On some issues of application by courts of the environmental legislation of the Republic of Kazakhstan in civil cases
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 25, 2016 No. 8.
The footnote. Throughout the text, the words "individual entrepreneurs without the formation of a legal entity," "individual entrepreneurs without the formation of a legal entity," "individual entrepreneur without the formation of a legal entity," "individual entrepreneur without the formation of a legal entity," "individual entrepreneurs without the formation of a legal entity," are excluded in accordance with the regulatory decision of the Supreme Court RK No. 1 dated 04/15/2021 (effective from the date of the first official publication).
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In order to ensure uniform application by courts of the environmental legislation of the Republic of Kazakhstan in civil cases, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
Environmental legislation is based on the Constitution of the Republic of Kazakhstan and consists of the Environmental Code of the Republic of Kazakhstan (hereinafter referred to as the EC), the Codes of the Republic of Kazakhstan "On the Health of the people and the healthcare system", On Subsoil and Subsoil Use, Land, Forestry and Water, Laws of the Republic of Kazakhstan dated April 23, 1998 No. 219–I "On Radiation safety of the population" (more – Law on Radiation Safety), dated July 16, 2001 No. 242-II "On Architectural, Urban planning and construction activities", dated July 9, 2004 No. 593-II "On the Protection, Reproduction and Use of Wildlife" (hereinafter – the Law on the Protection of Wildlife), dated July 7, 2006 No. 175-III "On Specially Protected Natural Territories" (hereinafter – the Law on Specially Protected Territories) and other regulatory legal acts.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
The rules for the application of the EC in the event of a conflict between its norms and international treaties, as well as other laws of the Republic of Kazakhstan regulating relations in the field of environmental protection, are provided for in paragraphs 2 and 3 of Article 2 of the EC. Environmental legislation regulates relations on protection, reproduction, use, protection of natural objects and protection of human life and health. The concept of environmental protection is given in subparagraph 46) of Article 1 of the EC.
Issues of protection and use of subsurface resources, waters, forests and other natural resources of specially protected natural territories not used in economic activities, animals and plants listed in the Rules of the Red Book of the Republic of Kazakhstan, approved by Resolution of the Government of the Republic of Kazakhstan dated June 2, 2012 No. 734, in the part not regulated by the EC, are regulated by laws on protection of wildlife, on specially protected territories, on subsoil, and other special laws and regulations.
Natural resources in the Republic of Kazakhstan may be in general or special use of natural resources (Article 10 of the EC). The object of environmental management rights should be understood as individually defined parts of natural resources (land, water, forest fund, and so on) that are physically separated (by establishing its boundaries on the ground, "in kind").
In the case of general use of natural resources, the population has the right to make permanent and free use of environmental facilities to meet vital needs, without providing natural resources for separate use, with the exception of restrictions provided for by environmental legislation.
The definition of special environmental management is contained in paragraph 4 of Article 10 of the EC. Emissions into the environment during the conduct of economic and other types of activities are carried out by nature users on the basis of special permits and on paid terms, in accordance with the procedure established by the EC and other legislative acts. Thus, fees for emissions into the environment, as well as mandatory payments for the use of certain types of natural resources, are established by the tax legislation of the Republic of Kazakhstan (paragraph 1 of Article 101, Article 102 of the EC).
Definitions of nature users and their types are contained in subitems 71) of Articles 1 and 11 of the EC, and emissions into the environment are contained in subitem 43) of Article 1 of the EC.
Emissions into the environment are allowed within the established limits, that is, the regulatory volumes of emissions into the environment, established for a certain period and depending on the category of the facility by the authorized body in the field of environmental protection or local executive bodies of regions, cities of republican significance, the capital.
Natural resource users engaged in economic and other activities that result in emissions into the environment, with the exception of the cases provided for in paragraph 1 of Article 69 of the EC, are required to obtain a license and (or) an environmental permit for special use of natural resources, for specific types of emissions, or a comprehensive environmental permit, which are issued by an authorized state body in the field of environmental protection. environment or local executive bodies of the regions, cities of republican significance and the capital on the basis of the submitted application (paragraph 3 of Article 12, Articles 20, 68, 69 and 79 of the EC). Carrying out economic and other activities without an environmental permit (integrated environmental permit) for emissions into the environment or in case of late registration of such a permit entails liability provided for by environmental legislation and is the basis for suspending economic or other activities or suspending the operation of an object that is a source of environmental pollution.
A permit is a set of documents certifying the right of a nature user to emit emissions into the environment, containing information about the nature user himself and the economic and other activities carried out by him, the validity period of the permit, the conditions of environmental management, as well as a plan of environmental protection measures for the period of validity of the permit (subparagraph 98) of Article 1, Article 70 of the EC).
A comprehensive environmental permit is a single document certifying the right of a nature user to carry out emissions into the environment, subject to the introduction of the best available technologies and compliance with technical specific emission standards established by environmental legislation.
Permits (integrated permits) for emissions into the environment are issued for a certain period or indefinitely, depending on the categories of production facilities and types of activity and until changes in the technologies used and environmental management conditions specified in the current permit (Articles 76, 79 of the EC).
According to paragraph 1 of Article 78 of the EC, a permit for emissions into the environment is reissued within fifteen calendar days in the event of a change in the name, reorganization of the nature user, as well as in the event of a change in the owner of the facility(s) in respect of which such an emission permit has been issued, provided that the reissue does not increase the burden on the environment.
Failure by the nature user to fulfill the obligation to reissue an emission permit should be considered as illegal emission into the environment.
The deprivation of a nature user's permit for emissions into the environment can only be carried out in court.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
In accordance with paragraphs 1 and 2 of Article 12 of the EC, the use (withdrawal) of natural resources and the implementation of certain types of environmental protection activities, without emission into the environment, do not require an environmental permit and are carried out on the basis of licenses or permits, decisions of the Government or local executive bodies on the provision of natural resources in accordance with the procedure established by laws., or agreements (contracts) for the use of natural resources, concluded in accordance with the procedure established by legislative acts, within the framework of the right of special use of natural resources.
The concept of environmental pollution is given in subparagraph 48) of Article 1 of the EC.
Types of environmental pollution are: chemical, mechanical (contamination), biological and radioactive (contamination), physical (radiation, acoustic or electromagnetic radiation, vibration and other harmful physical effects).
When applying environmental legislation, it should be borne in mind that legally significant pollution is pollution that exceeds acceptable environmental quality standards or, although it does not exceed them, subsequently causes significant harm to it. The concepts of pollution of individual environmental objects are contained in the legislation.
Environmental quality standards are understood as indicators that characterize the favorable state of the environment and natural resources for human life and health.
The main factors of environmental pollution include:
economic and other activities carried out in violation of established norms and rules in the field of environmental protection;
accidents, catastrophes and natural disasters;
waste disposal on the territory of the country.
The sources of pollution are objects from which harmful substances are emitted into the environment.
When considering this category of cases, it is necessary to find out which type of pollutant emission sources (mobile or stationary) this or that equipment (apparatus, installation, unit) belongs to, based on its purpose, technological characteristics and work performed, physical dimensions and other indicators. So, by analogy with subparagraph 65-3) of Article 1 of the EC, a drilling rig, at least structurally fixed to a vehicle that moves this installation, does not belong to mobile sources, since the installation itself (drilling) occurs when the vehicle stops, that is, in a stationary position.
An environmental offense is defined as an action (inaction) that violates environmental legislation and causes harm to the environment, human health and life, property of individuals and (or) legal entities, the state, or creates a real threat of such harm.
The objects of an environmental offense are public relations in the sphere of interaction between society and nature, management relations in the field of environmental management, relations of ownership and other rights to natural resources as objects of environmental protection from destruction, degradation, damage, pollution and other harmful effects, the environment and its individual components located in it in the natural interrelationship, about which the activities of the subjects of these legal relations arise and are carried out, as well as human life and health, property of individuals and legal entities, interests of the state.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
Any natural and legal persons can be recognized as subjects of pollution (harm-makers): state and non-state, residents and non-residents.
Individuals and legal entities that have caused harm to the environment, the life and health of citizens, the property of individuals and legal entities, or the state as a result of violations of environmental legislation are required to compensate for the damage caused, except in cases of harm caused through no fault of their own in accordance with paragraph 2 of Article 917 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code).
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
Violation of environmental legislation entails property (civil law), administrative, and criminal liability.
According to paragraph 2 of Article 321 of the EC, damage caused to the environment, the health of citizens, the property of individuals and legal entities, and the state as a result of:
destruction and damage of natural resources;
illegal and irrational use of natural resources;
unauthorized emissions;
excess emissions into the environment.
In accordance with subparagraph 42) of Article 1 of the EC, environmental damage is understood to mean environmental pollution or the withdrawal of natural resources in excess of established standards, which has caused or is causing degradation and depletion of natural resources or the death of living organisms.
Cases of excessive waste disposal, excessive discharge of pollutants into facilities equipped and intended for waste disposal and wastewater discharge, as well as cases of chemical substances or wastewater bottling at production sites limited by protective structures preventing contamination of the Earth's surface, subsoil and groundwater are not considered as environmental damage. Unauthorized and excessive emissions do not include cases of deviations from associated gas processing development programs, as well as project documentation and draft emission standards for the environment, including changes in scenarios and (or) schedules for gas combustion submitted by the nature user to the state environmental assessment (hereinafter referred to as GEE) and not involving exceeding the maximum permissible emissions standards. (paragraphs 7, 8 and 9 of Article 321 of the EC).
By virtue of the requirements of paragraph 1 of Article 7 of the Law of the Republic of Kazakhstan dated December 13, 2005 No. 93-III "On Compulsory Environmental Insurance" (hereinafter referred to as the Law on Environmental Insurance), individuals and (or) legal entities engaged in environmentally hazardous types of economic and other activities are not entitled to carry out their activities without concluding a compulsory environmental insurance contract. insurance. If there is more than one owner of an object engaged in an environmentally hazardous type of economic and other activity, the specified contract is concluded with any of them, indicating in the insurance policy all owners of the object as insured.
The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
The concepts of destruction and damage of natural resources and illegal and irrational use of natural resources should be understood by the courts:
destruction and damage of natural resources – based on the degree of danger of socially dangerous consequences, this is a complete loss of their specific economic, commercial, landscape, recreational and ecosystem (water-regulating, soil-protective, climate-forming and other) values, the restoration of which is impossible or requires land reclamation, planting, dredging and other works, or a partial loss of their specific value, allowing it restoration by carrying out works on the planning and tinning of soils from surface pollution, or self-restoration of a natural resource;
illegal and irrational use of natural resources – actions committed without a permit for special use of natural resources, obtained in accordance with the procedure established by Article 12 of the EC, without an agreement (contract), an act for the right to use or own a land plot (contractual territory), a logging ticket or a warrant for secondary forest use; or permitted special use of natural resources, which led to a decrease in the specific value of natural resources due to mismanagement and low technological level.
Definitions of excess emissions and unauthorized emissions are contained, respectively, in sub-paragraphs 56-1) and 61-1) of Article 1 of the EC. At the same time, ships should bear in mind that emissions into the environment, expressed in exceeding the established limits of emissions, discharges and disposal of pollutants, identified during state control by instrumental, analytical or computational methods and not recorded by departmental and industrial control, are also unauthorized emissions into the environment.
The concept of accidental environmental pollution is given in subparagraph 49) of Article 1 of the EC, subparagraph 2) of Article 1 of the Law on Environmental Insurance.
A claim filed in court for compensation for damage caused to the environment must be motivated, contain references to the norms of substantive and procedural law, have evidence of the damage caused and the causal link between the unlawful actions (inaction) of the perpetrator and the damage caused.
When considering cases, the courts should clarify the circumstances indicating the occurrence of harmful consequences. In particular, whether there has been environmental pollution or the withdrawal of natural resources in excess of established standards, which has caused the degradation and depletion of natural resources or the death of living organisms. It is also necessary to take measures to establish other circumstances of the committed environmental offense.
The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
As a general rule, guilt is the basis for bringing to property liability for causing damage to the environment (paragraph 1 of Article 917 of the Civil Code).
In some cases, it is allowed to impose responsibility for damage caused to the environment, regardless of the presence of the fault of the causer. Thus, a subsurface user conducting exploration and (or) production of hydrocarbons at sea is liable in case of marine pollution, regardless of the presence of guilt, unless he proves that the damage was caused by force majeure or intent of the victim (paragraph 8 of Article 154 of the Code on Subsoil and Subsoil Use).
In accordance with paragraph 1 of Article 931 of the Civil Code, paragraph 5 of Article 321 of the EC, individuals and legal entities whose activities are associated with increased danger to the environment also compensate for the damage caused, regardless of their guilt, unless they prove that the damage was caused by force majeure or intent of the victim.
If the policyholder, whose liability is subject to compulsory environmental insurance, is insured as the owner of an object whose activities are associated with the risk of harm to third parties, then the compulsory environmental insurance contract is concluded in terms of insurance of civil liability for environmental damage (paragraph 2 of Article 8 of the Law on Environmental Insurance).
The issue of whether the activities of an individual or a legal entity pose an increased danger to the environment is decided by the court, taking into account the provisions of environmental legislation and, in particular, the Order of the Minister of Energy of the Republic of Kazakhstan dated January 21, 2015 No. 27 "On approval of the List of environmentally hazardous types of economic and other activities".
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
In case of joint damage to the environment by several persons, in accordance with Article 932 of the Civil Code, they are jointly and severally liable. At the request of the plaintiff, it is possible to impose shared responsibility on the perpetrators if such a recovery procedure is in line with the interests of environmental protection and ensures effective and full compensation for the damage caused.
When assigning shared responsibility to the perpetrators, the court should proceed from the degree of guilt of each of them. If it is impossible to determine the degree of guilt of each harm-doer, the amount of liability is established based on the equality of shares. When committing an environmental offense by several persons, the imposition of joint or shared responsibility for the damage caused is allowed only for those episodes in which the joint participation of these persons has been established.
The court has the right, in accordance with paragraph 5 of Article 935 of the Civil Code, to take into account the property status of the causer and reduce the amount of compensation for damage, except in cases where the damage was caused by a legal entity, an individual entrepreneur without forming a legal entity, or intentional actions of an individual.
The authorized body in the field of the environment and specially authorized state bodies in the field of environmental protection may act as plaintiffs in cases of compensation for damage caused to the environment, as well as for the restriction, suspension and termination of economic and other activities of individuals or legal entities that have a negative impact on the environment, human life and health., reproduction and use of natural resources, their territorial subdivisions, state bodies within their competence, individuals and legal entities, prosecutors within the limits of their powers.
Individuals have the right to file lawsuits in court for compensation for damage caused to their life and health, property as a result of violations of environmental legislation, demands for the cancellation of decisions on the placement, construction, reconstruction and commissioning of enterprises, structures and other environmentally hazardous facilities, as well as for the restriction and termination of economic and other activities of individuals or legal entities. which has a negative impact on the environment, human life and health (Article 13 of the EC).
Public associations, by virtue of Article 14 of the EC, have the right to demand the cancellation in court of decisions on the placement, construction, reconstruction and commissioning of enterprises, structures and other environmentally hazardous facilities, on the restriction, suspension and termination of economic and other activities of individuals or legal entities that have a negative impact on the environment, life and human health, file lawsuits in court for compensation for damage caused to the life, health and (or) property of individuals and legal entities, as a result of violations of environmental legislation, as well as in defense of the rights, freedoms and legitimate interests of individuals and legal entities, including an indefinite circle of persons, in matters of environmental protection and the use of natural resources.
In accordance with subparagraph 28) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", plaintiffs (applicants) for claims (applications) for the protection of the rights, freedoms and legitimate interests of individuals and legal entities, including in the interests of an indefinite circle of persons, on environmental protection issues The environment and the use of natural resources are exempt from paying the state fee when filing a claim in court.
The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
Individuals and legal entities have the right to challenge the conclusion of the SEE in court (Article 57 of the EC). The withdrawal (revocation) of a positive GEE opinion is carried out by the issuing authority on the basis of a written request or consent from the nature user. If a violation of the requirements of the environmental legislation of the Republic of Kazakhstan is detected, the withdrawal (revocation) of a positive GEE opinion is carried out in court (paragraph 7 of Article 51 of the EC).
The list of objects subject to mandatory GEE is established by Article 47 of the EC. By virtue of Article 51 of the EC, carrying out activities without a positive GEE report is a violation of environmental legislation.
According to paragraphs 9 and 13 of the Rules for Conducting the State Environmental Assessment, approved by Order No. 100 of the Minister of Energy of the Republic of Kazakhstan dated February 16, 2015, materials submitted for examination in electronic form must contain, among other documents, the results of public opinion consideration. The conclusions of industry expertise carried out by other government agencies, as well as the opinions of external experts, which are advisory in nature, are taken into account.
Disagreements in the implementation of the SEE are dealt with through negotiations or in court (Article 58 of the EC). In resolving such disputes, courts should be guided by environmental legislation, the provisions of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ( Aarhus, June 25, 1998, ratified by the Law of the Republic of Kazakhstan dated October 23, 2000 No. 92-II "On Ratification of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters", hereinafter referred to as the Aarhus Convention).
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
To explain to the courts that for any types of economic and other activities that may have a direct or indirect impact on the environment, life and health of the population, an environmental impact assessment (hereinafter referred to as an EIA) is mandatory, the stages and procedure of which are defined by Chapter 6 of the EC. In accordance with Articles 35 and 38 of the EC, the EIA evaluates the possible consequences of planned economic and other activities for the environment and human health, develops measures to prevent adverse effects (destruction, degradation, damage and depletion of natural ecological systems and natural resources), and to improve the environment, taking into account the requirements of environmental legislation.
The EIA is carried out by individuals and legal entities that have received a license to perform work and provide services in the field of environmental protection. The organization and financing of the EIA work is provided by the customer (initiator) of the planned activity.
According to the Rules of Public hearings, approved by the Order of the Minister of Environmental Protection of the Republic of Kazakhstan on May 7, 2007 No. 135-p, public hearings on the discussion of EIA materials are held in the form of an open meeting or a survey. The customer (initiator) of the planned management, economic and other activities preliminarily coordinates with the local executive authorities the time and place of the public hearings and publishes an announcement in the mass media about the public hearings, indicating the time and place of their holding.
The announcement must be published in the state and Russian languages 20 days before the date of the public hearing.
In accordance with Article 57-2 of the EC, for projects whose implementation may directly affect the environment, life and health of the population, and in the production of GEE, it is mandatory to hold public hearings, the organization, procedure and recording of the results of which are within the competence of local executive bodies (Article 20 of the EC).
The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
By virtue of article 14 of the EC, public associations, when carrying out activities in the field of environmental protection, have the right to receive timely, complete and reliable environmental information from state bodies and organizations, in accordance with articles 163, 164 and 165 of the EC. Environmental information is provided in accordance with the Law of the Republic of Kazakhstan dated January 12, 2007 No. 221-III "On the procedure for Considering Appeals from Individuals and Legal Entities" and the Rules for the Provision of public services "Provision of Environmental Information", approved by Order of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated June 2, 2020 No. 130.
According to article 17 of the Law of the Republic of Kazakhstan dated March 15, 1999 No. 349-I "On State Secrets", information on the state of the environment is not subject to secrecy.
State bodies, at the request of the public to provide environmental information, must provide it taking into account the requirements of Chapter 21 of the EC, the Law of the Republic of Kazakhstan dated November 16, 2015 No. 401-V "On Access to Information" and Article 4 of the Aarhus Convention. Interested parties also have the right to obtain relevant environmental information from the State Environmental Information Fund in accordance with the Rules for Maintaining the State Environmental Information Fund, approved by Resolution No. 589 of the Government of the Republic of Kazakhstan dated October 13, 2016.
The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
When considering this category of cases, the courts should keep in mind that the provisions of article 9 of the Aarhus Convention are applicable to disputes about access by members of the public (individuals and/or legal entities) regarding:
violations of the public's right to access environmental information;
violations of the right to public participation in the decision-making process on planned economic activities (within the framework of the EIA and SEE procedures);
appeals against decisions, actions (inaction) of state and non-state bodies, organizations, and individuals related to violations of environmental legislation.
Due to the requirements of Articles 126, 1017 of the Civil Code (on official and commercial secrets, undisclosed information), the applicant may be refused to provide information about the plant's capacity, raw material base, number of work shifts, financing of environmental protection measures and other data. Refusal to receive environmental information regarding information and data with limited access may also be based on the following legislative acts: the Criminal Procedure Code of the Republic of Kazakhstan (secrecy of operational investigative activities, inquiry and preliminary investigation), Laws of the Republic of Kazakhstan dated March 19, 2010 No. 257-IV "On State Statistics" (guarantees to individuals confidentiality of primary statistical information to legal entities), dated November 24, 2015 No. 418-V "On Informatization" (violation of privacy).
In accordance with Article 288 of the EC, individuals and legal entities whose activities are related to the generation of production and consumption waste are responsible as owners for the safe handling of waste from the moment of its formation, unless otherwise provided by legislation or an agreement defining the conditions for waste management. They are required to comply with environmental and sanitary-epidemiological requirements and carry out measures for the storage, disposal, neutralization, placement or safe disposal of waste in storage areas. The terms of safe storage of waste before their recovery or processing or burial are determined by paragraph 3 of Article 288 of the EC.
The concept of temporary waste disposal is given in subparagraph 30-1) of Article 1 of the EC. The courts should bear in mind that, according to paragraph 3-1 of Article 288 of the EC, temporary waste disposal is not waste disposal. Violation of the shelf life of such waste entails its recognition as deposited from the moment of its formation.
Environmental legislation imposes on waste owners the obligation to use a centralized waste collection system or the services of entities that meet the qualification requirements, perform operations for the collection, disposal, processing, storage, placement or disposal of waste, or independently carry out operations for the placement or disposal of waste. The transfer of waste by the owner to such entities means at the same time the transfer of ownership of waste to them, unless the parties have concluded an agreement on other terms.
The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
Individuals and legal entities performing waste collection, disposal, processing, storage, placement or disposal operations and transporting waste received from third–party organizations are responsible for their safe handling from the moment their owner transfers the waste - loading the waste onto their vehicle and receiving it by an individual or legal entity, and before unloading the waste at the designated location from the vehicle, unless otherwise provided by law or agreement.
In cases of transfer of production and consumption waste to organizations that do not have the total rights to perform operations for the collection, disposal, processing, storage, disposal or disposal of waste, the obligation to pay fees for emissions into the environment is assigned to the persons whose activities generate such waste.
The responsibility of the owners of production and consumption waste, as well as entities performing operations for collecting, transporting, disposing, processing, storing, disposing or disposing of waste in each specific case is determined depending on the type and degree of danger of waste in accordance with the procedure established by the EC.
Courts should bear in mind that, within the meaning of Article 297 of the EC, the scope and amount of liability is affected by the implementation by business entities of environmental measures, including financial measures aimed at waste disposal and reducing their generation.
The footnote. Paragraph 22 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
In accordance with Article 101 of the EC, the fee for emissions into the environment, including for the disposal of production and consumption waste, is established and charged according to the rules established by Chapter 69 of the Tax Code for emissions into the environment in the order of special nature management.
Emissions into the environment without an environmental permit issued in accordance with the established procedure are considered as emissions into the environment in excess of established standards, with the exception of emissions of pollutants from mobile sources.
The fulfillment of tax obligations to pay for emissions into the environment does not exempt the nature user from compensation for damage caused to the environment (paragraph 5 of Article 101 of the EC).
The footnote. Paragraph 23 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
In determining the economic assessment of environmental damage, the courts, in accordance with paragraph 1 of Article 108 of the EC, must proceed from the cost of environmental restoration and the consumer properties of natural resources.
The economic assessment of damage from pollution of atmospheric air and water, land resources, as well as from the disposal of production and consumption waste is determined by direct or indirect methods in accordance with Articles 108, 109 and 110 of the EC, Rules for the Economic Assessment of Damage from Environmental Pollution, approved by Resolution of the Government of the Republic of Kazakhstan dated June 27, 2007 No. 535 (hereinafter – Rules for damage assessment) and other legal acts, depending on whether it is possible to completely eliminate the consequences of the damage caused by measures to restore the environment (paragraph 3 of Article 108 of the EC).
When assessing the cost of damage caused to the environment and public health, to the property of individuals and legal entities, to the state, as well as to verify the calculations submitted by the parties, the courts must apply the standards and taxes established by the Rules for Damage Assessment in relation to each specific environmental object. If the procedure for calculating damage is not regulated by a special regulatory legal act, its amount is determined based on the actual costs of restoring the disturbed state of the environment, taking into account the losses incurred, including lost profits.
In particular, the economic assessment of damage caused by unauthorized extraction of common minerals (sand, gravel, clay, and others, hereinafter referred to as OPI) is determined in ten times the value of the extracted minerals and (or) the manufactured commodity product obtained from them.
In case of doubts about the correctness of the calculations submitted or if there are objections from one of the parties, the court may, in accordance with Articles 77 and 82 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), involve a specialist or appoint an appropriate forensic examination in order to verify and eliminate contradictions.
The assessment of damage caused by a nature user without proper authorization should be calculated separately for each source of pollution using the appropriate coefficient of the Damage Assessment Rules.
In accordance with the Rules for Damage Assessment, the results of instrumental measurements and analyses indicating that the established emission standards (discharges) of pollutants are exceeded are extended for the period from the last inspection conducted during the state environmental control to the expiration of the limitation period.
It should be borne in mind that the calculation of the damage assessment is not subject to a separate appeal in civil proceedings, since the calculation is evidence to be assessed in conjunction with other evidence in the case in accordance with the procedure provided for in Chapter 7 of the CPC.
The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
The direct method of economic damage assessment is determined taking into account the actual costs and the most effective engineering, organizational, technical and technological measures necessary to restore the environment, replenish degraded natural resources and improve the health of living organisms.
The collection and analysis of necessary materials and the establishment of an economic assessment of the damage caused are carried out by officials of the authorized body in the field of environmental protection within one month from the date of the establishment of the damage. A person who has caused damage to the environment must provide a letter of guarantee indicating specific measures to restore the environment and the timing of their implementation. The assessment of measures to eliminate the consequences of damage is determined by their market value or taking into account the opinion of an independent expert authorized to conduct environmental expertise.
Within the meaning of Article 110 of the EC and paragraph 4 of the Damage Assessment Rules, when determining the possibility of completely eliminating the damage caused by environmental restoration measures, courts should take into account only the direct method of economic damage assessment in order to immediately take measures to eliminate the consequences of pollution and mandatory preventive measures to prevent environmental pollution and damage in any case. in other forms.
At the stage of preparing a case for trial on disputes on the application of environmental legislation, where the economic assessment of damage to the environment is determined by a direct method, it is necessary for the courts to explain to the parties the provisions of Article 322 of the EC, by virtue of which, with the consent of the parties, by court decision, the damage can be compensated voluntarily, in kind by imposing on the defendant responsibilities for the elimination of environmental damage.
The indirect method of economic damage assessment is used in cases where the direct method of economic damage assessment cannot be applied: pollution of atmospheric air, water resources, as well as the disposal of industrial and consumer waste, including radioactive waste, excess standards and excess withdrawal of natural resources. Thus, the ingress of wastewater with harmful substances into the river involves the use of an indirect method of assessing environmental damage, and the ingress of such waters into the area adjacent to the reservoir is a direct method.
The economic assessment of damage by the indirect method is determined in accordance with the procedure established by paragraph 2 of Article 110 of the EC, and is based on the difference between the actual environmental impact and the established standard, as well as on the rates of payment for emissions into the environment, levels of environmental hazard and environmental risk.
To draw the attention of the courts to the need to distinguish the responsibility of the nature user for evading payment of mandatory environmental payments, from responsibility for damage to the environment.
A person who has caused harm to the life and health of individuals, damage to the property of individuals and legal entities, the state or the environment has the right, voluntarily or by court order, to eliminate the harm or damage caused or to compensate them in monetary terms at the expense of his own or insurance funds to the condition existing at the time of the harm or damage, to carry out measures for the reproduction of natural resources. to compensate the plaintiff for losses, including lost profits, or by transferring funds to the state budget or directly to the injured person. The damage caused to the life and health of an individual is compensated in full, taking into account the degree of disability of the victim, the cost of his treatment and restoration of health, the cost of caring for the patient, other expenses and losses. Thus, paragraph 1 of article 21 of the Law on Radiation Safety provides for the right of citizens to compensation for damage caused to their life and health, and to compensation for property losses caused by exposure to ionizing radiation beyond the established limits or as a result of a radiation accident in accordance with the legislation.
If the person responsible for causing damage to the environment is unable to execute a judicial act to restore the natural environment in kind to the condition it was at the time of the damage, to provide an equivalent natural resource to replace the destroyed or damaged one, or to compensate it in monetary form, then the court that issued the decision or the court at the place of execution of the decision may, in accordance with Article 246 of the CPC, at the request of the bailiff and (or) at the request of the parties to the enforcement proceedings, change the method and procedure for its execution.
The footnote. Paragraph 26 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
Explain to the courts that cases concerning appeals against decisions, actions (inaction) of officials of the authorized body in the field of environmental protection, specially authorized bodies in the field of environmental protection, protection, reproduction and use of natural resources, as well as local representative and (or) executive bodies, local self-government bodies on issues related to environmental legislation, including in the protection of the interests of an indefinite circle of persons, state bodies within their competence, legal entities, as well as the prosecutor – in the cases provided for in the second paragraph of the first part of Article 292 of the CPC, specialized interdistrict economic courts are subject to jurisdiction, with the exception of cases provided for in the fourth part of Article 27 and subparagraph 2) of Article 28 of the CPC.
If, according to the results of the control, no protocol on an administrative offense has been drawn up, an order to eliminate violations of environmental legislation is subject to appeal in accordance with Chapter 29 of the CPC.
In accordance with article 126 of the EC, the requirement for mandatory compliance with the procedure for pre-trial settlement of issues related to appealing decisions, actions (inaction) of officials applies only to decisions, actions (inaction) of officials exercising state environmental control.
If the plaintiff (the applicant in accordance with Chapter 29 of the CPC) has not complied with the pre-trial dispute settlement procedure established by law for this category of cases and the possibility of applying this procedure has not been lost, then in accordance with subparagraph 1) of the first part of Article 152 of the CPC, the judge returns the statement of claim to the plaintiff.
If such a statement of claim is accepted, it is subject to dismissal on the basis of subparagraph 1) of Article 279 of the CPC.
The footnote. Paragraph 27 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
Explain to the courts that an environmental dispute is a dispute over the assessment of decisions taken and implemented measures related to environmental protection in the course of economic, managerial and other activities, including the placement of facilities, conclusions of the state environmental assessment, suspension, restriction or termination of enterprises, the amount of payment for emissions into the environment, compensation for damage caused to human health and the environment as a result of violations of environmental legislation.
According to the norms of Chapter 46 of the EC, environmental disputes between subjects of environmental legal relations can be resolved through negotiations, including with the involvement of experts or in accordance with a dispute resolution procedure previously agreed upon by the parties. Thus, disputes related to the execution, modification or termination of a contract in the field of subsurface use can be resolved through negotiations (Article 78 of the Code "On Subsurface and Subsurface Use"). A dispute resolution procedure agreed upon by the parties means that a dispute can be resolved in accordance with the terms of an agreement, legislative acts, or an international agreement.
When resolving disputes involving legal entities and individuals, courts must require the plaintiff to provide evidence of compliance with the pre-trial dispute resolution procedure.
In the reasoning part of the decision, the courts should make references to the norms of current legislation, indicating the specific obligation imposed on the nature user by the relevant EC standards, the failure of which was the basis for recognition as an offense.
Explain to the courts that when satisfying claims for damages in the operative part of the decision, it is necessary to indicate the recovery of the amount of damage to the state revenue, the details of the tax authority at the location of the emission source, or the recovery of the amount of damage to the republican budget, with the exception of funds received from natural resource users for claims for damages by organizations of the oil sector, which are subject to transfer to The National Fund of the Republic of Kazakhstan.
The footnote. Paragraph 28 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
When considering claims of individuals and public associations for the restriction, suspension and termination of economic and other activities of individuals and legal entities that have a negative impact on the environment, human life and health, the basis for satisfying such claims is, first of all, the establishment of the very fact of such a negative impact.
When deciding to satisfy claims for the suspension, restriction or termination of environmentally harmful activities, the courts should keep in mind that the suspension, restriction or termination of negative effects is possible not only as a result of the closure of the facility, but also by imposing on the defendant the obligation to take actions aimed at eliminating the source of harmful effects: repairs, reconstruction, installation of new sewage treatment plants, introduction of new production technologies, changes in environmental management conditions, etc., with a mandatory indication of the time period during which the defendant is obliged to eliminate violations of the requirements of environmental legislation.
The footnote. Paragraph 29 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
The court does not accept the plaintiff's waiver of the claim if the evidence available in the case indicates the existence of grounds and conditions for bringing the defendant to property responsibility for committing an environmental offense, except in cases where the violator voluntarily compensated the damage in full, and in cases involving forced collection of payments for the use of environmental facilities.
To draw the attention of the courts to the fact that the current environmental legislation does not provide for the possibility of reducing the amount of payments payable for the use of an environmental facility.
Disputes considered by way of special claim proceedings under the rules of Chapter 29 of the CPC are not subject to termination in connection with the conclusion by the parties of a settlement agreement or agreements by the parties on the settlement of a dispute (conflict) through mediation or a participatory procedure.
The footnote. Paragraph 30 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).
The courts should thoroughly investigate the circumstances contributing to the violation of environmental legislation and make specific rulings in accordance with the procedure provided for in Article 270 of the CPC.
In connection with the adoption of this regulatory resolution, to invalidate the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000 No. 16 "On the practice of courts applying legislation on environmental protection".
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
Chairman
The Supreme Court
Republic of Kazakhstan
Judge
The Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
K. MAMIE
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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