Commentary to article 382. Violation of the requirements for the use of wildlife and hunting rules The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the requirements for the use of wildlife and (or) hunting rules, which does not contain signs of a criminal offense, -
entails a warning or fine for individuals in the amount of five, for small businesses - in the amount of twenty-five, for medium-sized businesses - in the amount of fifty, for large businesses - in the amount of one hundred monthly calculation indices.
2. The same violation provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty., -
entails a fine for individuals in the amount of fifteen, for small businesses - in the amount of sixty-five, for medium-sized businesses - in the amount of one hundred, for large businesses - in the amount of two hundred monthly calculation indices, or deprivation of the right to hunt for up to two years, with confiscation of animal husbandry tools, vehicles and other items, which were the instrument of committing the specified violation.
3. The action provided for in the first part of this Article, committed in specially protected natural territories, -
entails a fine for individuals in the amount of seventy, for small businesses in the amount of one hundred and ten, for medium-sized businesses in the amount of one hundred and fifty, for large businesses in the amount of one thousand monthly calculation indices, or deprivation of the right to hunt for up to two years, with confiscation of objects and (or) tools of administrative offenses.
The general object of the offense is the environmental safety of the Republic of Kazakhstan, which is ensured by the protection and rational use and provision of the necessary number of wildlife.
The direct object of the offense is the order of use of the animal world and (or) the rules of hunting.
The objective side of part 1 of the offense in question is characterized by two qualifying features and manifests itself in illegal actions (omissions) in the form of:
1) violation of the requirements for the use of wildlife;
2) violation of hunting rules.
The above-mentioned illegal actions should not contain signs of a criminally punishable act. In this regard, it is necessary to define criteria for distinguishing administrative from criminal offenses in the field of environmental legislation.
Competing norms of the criminal law will be art. 337 "Illegal hunting" and art. 338 Violation of the rules of wildlife protection of the Criminal Code. If illegal hunting is carried out using explosive devices or other means of mass destruction of animals, as well as using aircraft, motor vehicles, including snowmobiles, or small vessels, then such acts will be classified as a criminal offense.
Violation of the rules for the protection of wildlife will be recognized as a criminal offense if:
1) during the implementation of production processes or the operation of vehicles, the use of plant protection products, mineral fertilizers or other preparations, have caused the mass destruction or death of wildlife;
2) violation of the order of use or protection of hunting grounds, fishing ponds, caused major damage.
According to paragraph 38 of Article 3 of the Criminal Code, major damage will be recognized if the cost expression of the costs necessary to restore the environment and consumer properties of natural resources exceeds one thousand monthly calculation indices. That is, criminal offenses in the field under study are material norms of law, and an administrative offense can be recognized without material damage to wildlife or minor damage that does not fall under the provisions of the Criminal Code.
On the basis of the Law of the Republic of Kazakhstan dated July 9, 2004 No. 593 "On the protection, reproduction and use of wildlife", the blank concepts mentioned in Part 1 of the commented article have been clarified.:
- protection of wildlife – activities aimed at the conservation of wildlife, its habitat and biological diversity, the sustainable use and reproduction of wildlife, as well as a set of measures to prevent and combat offenses in the field of protection, reproduction and use of wildlife;
- wildlife – a set of animals permanently or temporarily residing on the territory of the Republic of Kazakhstan, as well as related to the natural resources of the continental shelf and the exclusive economic zone of the Republic of Kazakhstan;
- hunting is a type of special use of the animal world, in which the species of animals that are the object of hunting are removed from their habitat.
The following types of use of wildlife are allowed on the territory of the Republic of Kazakhstan:
1) hunting;
2) fishing, including the capture of aquatic invertebrates and marine mammals;
3) the use of animals for economic purposes that are not related to hunting and fishing facilities;
4) the use of animals for scientific, cultural, educational, educational, aesthetic purposes, as well as for the prevention of epizootics;
5) the use of beneficial properties and animal waste products;
6) the use of animal species for reproductive purposes.
Hunting is divided into the following types:
1) commercial hunting - the extraction of species of animals that are the object of hunting for the purposes of entrepreneurial activity;
2) amateur (sports) hunting, including national hunting:
- amateur (sports) hunting - the extraction of species of animals that are the object of hunting, in order to satisfy sporting, aesthetic needs and for personal consumption of the obtained products;
- national hunting is the extraction of species of animals that are the object of amateur (sports) hunting, using hunting birds of prey and national breeds of hunting dogs.
The Law of the Republic of Kazakhstan dated July 9, 2004 "On the protection, reproduction and use of wildlife" prohibits hunting:
1) without a hunter's certificate. The rules for issuing and the form of the hunting certificate were approved by the order of the Deputy Prime Minister of the Republic of Kazakhstan - Minister of Agriculture of the Republic of Kazakhstan dated February 2, 2018.;
2) with firearms without the permission of the internal affairs bodies for the right to store and use them;
3) with hunting birds of prey without their registration in accordance with the procedure established by the legislation of the Republic of Kazakhstan;
4) hunting tools, the use of which is not provided for by the rules of hunting;
5) for commercial purposes without an agreement with a hunting enterprise;
6) in the reserve fund of hunting grounds, unless otherwise established by the authorized body;
7) on the lands of populated areas, as well as adjacent territories at a distance that does not ensure the safety of hunting firearms in accordance with hunting rules.;
8) on the lands of industry, transport, communications, defense without the permission of the authorized body;
9) animals in distress and helpless situations (fleeing from storms, floods, fires, crossing reservoirs, in icy conditions, exhausted from lack of food, waterfowl holed up in polynyas);
10) for amateur (sports) purposes using aircraft, auto, motorized vehicles, snowmobile equipment (except hunting wolves), small vessels with the engine turned on, night vision devices, laser designators, lighting and sound devices;
11) in a state of alcoholic or narcotic intoxication or other type of intoxication;
12) on lands occupied by agricultural crops until the end of harvesting;
13) in specially protected natural territories, with the exception of territories where certain types of environmental management are allowed in accordance with the procedure established by the legislation of the Republic of Kazakhstan.;
14) using firearms on river beaver, otter, mink, muskrat;
15) with the destruction and damage of animal dwellings, with the exception of excavation of burrows for the rescue of hunting dogs;
16) with the destruction of the dam erected by the river beaver;
17) with the use of pneumatic and throwing weapons (except for the use of bows and crossbows for scientific research and preventive work related to the immobilization and injection of objects of the animal world);
18) using cartridges with armor-piercing, incendiary or explosive bullets with a displaced center of gravity;
19) using self-made rifled insert barrels (inserts) in smoothbore hunting rifles;
20) with the burning of wastelands, above-water vegetation, uprooting and destruction of other vegetation;
21) using crossbows, clamps, grips, gags, undercuts; setting traps, trap pits; by setting large traps without identification marks noticeable to humans, tents, overhangs, hooks, spikes, bird glue; smoking, driving on smooth ice, ice, deep snow and viscous salt marshes, mown reeds; the use of traps in the production of brown bears, ungulates and birds; hunting with a boiler, horseshoe;
22) with the use of nets; by pouring out of burrows (except for trapping animals for their introduction, reintroduction, hybridization or captivity in coordination with the department of the authorized body);
23) with the use of explosive devices, chemical and poisonous substances, with the exception of the use of toxic chemicals in the extermination of mouse-like rodents (ground squirrels, gray rats, hamsters), as well as in cases of rabies and other animal diseases;
24) in excess of the number of animals specified in the permit for the use of wildlife or travel permit;
25) other types of animals not specified in the permit for the use of wildlife or travel permit;
26) without a permit issued by a hunting enterprise;
27) using hunting birds of prey imported from other countries for species of animals that are objects of hunting;
28) without a decoy duck or a scarecrow during spring duck drake hunting;
29) unaccompanied by a huntsman or a state inspector for the protection, reproduction and use of wildlife on ungulates and brown bears;
30) for amateur (sports) purposes, a groundhog with a rifled weapon with a caliber of five point six millimeters, chambered for lateral (ring) ignition;
31) in dormant areas and reproductive areas.
The procedure and timing of hunting on the territory of the Republic of Kazakhstan are regulated by the Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated February 27, 2015 No. 18-03/157 "On approval of Hunting Rules".
The tasks and functions of the state protection of wildlife, as well as the organizational structure, were approved by the Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated February 27, 2015 No. 18-03/146 "On Approval of the Regulations on State Protection of Wildlife".
The main objectives of the state protection of wildlife are:
1) prevention and suppression of offenses in the field of protection, reproduction and use of wildlife;
2) sending information, claims and other materials to authorized, law enforcement and judicial authorities on violations of the legislation of the Republic of Kazakhstan in the field of protection, reproduction and use of wildlife.
For the purposes of state management of the protection, reproduction and sustainable use of wildlife, as well as the conservation of biological diversity and animal habitat in the Republic of Kazakhstan, state records, cadastre and monitoring of wildlife have been approved, containing a set of information on the condition and geographical distribution of animal species, their numbers, the results of regular observations, the volume of their economic use and other necessary data.
Government services in the field of wildlife are defined by standards and approved by the Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated April 30, 2015 No. 18-03/390 [9]. The requirements for the use of wildlife are regulated by the following standards of public services:
1) issuance by an administrative body of permits for the import into and export from the territory of the Republic of Kazakhstan of animal species subject to the Convention on International Trade in Endangered Species of Wild Fauna and Flora";
2) issuing permits for the introduction, reintroduction and hybridization of animals;
3) adoption by local executive bodies of the region of a decision on securing hunting grounds and fisheries reservoirs and (or) sites for users of wildlife and the establishment of easements for the needs of hunting and fisheries;
4) issuance of a permit for the use of wildlife;
5) issuing permits for the removal of animal species, the number of which is subject to regulation.
The objective side of Part 2 of Article 382 of the Administrative Code establishes administrative liability for repeated commission within a year after the imposition of an administrative penalty of the offense provided for in part one of this Article. Moreover, a repeat offense does not relate to a circumstance aggravating administrative liability, since administrative liability for a repeat offense is established in the article itself as a qualifying feature and provides for a more severe punishment.
The objective side of part 3 of the article in question is characterized by all the qualifying features specified in part 1 of Article 382 of the Administrative Code. Specially protected natural territories are the only place where an offense is committed, and public relations in these territories are regulated by the Law of the Republic of Kazakhstan dated July 7, 2006 "On Specially Protected Natural Territories". This Law regulates public relations on the creation, expansion, protection, restoration, sustainable use and management of specially protected natural territories and objects of the state nature reserve fund, representing special ecological, scientific, historical, cultural and recreational value, as well as being a component of the national, regional and global ecological network.
Specially protected natural area – 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. Protection of specially protected natural territories (hereinafter referred to as protection) is a set of measures that can be carried out in a specially protected natural territory to identify and suppress violations of the legislation of the Republic of Kazakhstan in the field of specially protected natural territories, prevention, detection and elimination of fires.
The subjects of the administrative offense under consideration in all parts may be individuals who have reached the age of 16 and legal entities who have violated these rules.
In accordance with Article 33 of the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife", individuals have the right to hunt provided:
1) reaching the age of eighteen, if hunting is conducted with the use of firearms in the presence of a permit for the storage, storage and carrying of civilian weapons and ammunition to individuals in accordance with the form approved by the hunting rules of 02/27/2015;
2) reaching the age of fourteen, if hunting is carried out using other hunting and other types of hunting tools permitted by the Rules with the help of hunting dogs and hunting birds of prey.
Administrative responsibility of non-adults occurs in accordance with the procedure set out in Articles 65-67 of the Administrative Code.
The subjective side of the offense being commented on may be in the form of intent or negligence.
Administrative penalties are provided for by the sanctions of Article 382 of the Administrative Code in the form of:
1)warn (part 1);
2) administrative fine (parts 1-3);
3) deprivation of the right to hunt for up to two years with confiscation of objects and (or) implements of an administrative offense (Part 3).
It should be noted that, based on the note to Article 366 of the Administrative Code, an administrative fine under Part 1 of Article 382 of the Administrative Code is applied only if the offender has caused damage to wildlife five or more times exceeding the monthly calculation index. If the offense is formal, the illegal act was committed for the first time, then the penalty is imposed only in the form of a warning.
They have the right to initiate proceedings on administrative offenses and impose administrative penalties under Part 1 of Article 382 of the Administrative Code.:
1) chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial bodies of internal affairs, divisions of administrative, migration police, local police service of the region, the city of republican significance, the capital, their deputies
2) employees of the internal affairs bodies (police) with special ranks (clause 4, Part 2, Article 685 of the Administrative Code)
3) authorized bodies in the field of forestry, fishing and hunting (Part 1 of Article 709), namely:
- officials of authorized bodies in the field of forestry, fishing and hunting of the Republic of Kazakhstan and their territorial bodies (Part 2, paragraph 1, Article 709);
- heads and deputy heads of state forestry institutions (Part 2, paragraph 2, Article 709);
- officials of the structural divisions of forestry and hunting of regional executive bodies (part 2, paragraph 3, art. 709);
- heads, deputy heads, and heads of services for the protection of specially protected natural territories established in the organizational and legal form of a state institution (Part 2, paragraph 4, Article 709).
4) the Border Guard Service of the National Security Committee of the Republic of Kazakhstan (Part 3 of Article 726).
Cases of administrative offenses provided for in parts 2 and 3 of Article 382 of the Administrative Code are considered by judges of specialized district and equivalent administrative courts (art. 684 Part 1), and on the basis of art. 804 of the Administrative Code, proceedings on administrative offenses under these parts of the Article may be initiated.:
1) internal affairs bodies (police);
2) bodies in the field of forestry, fishing and hunting;
3) Border Guard Service of the National Security Committee of the Republic of Kazakhstan;
4) local executive bodies of regions, cities of republican significance, capitals, districts, cities of regional significance;
5) officials of specialized organizations of authorized bodies in the field of forestry, fishing and hunting;
6) huntsmen, directors of hunting and fishing farms responsible for the protection of wildlife.
If a commented offense is detected involving the use of a vehicle, vessel, including a small vessel, persons with jurisdictional authority to apply security measures have the right to deliver and prohibit the operation of these means (Part 1 of Article 797 of the Administrative Code).
According to Part 3 of Article 812 of the Administrative Code, cases of administrative offenses provided for in Article 382 of the Administrative Code are considered at the place of their commission or at the place of residence of the person against whom proceedings on an administrative offense are being conducted. A similar provision is provided for in Articles 829-1 of the Administrative Code when considering a case of an administrative offense by a court.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 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 Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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