Commentary on Article 342 of the Criminal Code of the Republic of Kazakhstan. Violation of the Regime of Specially Protected Natural Areas

1. Violation of the regime of specially protected natural areas, if it has resulted in the infliction of significant damage, —

shall be punishable by a fine in an amount of up to one hundred and twenty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one hundred and twenty hours, or arrest for a period of up to thirty days, 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, with confiscation of property.

2. Intentional damage to or destruction of objects of the State Nature Reserve Fund in specially protected natural areas, if it has resulted in the infliction of significant damage, —

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 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, with confiscation of property.

The public danger of violating the regime of specially protected natural areas (Part 1 constitutes a criminal misdemeanour, while Part 2 constitutes a crime) lies in undermining environmental security and causing significant damage to forest and wildlife resources within specially protected natural areas.

The object of the criminal offence is environmental security ensured by the regime governing specially protected natural areas.

Specially protected natural areas and the environmental objects located within them, which possess particular ecological, scientific and cultural value, constitute the national heritage of the Republic of Kazakhstan.

Pursuant to subparagraph 3) of Article 1 of the Law of the Republic of Kazakhstan “On Specially Protected Natural Areas”, a specially protected natural area means sections of land, water bodies 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.

Protection of specially protected natural areas means a set of measures that may be carried out within a specially protected natural area to identify and suppress violations of the legislation of the Republic of Kazakhstan in the field of specially protected natural areas, as well as to prevent, detect and eliminate fires (subparagraph 5) of Article 1 of the Law “On Specially Protected Natural Areas”).

From the objective standpoint, the criminal offence under consideration is expressed in a violation of the regime of specially protected natural areas resulting in the infliction of significant damage.

Violation of the regime of specially protected natural areas means the commission of actions expressly prohibited by the relevant legislative and subordinate regulatory legal acts, in particular, entering the territory of a nature reserve, conducting economic activities in protected zones of national parks, exploration and extraction of mineral resources, allocating gardening and summer cottage plots for construction within the territories of national parks, movement and parking of motor vehicles unrelated to the operation of the national park, etc.

Depending on the type of zoning, the following types of protection regimes are introduced throughout the entire specially protected natural area or within its specially designated zones and sections:

strict nature reserve regime, which provides for a prohibition on any economic activity, as well as any other activity that disrupts the natural state of natural complexes and objects of the State Nature Reserve Fund;

protected area regime, which provides for a complete prohibition or seasonal restriction of certain types of economic and other activities for a specified period or indefinitely;

regulated economic activity regime, which provides for the limited use of natural complexes, as well as the conduct by owners of land plots and land users of traditional types of economic activities using techniques and methods that do not have a harmful impact on natural complexes and objects of the State Nature Reserve Fund (Article 28 of the Law “On Specially Protected Natural Areas”).

An obligatory element of the criminal misdemeanour provided for in Part 1 of Article 342 of the Criminal Code is the infliction of significant damage as a result of violating the regime of specially protected natural areas.

The criminal misdemeanour provided for in Part 1 of Article 342 of the Criminal Code is classified as a material offence in terms of its legal structure where significant damage is caused, and shall be considered a completed criminal offence only upon the infliction of significant damage. The concept of “significant damage” is defined in the commentary to subparagraph 1) of Part 1 of Article 335 of the Criminal Code.

The subjective element of the criminal misdemeanour is characterised by an intentional form of guilt in the form of indirect intent. The person is aware that their actions violate the established regime within specially protected natural areas, does not desire the infliction of significant damage, but consciously allows significant damage to be caused to the flora and fauna within such areas or is indifferent to the occurrence of these consequences.

From the subjective standpoint, the criminal misdemeanour may also be committed with direct intent. Direct intent exists in cases where a person is aware that their actions violate the regime of specially protected natural areas, for example, by hunting an animal located within the territory of a nature reserve, etc., foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.

The motives and purposes are not specified in the disposition of the criminal offence as mandatory elements of the subjective side; however, they must necessarily be established in order to determine the punishment to be imposed on the guilty person.

The subject of the criminal offence may be a sane natural person who has attained the age of 16.

Part 2 of Article 342 of the Criminal Code provides for liability for intentional damage to or destruction of objects of the State Nature Reserve Fund within specially protected natural areas, if such actions have resulted in the infliction of significant damage.

Pursuant to subparagraph 14) of Article 1 of the Law of the Republic of Kazakhstan “On Specially Protected Natural Areas”, the State Nature Reserve Fund means a collection of environmental objects placed under state protection that possess particular ecological, scientific, historical and cultural, and recreational value as natural standards, unique and relict features, genetic reserves, and subjects of scientific research, public awareness, education, tourism and recreation.

Objects of the State Nature Reserve Fund include geological, hydrogeological, hydrological, zoological, botanical and landscape objects and their complexes, particularly valuable plantations of the State Forest Fund, wetlands, key ornithological areas, unique natural water bodies or sections thereof, rare and endangered species of plants and animals, and unique individual objects of the plant world that are of particular ecological, scientific, historical and cultural, and recreational significance (subparagraph 15) of Article 1 of the aforementioned Law).

A State Nature Reserve is a specially protected natural area having the status of a nature conservation and scientific institution, the purpose of whose activities is to preserve and study the natural course of natural processes and phenomena, objects of flora and fauna, individual species and communities of plants and animals, typical and unique ecological systems within its territory, and to restore them (Part 1 of Article 39 of the aforementioned Law). A strict nature reserve protection regime is established throughout the entire territory of a State Nature Reserve.

A State National Natural Park is a specially protected natural area having the status of a nature conservation and scientific institution, intended to preserve biological and landscape diversity and to use unique natural complexes and objects of the State Nature Reserve Fund, which possess particular ecological, scientific, historical and cultural, and recreational value, for nature conservation, environmental education, scientific, tourism and recreational purposes (Part 1 of Article 44 of the Law). The following zones are designated within the territories of State National Natural Parks:

strict nature reserve regime zone;

ecological stabilisation zone;

tourism and recreational activity zone;

limited economic activity zone.

The requirements governing the use of each of these zones are specified in Articles 45 and 48 of the Law “On Specially Protected Natural Areas”.

A State Natural Reserve is a specially protected natural area having the status of a nature conservation and scientific institution, comprising terrestrial and aquatic ecological systems intended for the protection, conservation, restoration and maintenance of biological diversity of natural complexes and associated natural and historical-cultural objects (Part 1 of Article 50 of the aforementioned Law). The territory of a State Natural Reserve is divided into zones with different protection and use regimes (Part 3 of Article 50, Articles 51, 52 and 53 of the aforementioned Law).

A State Zoological Park is a specially protected natural area having the status of a nature conservation and scientific organisation, intended for cultural and educational, scientific, training and nature conservation activities, the preservation of the gene pool and the breeding, under artificial environmental conditions, of typical, rare and endangered animal species (Part 1 of Article 54 of the aforementioned Law). State Zoological Parks are divided into zones with different protection and use regimes (Articles 55, 56 and 57 of the aforementioned Law).

A State Botanical Garden is a specially protected natural area having the status of a nature conservation and scientific organisation, intended to conduct research and scientific developments in the field of protection, conservation, reproduction and use of the plant world, including rare and endangered plant species (Article 58 of the Law). The zones designated therein and their protection and use regimes are specified in Articles 59, 60 and 61 of the aforementioned Law.

A State Dendrological Park is a specially protected natural area having the status of a nature conservation and scientific organisation, with protection regimes established for individual zones, intended for the protection, conservation, reproduction and use of tree and shrub species (Article 62 of the aforementioned Law). State Dendrological Parks are divided into the same zones as State Botanical Gardens, taking into account their purpose and the type of protection regime.

A State Natural Monument is a specially protected natural area comprising individual unique and irreplaceable natural complexes of ecological, scientific, cultural and aesthetic value, as well as objects of natural and artificial origin classified as objects of the State Nature Reserve Fund (Article 64 of the Law). The procedure for the establishment of State Natural Monuments and their protection regime are provided for in Articles 65 and 66 of the Law “On Specially Protected Natural Areas”.

A State Nature Reserve Area is a specially protected natural area with a protected area regime or a regulated economic activity regime, intended for the conservation and reproduction of one or more objects of the State Nature Reserve Fund (Article 57 of the aforementioned Law). The classification into types, specific features of establishment, protection regimes and use of State Nature Reserve Areas are provided for in Paragraph 2 of Article 67 and Articles 68 and 69 of the aforementioned Law.

A State Protected Reserve Zone is a specially protected natural area with differentiated protection regimes, intended for the preservation and restoration of objects of the State Nature Reserve Fund and biological diversity on land plots and water areas reserved for the establishment of State Nature Reserves, State National Natural Parks and State Natural Reserves (Article 70 of the Law). The procedure for the establishment, protection and use of State Protected Reserve Zones is provided for in Articles 71, 72 and 73 of the aforementioned Law.

Particularly valuable plantations of the State Forest Fund include particularly valuable forest areas, forest fruit plantations, and areas of tugai and subalpine forests. They may be included in specially protected natural areas or belong to the following categories of specially protected forest areas:

forest areas of scientific significance, including forest genetic reserves;

nut-producing zones;

subalpine forests.

A strict nature reserve regime or a protected area regime for their protection and use is established within sections of particularly valuable plantations of the State Forest Fund in accordance with the Law “On Specially Protected Natural Areas” and the forest legislation of the Republic of Kazakhstan (Article 74 of the Law).

Damage means any form of deterioration of the aforementioned objects affecting a substantial part thereof, to such an extent that they can only be made fit for use through restoration.

Destruction means the complete elimination of the aforementioned objects, rendering them incapable of being used for their intended purpose in the future.

An obligatory element of this criminal offence is the infliction of significant damage (this concept is analogous to the concept considered in the analysis of subparagraph 1) of Part 1 of Article 335 of the Criminal Code).

The crime provided for in Part 2 of Article 342 of the Criminal Code is also classified as a material offence in terms of its legal structure and shall be considered a completed crime only upon the infliction of significant damage.

The subjective element of the crime provided for in Part 2 of Article 342 is characterised by an intentional form of guilt (direct or indirect intent). The motives for the crime are irrelevant for its legal classification, but are taken into account by the court when imposing punishment on the guilty person.

The subject of the crime may be a sane natural person who has attained the age of 16.

The act provided for in Part 1 of Article 342 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 342 of the Criminal Code is classified as a crime of medium gravity.

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 reforming 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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