Commentary to article 287. Illegal extraction of aquatic animals and plants of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Illegal fishing of fish, marine animals and other aquatic animals or plants, if this act is committed with significant damage, or with the use of explosives and chemicals, electric current, or other methods of mass extermination of said aquatic animals and plants, —
is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or correctional labor for up to two years, or arrest for a period of four to six months, or deprivation of the right to hold certain positions or engage in certain activities for up to three years with confiscation of property that is the object of criminal acts, an instrument or means of committing a crime, an object withdrawn from circulation or without it.
2. The same act committed: a) repeatedly; b) in relation to sturgeon species of fish; c) in spawning grounds or on migration routes to them; d) by a person using his official position: e) by a group of persons by prior agreement; f) using self-propelled floating transport means; g), in specially protected natural areas and in areas with an environmental emergency, —
is punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to seven months, or by imprisonment for up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years with confiscation of the convicted person's property, as well as the same property that is the object of criminal acts, an instrument or means of committing a crime, an object withdrawn from circulation or without it.
3. The act provided for in the first and second parts of this Article, committed with the infliction of major damage or by an organized group,-
is punishable by imprisonment for a term of two to five years with confiscation of the convicted person's property, as well as property that is the object of criminal acts, an instrument or means of committing a crime, an object withdrawn from circulation.
The public danger of illegal extraction of aquatic animals and plants is to undermine the environmental safety of the Republic of Kazakhstan, causing damage to wildlife.
The object of the crime is environmental safety, which is ensured by the protection, use, reproduction and provision of ecologically necessary numbers of fish, other aquatic animals or commercial plants.
Fish, other aquatic animals and plants in a state of natural freedom are recognized as the subject of a crime. Places of illegal fishing of fish and other aquatic animals or plants are fishery reservoirs – reservoirs (rivers and equivalent channels, lakes, reservoirs, ponds and other internal reservoirs, territorial waters), as well as sea waters that are used and can be used for fishing and harvesting other aquatic animals or are important for reproduction of their stocks (part 1 of art. 39 of the Law of the Republic of Kazakhstan "On Protection, reproduction and use of wildlife" dated July 9, 2004).
Fish are a superclass of aquatic vertebrates whose anatomy, physiology, ecology, and behavior are determined by their habitat in water (carp, crucian carp, bream, sturgeon, trout, etc.).
Other aquatic animals are aquatic invertebrates (crabs, other crustaceans, trepangs, squids, octopuses, mollusks, etc.).
Criminal liability for the illegal extraction of waterfowl fur-bearing animals (river beaver, otter, muskrat, muskrat, nutria) occurs not under Article 287 of the Criminal Code, but under Article 288, since these animals are classified as fur-bearing animals. Plants are plant species intended for mass production, mainly algae, used as food, livestock feed, medicines and their components.
On the objective side, the crime provided for in Article 287 of the Criminal Code of the Republic of Kazakhstan is the illegal extraction of fish and other aquatic animals or plants, provided that such extraction:
a) caused significant damage;
b) it was carried out using explosives and chemicals, electric current or other methods of mass extermination of aquatic animals and plants.
Illegal fishing of fish and other aquatic animals or plants should be understood as such fishing, which was carried out without proper permission or at a prohibited time or in an unspecified place, or in a prohibited manner.
Significant damage should be understood as damage that is one hundred times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.
The issue of the presence or absence of significant damage in cases of illegal aquatic fisheries should be resolved taking into account the quantity, cost, and environmental value of illegally caught fish, aquatic animals, and other damage caused to wildlife.
At the same time, it is necessary to proceed not only from the quantity and cost of the extracted, but also to take into account environmental damage, in particular, the destruction of spawning grounds; the death of a large number of fry; during illegal fishing, trapping or destruction of animals and plants listed in the Red Book of the Republic of Kazakhstan.
The crime should be considered over from the moment of extraction, fishing, regardless of whether fish, aquatic or other animals, plants were actually harvested. In cases where the obligatory sign of a crime is the infliction of significant or major damage, the final composition can take place only upon the actual occurrence of such damage.
Explosives include dynamite, TNT, explosive packages and other devices designed for noise jamming, luring, and corralling aquatic animals.
The concept of chemicals – see the commentary to art. 278 of the Criminal Code.
The use of electric current should be understood as the use of electric charges in the process of extracting aquatic animals. Other methods of mass extermination of aquatic animals and plants are such methods of their extraction, which entail the destruction of a large number of these objects. These include methods of rounding and hauling, the use of fine-mesh nets and other fishing equipment, the use of hook tackle, the use of gas, overheating of a water body with fishing gear for most of the width of the reservoir, etc.
The presence of a permit issued by the competent authority for the extraction of fish and other aquatic animals or plants does not exclude liability under the commented article if the extraction was carried out at a prohibited time, or in a prohibited place, or with prohibited tools and methods.
The actions of persons guilty of illegal fishing of fish, aquatic animals raised by enterprises and organizations in specially constructed or adapted reservoirs, or taking possession of fish, aquatic animals captured by these organizations or located in nurseries, as well as taking possession of wild animals, birds in aviaries, are subject to qualification as theft of other people's property.
On the subjective side, the crime in question can only be committed intentionally: the perpetrator is aware that he is committing illegal extraction of aquatic animals and plants, and desires it.
The subject of the crime is a person who has reached the age of 16.
Part 2 of Article 287 establishes criminal liability for acts provided for in Part 1, committed by:
a) repeatedly;
b) in relation to sturgeon species of fish;
c) in spawning grounds or on migration routes to them;
d) a person using his official position;
e) a group of persons by prior agreement;
f) using a self-propelled floating vehicle;
g) in specially protected natural territories and territories with an ecological emergency.
For the concept of repetition, see the commentary to Article 11 of the Criminal Code. Spawning grounds are a spawning ground, i.e. a place used for fish to throw sexual products (mature eggs and milk) for the purpose of subsequent fertilization.
Migration routes to spawning sites are the routes of some fish species from permanent habitats to spawning grounds, for example, salmon and sturgeon fish species go from seas to rivers to spawn, and river eel, on the contrary, from rivers to seas.
The use of official position is understood as the commission by a person of illegal actions, contrary to the interests of the service, related to the extraction of aquatic animals and (or) plants, the implementation of which is to some extent facilitated by the use of his official position by the perpetrator. In this case, it does not matter in whose interests the illegal act is committed.
Abuse of official authority or the authority of a person performing managerial functions in a commercial or other organization that resulted in the illegal extraction of aquatic animals (plants) should be qualified under paragraph "d" of Part 2 of Article 287 of the Criminal Code without reference to Articles 228 or 307 of the Criminal Code.
By a group of persons by prior agreement, see the commentary to art. 31 of the Criminal Code.
Self–propelled floating vehicles are any structures, devices, and structures powered by an engine (catamarans, motorboats, speedboats, vessels, flying hydraulic devices, etc.). Self-propelled vehicles used to transport perpetrators to a place of illegal extraction of aquatic animals (plants) cannot be recognized as means of committing a crime, and Therefore, they do not entail the qualification of a criminal act under paragraph "e" of part 2 of Article 287 of the Criminal Code.
Specially protected natural territory, according to paragraph 2 of Article 1 of the Law of the Republic of Kazakhstan "On Specially Protected Natural Territories" dated July 7, 2006 – areas of land, water bodies and airspace above them with natural complexes and objects of the state nature reserve fund, for which a special protection regime is established.
For the concept of an environmental emergency, see the commentary to Articles 285, 278, 279 of the Criminal Code of the Republic of Kazakhstan.
Part 3 of Article 287 of the Criminal Code establishes criminal liability for acts provided for in parts one and two of this article committed with the infliction of major damage or by an organized group.
Major damage is considered to be damage three hundred or more times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.
For the concept of an organized group, see the commentary to art. 31 of the Criminal Code of the Republic of Kazakhstan.
The crimes provided for in Parts 1, 2 of art. 287 relate to crimes of minor gravity.
The crime provided for in Part 3 of Article 287 refers to crimes of moderate severity.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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