Commentary to article 383. Violation of the rules of fishing and protection of fish resources and other aquatic animals of the Code of the Republic of Kazakhstan on Administrative Offenses  

     1. Violation of fishing rules, as well as rules for the implementation of other types of use of fish resources and other aquatic animals, which does not contain signs of a criminal offense, -

     entails a fine for individuals in the amount of ten, for small businesses - in the amount of thirty, for medium-sized businesses - in the amount of fifty, for large businesses - in the amount of one hundred monthly calculation indices.

     2. The action 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 twenty, for small businesses - in the amount of fifty, for medium-sized businesses - in the amount of seventy, for large businesses - in the amount of one hundred and fifty monthly calculation indices.

     3. Gross violation of the rules of fishing, with the exception of amateur (sports) fishing, at prohibited times, with prohibited tools or methods, in prohibited places, as well as the rules for the implementation of other types of use of fish resources and other aquatic animals, which does not contain signs of a criminal offense, -

     entails a fine for individuals in the amount of twenty, for small businesses in the amount of sixty, for medium-sized businesses in the amount of one hundred, for large businesses in the amount of two hundred and fifty monthly calculation indices, with or without confiscation of objects and (or) instruments of an administrative offense.

     4. The action provided for in the third 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 forty, for small businesses - in the amount of eighty, for medium-sized businesses - in the amount of one hundred and twenty, for large businesses - in the amount of three hundred monthly calculation indices, with or without confiscation of objects and (or) instruments of an administrative offense.

     5. Water intake from fishery reservoirs without installing special devices to prevent fish from entering water intake facilities -

     entails a fine for individuals in the amount of ten, for small businesses - in the amount of thirty, for medium-sized businesses - in the amount of seventy, for large businesses - in the amount of one hundred and fifty monthly calculation indices.

     comment_____________________________________________

     The public danger of illegal fishing of fish resources and other aquatic animals is to cause damage to them and undermine the environmental safety of the Republic of Kazakhstan. Fish resources and other aquatic animals act as the total totality of all animals living in the aquatic environment.

     The general object of the administrative offense being commented on is the social and legal relations arising in the field of environmental protection and the use of natural resources.

     The direct object of the offense is the procedure for fishing, as well as other types of use of fish resources and other aquatic animals.

     The objective side of part 1 of the article in question is characterized by two qualifying features and manifests itself in illegal actions or omissions in the form of:

     1)violation of fishing regulations;

     2)violation of the rules for the implementation of other types of use of fish resources and other aquatic animals.

     The disposition of part 1 of the article explicitly states that the above-mentioned illegal actions will be administrative if they do not contain signs of a criminally punishable act. Competing norms in the Criminal Code of the Republic of Kazakhstan dated July 3, 2014 No. 226 are:

     1) Article 335. Illegal extraction of fish resources, other aquatic animals or plants;

     2) Article 336. Violation of the rules of protection of fish stocks.

     The above articles have the status of a criminal offense.

     Violation of fishing rules differs from a criminal offense (illegal extraction of aquatic resources and other aquatic animals) if significant damage has been caused or with the use of explosives or chemicals, electric current, or other methods of mass extermination of fish resources and other aquatic animals.

     Violation of the rules for other types of use of fish resources and other aquatic animals differs from a criminal offense (violation of the rules for the protection of fish stocks) if the act caused or could have caused mass death of fish or other aquatic animals during the construction of bridges, dams, blasting or other work, operation of water intake facilities or pumping mechanisms.

     Based on Article 3, when committing Article 335 of the Criminal Code, significant damage and significant size is the cost expression of the costs necessary to restore the environment and consumer properties of natural resources in an amount exceeding one hundred monthly calculation indices.

     Other cases of illegal fishing of fish and aquatic animals without significant damage to the environment entail administrative liability.

     Based on the Law of the Republic of Kazakhstan dated July 9, 2004 No. 593 "On the protection, reproduction and use of wildlife", fishing is defined as fishing for fish resources and other aquatic animals. Fishing is divided into the following types:

     1) Commercial fishing;

     2) amateur (sport) fishing;

     3) scientific research fishing;

     4) control fishing;

     5) reclamation fishing;

     6) fishing for reproductive purposes.

     In accordance with paragraph 5 of Article 39 of the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife", places and methods prohibited from fishing and harvesting other aquatic animals are listed, which can be qualified under parts 1 and 3 of Article 383 of the Administrative Code, as well as competing norms of the Criminal Code.

     In this regard, illegal actions in the field of fishing and other types of use of fish resources and other aquatic animals with the least public danger and not subject to Part 3 of Article 383 of the Administrative Code are qualified under part 1 of the article in question.

     Fishing in reservoirs that are part of specially protected natural territories with the status of a legal entity is 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.

     The rules for other types of use of fish resources and other aquatic animals are regulated by the order of the Acting Chairman of the Forestry and Wildlife Committee of the Ministry of Agriculture of the Republic of Kazakhstan dated July 24, 2015 No. 190 "On the introduction of restrictions and prohibitions on the use of wildlife, their parts and derivatives, the establishment of places and terms of their use." This order introduced a ban on fishing:

     1) using piercing fishing gear (spear, pike, trap), self-propelled fishing gear (samolov, peretyagi, peremety), explosives and toxic substances, as well as firearms;

     2) methods and methods, fishing gear, the use of which is not provided for by the rules of fishing, and not included in the list of permitted commercial and non-commercial types of fishing gear and methods, approved by Order of the Minister of Agriculture of the Republic of Kazakhstan dated January 16, 2015 No. 18-04/17;

     3) using fishing gear with smaller mesh sizes provided for in the rules of fishing and permits for the use of wildlife, in accordance with the Rules for issuing permits for the use of wildlife, approved by Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated December 19, 2014 No. 18-04/675;

     4) in wintering pits in winter, on spawning grounds during spawning and in other areas, at the time and places established by these restrictions and prohibitions;

     5) in places of concentration and on migration routes of fish resources and other aquatic animals during their breeding season, established by these restrictions and prohibitions;

     6) by the method of bagging, driving with the help of rattling and botany;

     7) with the withdrawal of fish resources and other aquatic animals less than the fishing measure established by the rules of fisheries.

     The objective side of part 2 of the commented article is characterized by repeated actions provided for in Part 1 of Article 383 of the Administrative Code, committed within a year after the imposition of an administrative penalty. Moreover, repetition here is a qualifying feature, not a circumstance aggravating administrative responsibility, and actions should not be qualified as "gross", which are listed in Part 3 of this article.

     The objective side of part 3 almost completely coincides with the illegal actions specified in part 1 of the commented article, except that such actions should be rude and characterized by two qualifying signs:

     1) gross violation of the rules of fishing, with the exception of amateur (sports) fishing, at prohibited times, with prohibited implements or methods, in prohibited places;

2) gross violation of the rules for the implementation of other types of use of fish resources and other aquatic animals.

     The disposition of part 3 of the article explicitly states that the above-mentioned illegal actions will be administrative if they do not contain signs of a criminally punishable act. The procedure for distinguishing the offenses provided for in Part 3 of the article under study from competing norms of criminal law coincides with the comments specified in Part 1 of Article 383 of the Administrative Code.  

     More difficulties in law enforcement practice may arise when qualifying offenses under Part 1 of the article in question and their difference from the gross illegal actions listed in Part 3 of the article.

     Unfortunately, in the codified legislation, in specialized laws in the field of environmental safety and at the subordinate level, the legislator did not disclose the concept and content of "gross violation". The formally valid Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 1 "On the application by courts of legislation on liability for certain environmental crimes" does not clarify the situation, since it has not been amended and supplemented since 2011 and it does not take into account the fact that a new codified legislation has existed since January 1, 2015.

     Therefore, law enforcement officers should proceed from the content of the disposition of Part 3 of the commented article, where fishing is recognized as a gross violation of fishing rules.:

     1) within the prohibited time limits;

     2) prohibited tools or methods;

     3) in forbidden places;

     4) in violation of the rules for the implementation of other types of use of fish resources and other aquatic animals, which does not contain signs of a criminally punishable act.

     The prohibitions set out in paragraph 5 of Article 39 of the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife" list prohibited places and methods of fishing should be considered more precise definitions of rough fishing.:

     1) at dams, locks and bridges, on channels connecting lakes with each other and the main river, supply channels and branches of reclamation systems, at a distance closer than 500 meters in front of the mouths of rivers and channels on both sides of their confluence and at a distance closer than 500 meters deep into the reservoir, as well as at a distance of 1,500 meters up the river and canal;

     2) fishing gear, the use of which is not provided for by the Rules of fishing, approved by the Order of the Acting Minister of Agriculture of the Republic of Kazakhstan dated February 27, 2015 No. 18-04/148;

     3) in wintering pits during the winter period, on spawning grounds during spawning and other areas at the time and places established by the authorized body on the basis of a biological justification issued by relevant scientific organizations, subject to state environmental expertise.;

     4) floating vehicles that are not registered or have registration numbers in accordance with the procedure established by the Law of the Republic of Kazakhstan dated July 6, 2004 "On Inland Waterway Transport";

     5) commercial fishing gear without tags indicating the name of the organization and the parameters of the fishing gear according to the permit for the use of wildlife;

     6) standard fishing gear for the extraction of sturgeon in the sea and rivers;

     7) in a state of alcoholic or narcotic intoxication or other type of intoxication;

     8) in ways that are not permitted by these Fishing Regulations referred to in paragraph 2;

     9) with fishing gear occupying more than two thirds of the width of a river or channel;

     10) with the installation of staggered fishing gear, caves and secrets within a radius of five hundred meters from the mouth of rivers and drains, flowing channels;

     11) at a distance closer than five hundred meters at dams, locks and bridges during commercial fishing;

     12) in places of concentration and on migration routes of fish resources and other aquatic animals during their breeding season, in places and within the time limits established by the authorized body on the basis of a biological justification issued by relevant scientific organizations, subject to state environmental expertise;

     13) using explosive devices, chemical and toxic substances, as well as firearms;

     14) using types of fishing gear and methods not included in the list, without the permission of the authorized body.

     The objective side of Part 4 of the commented article is characterized by repeated actions provided for in Part 3 of Article 383 of the Administrative Code, committed within a year after the imposition of an administrative penalty.

     The objective side of part 5 of the article under study is characterized by actions in the form of water intake from fisheries reservoirs without installing special devices to prevent fish from entering water intake facilities.

     Article 366 of the Criminal Code provides for criminal liability for violation of the rules of operation of water intake facilities and differs from an administrative offense in the consequences in the form of mass death of fish or other aquatic animals, but not because of the lack of fish protection devices.

     According to the Law of the Republic of Kazakhstan dated July 9, 2004 "On the Protection, reproduction and use of wildlife", the mass death of fish resources and other aquatic animals is referred to as starvation. Paragraph 20 of article 1 reads: "overseas is a mass death of fish resources and other aquatic animals caused by a violation of the hydrochemical and other regimes of a reservoir and (or) site.

     A special device based on the Law of the Republic of Kazakhstan "On the Protection, Reproduction and Use of Wildlife" is a fish protection device – a device to prevent fish resources and other aquatic animals from entering water intake and discharge facilities. Based on paragraph 20 of art. 9 The authorized body, its departments with territorial subdivisions and other state bodies of the Republic of Kazakhstan engaged in activities in the field of protection, reproduction and use of wildlife develop and approve requirements for fish protection devices for intake and discharge facilities and coordinate their installation.

     Based on Article 261 of the Environmental Code of the Republic of Kazakhstan dated January 9, 2007 No. 212, water intake from the sea is allowed only if the intake facilities are equipped with fish protection devices. Technical devices should be installed at water intake facilities to continuously monitor the effectiveness of fish protection devices.

     .On the subjective side, administrative offenses provided for in all parts of the article under consideration can only be committed intentionally, the perpetrators are always aware that illegal actions cause damage to fish resources and allow this.

     The subject of the offense in all parts of the commented article may be individuals and all types of legal entities.

     They have the right to impose administrative penalties on the commented article.:

     1) according to Parts 3 and 4 - judges of specialized district and equivalent administrative courts (Part 1 of art. 684 of the Administrative Code);

     2) according to Parts 1 and 2 - chairmen of committees and heads of departments of the Ministry of Internal Affairs, heads of territorial internal affairs bodies, administrative divisions, migration police, local police service of the region, the city of republican significance, the capital, their deputies (paragraph 1, part 2, art. 685 of the Administrative Code);  

     3) according to parts 1 and 2 - employees of the internal affairs bodies (police) with special ranks (paragraph 4, part 2, art. 685 of the Administrative Code);

     4) according to parts 1, 2 and 5 - officials of authorized bodies in the field of forestry, fishing and hunting of the Republic of Kazakhstan and their territorial bodies (paragraph 1 of Part 2 of Article 709 of the Administrative Code);

     5) according to parts 1 and 2 - heads, deputy heads of state forestry institutions (paragraph 2 of Part 2 of Article 709 of the Administrative Code);

     6) according to Parts 1, 2 and 5 - heads, deputy heads, heads of services for the protection of specially protected natural territories established in the organizational and legal form of a state institution (paragraph 4, Part 2, Article 709 of the Administrative Code);

     7) according to Parts 1 and 2 - the Border Guard Service of the National Security Committee of the Republic of Kazakhstan (Part 3 of Article 726 of the Administrative Code);

     If transport is used in the commission of this offense, then on the basis of Article 797 of the Administrative Code, it is allowed to detain, deliver and prohibit the operation of a vehicle, vessel, including a small vessel.

     I have the right to initiate proceedings on an administrative offense under Article 383 of the Administrative Code:

     1) in all parts – internal affairs bodies (police) (Part 1 of Article 804 of the Administrative Code);

     2) in all parts – bodies in the field of forestry, fishing and hunting (Part 9 of Article 804 of the Administrative Code);

     3) according to parts 1-4 - The Border Guard Service of the National Security Committee of the Republic of Kazakhstan (paragraph 44 of Article 804 of the Administrative Code);

     4) according to Parts 3 and 4 - local executive bodies of regions, cities of republican significance, the capital, districts, cities of regional significance (paragraph 50 of Article 804 of the Administrative Code);

     5) in all parts – officials of specialized organizations of authorized bodies in the field of forestry, fishing and hunting (paragraph 2, part 3, Article 804 of the Administrative Code);

     6) according to parts 1-4 - huntsmen, directors of hunting and fishing farms responsible for the protection of wildlife (paragraph 3, part 3, Article 804 of the Administrative Code)

     If transport is used in the commission of the offense in question, then on the basis of Article 797 of the Administrative Code, it is allowed to detain, deliver and prohibit the operation of a vehicle, vessel, including a small vessel.

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.);  

Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     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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