Commentary on Article 408-1. Violation of the Legislation of the Republic of Kazakhstan in the Field of Organic Product Production of the Code of the Republic of Kazakhstan on Administrative Offenses

1. Violation of the legislation of the Republic of Kazakhstan in the field of organic product production, committed in the form of the release and sale of organic products that do not comply with the requirements of the legislation of the Republic of Kazakhstan in the field of organic product production –

shall entail a fine of thirty monthly calculation indices for individuals, sixty-five monthly calculation indices for small business entities or non-profit organizations, one hundred monthly calculation indices for medium-sized business entities, and two hundred monthly calculation indices for large business entities.

1. An act (omission) provided for in Part One of this Article, committed repeatedly within one year after the imposition of an administrative penalty –

shall entail a fine of forty-five monthly calculation indices for individuals, one hundred and twenty monthly calculation indices for small business entities or non-profit organizations, two hundred monthly calculation indices for medium-sized business entities, and four hundred monthly calculation indices for large business entities.

The object of the composition of the offense under commentary is the social and legal relations arising in connection with the release and sale of organic products that comply with the requirements of the legislation of the Republic of Kazakhstan in the field of organic product production.

Subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan dated November 27, 2015, No. 423-V ZRK, “On the Production of Organic Products,” defines “organic products” as “agricultural products, aquaculture (fish farming) products, products obtained from wild plants and products of their processing, including food products, produced in accordance with the requirements of this Law.”

In accordance with Paragraph 1 of Article 9 of the Law of the Republic of Kazakhstan “On the Production of Organic Products,” producers of organic products and persons engaged in their circulation are required to ensure the safety of organic product production and to comply with the legislation of the Republic of Kazakhstan in the field of organic product production.

The objective element of the offense is expressed in actions that violate the legislation of the Republic of Kazakhstan in the field of organic product production and take the form of the release and sale of organic products that do not comply with the requirements of the legislation of the Republic of Kazakhstan in the field of organic product production.

According to Paragraph 1 of Article 11 of the Law of the Republic of Kazakhstan “On the Production of Organic Products,” the following conditions must be observed in the production of organic products:

1. the use of healthy animals and plants, and safe products and raw materials of animal and plant origin;
2. the exclusion of the use of synthetic substances, pesticides (toxic chemicals), hormones, antibiotics, and food additives, except for the exceptions provided for by the Rules for the Production and Circulation of Organic Products;
3. the exclusion of the use of genetically modified organisms;
4. the exclusion of the use of methods for producing crop products without the use of soil;
5. the exclusion of the use of ionizing radiation;
6. the preservation and reproduction of soil fertility;
7. the minimization of the use of non-renewable natural resources;
8. the exclusion of chemical methods for treating wild plants;
9. the reuse of waste and by-products of plant and animal origin is possible only if they have been obtained under conditions of organic production;
10. the preservation of ecological systems when selecting a specific type of organic product for production;
11. the protection of plants through preventive measures, including the selection of appropriate crop rotations and plant species and varieties resistant to pests, weeds, and plant diseases;
12. the preferential use of mechanical, biological, and physical methods of protecting plants against pests, weeds, and plant diseases;
13. care for animal health by providing appropriate housing and grazing conditions, taking their natural behavior into account, and stimulating natural immunity;
14. the selection of plant species and varieties and animal breeds that are adapted to local conditions and are resilient;
15. the use in livestock farming of feed and feed additives consisting of ingredients obtained through organic product production, as well as substances of natural origin.

The disposition of Part One of Article 408 of the Code of the Republic of Kazakhstan on Administrative Offenses is of a blanket nature and refers to another regulatory legal act. The actions constituting the objective element of this type of offense are sufficiently diverse.

For example, in accordance with Paragraph 12 of the “Rules for the Production and Circulation of Organic Products,” approved by Order No. 230 of the Minister of Agriculture of the Republic of Kazakhstan dated May 23, 2016, organic crop production uses soil treatment and cultivation methods that maintain or increase the content of organic materials in the soil, enhance soil stability and biological diversity, prevent soil compaction and erosion, and prevent the development of degradation processes.

Paragraph 19 of the “Rules for the Production and Circulation of Organic Products” states that soil fertility and biological activity are maintained and increased through the use of soil-improving substances and substances of animal and plant origin obtained within the organic farming system and having undergone composting or anaerobic fermentation:

1. bedding manure and poultry droppings obtained from farms producing organic products, following biothermal treatment, when applied to the soil 120 calendar days before harvesting;
2. non-bedding manure and non-bedding poultry droppings obtained from farms producing organic products, which are used after disinfection and decontamination;
3. household food waste, following fractionation and biothermal treatment;
4. peat, excluding peat containing synthetic additives.

According to Paragraphs 26–33 of the “Rules for the Production and Circulation of Organic Products,” when selecting animals, the suitability of their breeds and species for breeding under the conditions of the given locality and organic production system is taken into account. Animals kept in a production unit intended for organic production, as well as products obtained from such animals, are transferred to the organic production category after completion of the conversion period.

Animals must be provided with access to pastures, grazing areas, or exercise yards, including partially covered yards, and must be able to use them in all cases. Animals raised for organic production are grazed on land plots that have not been treated with substances prohibited in organic production for at least six months.

Animals raised using conventional methods may be kept together with animals raised for organic production within the same farmyard, provided that they are clearly separated. Animals raised using conventional methods are grazed separately from animals raised for organic production.

During the transfer to a new pasture from one grazing area to another, animals may be grazed on pastures that do not meet the requirements for organic production. For herbivorous animals, at least 50 percent of the feed must be prepared from the farm’s own production or produced by other farms in the same region that engage in organic production.

Paragraph 53 of the “Rules for the Production and Circulation of Organic Products” states that poultry is kept in the premises of a production unit intended for organic production, which must:

1. have floors without gaps, covered with bedding material (straw, wood shavings, sand, or peat);
2. be equipped with perches corresponding to the number and weight of the birds;
3. have entrance and exit openings appropriate to the size of the birds, ensuring their free access to outdoor exercise areas.

In accordance with Paragraph 1 of Article 26-1 of the Law of the Republic of Kazakhstan dated July 21, 2007, No. 301, “On the Safety of Food Products,” the production of organic food products is carried out in accordance with the requirements of the legislation of the Republic of Kazakhstan in the field of organic product production.

Subparagraph 22-1) of Article 1 of the Law of the Republic of Kazakhstan “On the Safety of Food Products” defines “organic food products” as “processed food products containing at least ninety-five percent food ingredients obtained in accordance with the Rules for the Production of Organic Products, with the maximum content of the remaining ingredients in the final product not exceeding five percent of the total mass of all ingredients, excluding food salt and water.”

The subjective element of the offense is characterized by the fact that the act may be committed either intentionally or negligently.

The subject of the offense is a special subject — a producer of organic products, that is, an individual or legal entity engaged in activities involving the development (creation) and production of organic products (individuals, small business entities or non-profit organizations, medium-sized business entities, and large business entities).

Part 2 of Article 408 of the Code of the Republic of Kazakhstan on Administrative Offenses contains the elements of the offense (object, objective element, subjective element, and subject) characteristic of Part One of the commented Article, with the exception of the additional feature of the commission of the act repeatedly within one year after the imposition of an administrative penalty.

According to Article 701 of the Code of the Republic of Kazakhstan on Administrative Offenses, the bodies exercising control and supervision in the field of sanitary and epidemiological welfare of the population consider cases of administrative offenses provided for in Article 408-1 of the Code. The head of the state body in the field of sanitary and epidemiological welfare of the population, the deputy heads, the heads of territorial divisions, and their deputies are authorized to consider cases of administrative offenses and impose administrative penalties.

In accordance with Parts One and Two of Article 729 of the Code of the Republic of Kazakhstan on Administrative Offenses, the local executive body of a region, a city of republican significance, the capital, a district, or a city of regional significance considers cases of administrative offenses provided for in Article 408-1 of the Code. The akim of a region, a city of republican significance, and the capital, as well as the akim of a district (a city of republican or regional significance or the capital) and their deputies, are authorized to consider cases of administrative offenses and impose administrative penalties.

Subparagraphs 22) and 50) of Part One of Article 804 of the Code of the Republic of Kazakhstan on Administrative Offenses provide that, in cases of administrative offenses considered by courts, the following duly authorized officials have the right to draw up administrative offense reports:

• officials of sanitary and epidemiological supervision bodies (Article 408-1 of the Code of the Republic of Kazakhstan on Administrative Offenses);
• officials of local executive bodies of regions, cities of republican significance, the capital, districts, and cities of regional significance (Article 408-1 of the Code of the Republic of Kazakhstan on Administrative Offenses).

Scientific and Practical Commentary on the Code of the Republic of Kazakhstan on Administrative Offenses (Article-by-Article) by the team of authors:

Bachurin Sergey Nikolaevich, Candidate of Legal Sciences, Associate Professor — Chapter 48 (co-authored with E. M. Khakimov);

Gabdualiev Mereke Trekovich, Candidate of Legal Sciences — Chapters 11, 21, 22, and 23;

Zhusipbekova Ainur Maratovna, Master of Laws — Chapter 13 (co-authored with A. V. Karpekin); Chapters 33 and 39 (co-authored with O. T. Seitzhanov);

Karpekin Alexander Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 13 (co-authored with A. M. Zhusipbekova);

Korneychuk Sergey Vasilievich — Chapter 2; Chapter 6 (co-authored with O. T. Seitzhanov and E. M. Khakimov); Chapter 8; Chapter 25 (co-authored with E. M. Khakimov); Articles 457–470, 488, 488-1, and 491–506; Chapters 28, 30, and 52;

Koryakin Ilya Petrovich, Doctor of Legal Sciences, Professor — Chapter 49;

Kysykova Gulnara Bauyrzhanovna, Candidate of Legal Sciences — Chapter 20;

Omarova Botagoz Akimgereevna — Chapter 17; Chapter 18 (co-authored with B. A. Parmankulova); Chapters 26 and 31; Chapter 32 (co-authored with B. A. Parmankulova);

Parmankulova Bayan Askhanbaevna — Chapter 18 (co-authored with B. A. Omarova); Chapter 19; Chapter 32 (co-authored with B. A. Omarova); Chapter 43 (co-authored with A. S. Tukiev);

Podoprigora Roman Anatolievich, Doctor of Legal Sciences, Professor — Chapter 24, Articles 489, 489-1, and 490;

Porokhov Evgeny Viktorovich, Doctor of Legal Sciences — Chapters 14, 15, 16, and 29; Articles 471–475;

Seitzhanov Olzhas Temirzhanovich, Candidate of Legal Sciences, Associate Professor — Chapter 4; Chapter 5 (co-authored with E. M. Khakimov); Chapter 6 (co-authored with S. V. Korneychuk and E. M. Khakimov); Chapter 9; Chapter 10 (co-authored with B. E. Shaimerdenov and V. V. Filin); Chapter 33 (co-authored with A. M. Zhusipbekova); Chapter 36 (co-authored with B. E. Shaimerdenov); Chapter 39 (co-authored with A. M. Zhusipbekova);

Smyshlyaev Alexander Sergeevich, PhD — Chapters 38, 40, 42, and 43-1 (co-authored with A. S. Tukiev); Chapter 44;

Tukiev Aslan Sultanovich, Candidate of Legal Sciences, Associate Professor — Chapters 1, 3, and 35; Chapters 38, 40, and 42 (co-authored with A. S. Smyshlyaev); Chapter 43 (co-authored with B. A. Parmankulova); Chapter 43-1 (co-authored with A. S. Smyshlyaev); Chapter 44-1 (co-authored with D. A. Shipp); Chapters 45 and 46 (Chapter 46 co-authored with D. A. Shipp); Chapter 47;

Filin Vladimir Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 10 (co-authored with O. T. Seitzhanov and B. E. Shaimerdenov);

Khakimov Erzhan Maratovich, Master of Laws — Chapter 5 (co-authored with O. T. Seitzhanov); Chapter 6 (co-authored with O. T. Seitzhanov and S. V. Korneychuk); Chapter 7; Chapter 25 (co-authored with S. V. Korneychuk); Chapters 34 and 41; Chapter 48 (co-authored with S. N. Bachurin); Chapter 53;

Shaimerdenov Bolat Erkenovich, Master of Laws — Chapter 10 (co-authored with O. T. Seitzhanov and V. V. Filin); Chapter 12; Articles 476–487 and 507–509; Chapter 36 (co-authored with O. T. Seitzhanov); Chapters 37, 50, and 51;

Shipp Denis Alekseevich — Chapters 44-1 and 46 (co-authored with A. S. Tukiev).

Date of amendment of the act: 01.01.2020Date of adoption of the act: 01.01.2020Place of adoption: 100050000000Body that adopted the act: 103001000000Registration number of the regulatory legal act assigned by the lawmaking body: 5Status of the act: newArea of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000Form of the act: COMMENTARY / CODELegal force: 1900Language of the act: Russian

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