosive substances, flammable liquids, etc.
Fire safety regulations prohibit the use of vehicles with a faulty fuel supply system or without a spark arrester on the exhaust pipe.
The environmental crime provided for in Part 1 of Article 341 of the Criminal Code is recognised, by its legal structure, as a crime with a material composition where major damage is caused and shall be considered a completed crime only upon the infliction of major damage. The concept of “major damage” is examined in the analysis of the crime provided for in subparagraph 1) of Part 4 of Article 335 of the Criminal Code.
From the subjective side, the crime is characterised exclusively by the negligent form of guilt, in the form of criminal self-confidence or criminal negligence (Parts 2–3 of Article 21 of the Criminal Code).
The subject of the crime is a sane individual who has reached the age of 16.
Part 2 of Article 341 of the Criminal Code provides for liability for the intentional destruction or damage of trees and shrubs, both included in and not included in the forest fund, with the exception of trees and shrubs located on household plots, summer cottage plots and garden plots, committed by arson or another generally dangerous method, or as a result of pollution with harmful substances, waste, emissions or refuse.
Intentional arson of a forest is a serious environmental crime; therefore, the legislator has provided for a more severe punishment for this act, since a forest fire causes enormous losses not only to trees and shrubs, but also to animals, birds, populated areas and, ultimately, society as a whole.
Another generally dangerous method should be understood as actions that result in the destruction or damage of a forest by means of an explosion, flooding, etc.
Pollution of forests with harmful substances, waste, emissions or refuse may occur in the course of economic and other activities through the emission or discharge of harmful substances, as well as the placement of production, municipal and household, and other waste and refuse (the creation of dumps within forest territories), and by other methods.
The law does not disclose in the text of this Article the nature of harmful substances (chemical, radioactive, etc.) and waste, using the definition “harmful” rather than “dangerous”. Nevertheless, by way of interpretation, it may be concluded that, in any case, these include all substances and materials containing their compounds and products specified in Article 325 of the Criminal Code, as well as those substances, waste and refuse that do not fall within the category of hazardous substances but have a harmful effect on the condition of forests, for example, causing diseases or the drying out of trees, shrubs and other forest vegetation.
Waste includes types of raw materials unsuitable for the production of goods or having lost their consumer properties, unusable residues thereof, products, goods or substances and energy in solid, liquid, pasty, gaseous and vapour forms arising during technological processes and capable of causing poisoning or other harm to living organisms or their habitat. Hazardous waste is divided into toxic (poisonous), radioactive and other types.
According to the Environmental Code of the Republic of Kazakhstan, waste containing harmful substances that possess one or more hazardous properties (toxicity, explosiveness, radioactivity, fire hazard, etc.) may pose a direct or potential danger to the environment and human health, either independently or upon coming into contact with other substances.
Hazardous chemical substances are substances possessing properties that may have a direct or potential harmful effect on human health and the environment.
The act provided for in Part 2 of Article 341 of the Criminal Code should be considered a completed crime from the moment any of the acts specified in this Part is committed; that is, by its legal structure, it belongs to the category of crimes with a formal composition.
From the subjective side, the crime under consideration is characterised by an intentional form of guilt (direct or indirect intent). The motives of the crime are irrelevant for the qualification of this act but are taken into account by the court when imposing an individualised punishment on the perpetrator.
The subject of the crime provided for in Part 2 of Article 341 of the Criminal Code is a sane individual who has reached the age of 16.
The act provided for in Part 1 of Article 341 of the Criminal Code belongs to the category of minor offences.
The act provided for in Part 2 of Article 341 of the Criminal Code belongs to the category of 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 National Academy of Natural Sciences of Kazakhstan, 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 the 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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