Commentary on Article 343. Failure to Take Measures to Eliminate the Consequences of Environmental Pollution of the Criminal Code of the Republic of Kazakhstan
1. Evading the implementation or improper implementation of decontamination or other restoration measures in areas subjected to environmental pollution by persons who are entrusted with the obligation to carry out such measures —
shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.
2. The same act, which created a threat of causing death to a person or resulted in the infliction of grievous or moderate bodily harm to a person, or caused major damage —
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 deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years, or without such deprivation.
3. Acts provided for in parts one or two of this Article, which resulted in the death of a person or mass illness among people, or caused particularly large-scale damage —
shall be punishable by imprisonment for a period of two to seven years, 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.
The public danger of the criminal offence under consideration (Part 1 constitutes a criminal misdemeanour, while Parts 2 and 3 constitute crimes) lies in undermining environmental safety, causing harm to human life or health, and resulting in mass illness among people. In addition, damage is also caused to natural objects themselves (the plant and animal world, the condition of atmospheric air, water, soil, etc.).
The object of the criminal offence is environmental safety. The additional objects are human life and health.
The objective side of the criminal offence provided for in Part 1 of Article 343 of the Criminal Code consists of the following elements:
evading the implementation of decontamination or other restoration measures in areas subjected to environmental pollution;
improper implementation of decontamination or other restoration measures in areas subjected to environmental pollution.
Evasion means complete withdrawal from performing actions aimed at carrying out decontamination or other restoration measures in areas subjected to environmental pollution, whereas improper implementation of decontamination or other restoration measures in areas subjected to environmental pollution means carrying them out inadequately, incompletely, or not in accordance with environmental requirements and regulations.
Decontamination should be understood as the removal of radioactive contamination from the surfaces of various objects and structures.
Decontamination may be partial or complete. During partial decontamination, the level of radioactive contamination is merely reduced; during complete decontamination, the contamination level is reduced to such an extent that external radiation exposure and the probability of harm resulting from radioactive substances coming into contact with the skin or entering the body become minimal.
The act provided for in Part 1 of Article 343 of the Criminal Code is considered completed from the moment the actions specified in the disposition of this Article are committed; that is, by its construction, it belongs to the category of criminal offences with a formal composition.
From the subjective side, the criminal offence is characterised by indirect intent (see the analysis of the environmental crime provided for in Part 1 of Article 324 of the Criminal Code).
The subject of the criminal offence is special; it is a person upon whom the obligation to carry out decontamination or other restoration measures in areas subjected to environmental pollution has been imposed by a regulatory legal act.
Under Part 2 of Article 343 of the Criminal Code, liability arises for evading the implementation or improper implementation of decontamination or other restoration measures in areas subjected to environmental pollution, which has created a threat of causing death to a person or resulted in the infliction of grievous or moderate bodily harm to a person, or caused major damage.
The threat of causing death to a person should be understood as the existence of a real danger of causing a person's death or the emergence of a situation or circumstances that could have resulted in a person's death if they had not been prevented in a timely manner by measures taken or by other circumstances beyond the will of the perpetrator. The concepts of grievous bodily harm and moderate bodily harm are contained in subparagraphs 11) and 12) of Article 3 of the Criminal Code of the Republic of Kazakhstan.
If, during the evasion of the implementation or improper implementation of decontamination or other restoration measures in areas subjected to environmental pollution, grievous or moderate bodily harm was caused to a person, the actions of the guilty person must be classified under Part 2 of Article 343 of the Criminal Code, since the legislator has provided for the aforementioned elements in the disposition of the criminal offence under consideration.
The concept of major damage is provided in the commentary to subparagraph 1) of Part 4 of Article 335 of the Criminal Code.
The crime provided for in Part 2 of Article 343 of the Criminal Code is, by its construction, a formal-material composition; that is, it is recognised as a formal composition in cases where a threat of causing death to a person has arisen and, accordingly, is recognised as a material composition and considered completed in cases where, during its commission, grievous or moderate bodily harm was caused to a person or major damage was caused.
Under Part 3 of Article 343 of the Criminal Code, the actions of the guilty person must be classified where evasion of the implementation or improper implementation of decontamination or other restoration measures in areas subjected to environmental pollution resulted in the death of a person or mass illness among people, or caused particularly large-scale damage.
The criminal consequences in the form of causing a person's death and mass illness among people were examined in the analysis of the crime provided for in Part 2 of Article 324 of the Criminal Code.
The particularly aggravating element of «particularly large-scale damage» was examined in the analysis of the criminal offence provided for in Part 2 of Article 334 of the Criminal Code.
The act provided for in Part 1 of Article 343 of the Criminal Code belongs to the category of criminal misdemeanours.
The act provided for in Part 2 of Article 343 of the Criminal Code belongs to the category of crimes of medium gravity.
The act provided for in Part 3 of Article 343 of the Criminal Code belongs to the category of serious crimes.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 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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