On the application by courts of legislation on liability for certain environmental criminal offenses
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 1.
The footnote. The title is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The footnote. Throughout the text, the words "crimes", "crimes", "crime" are replaced, respectively, by the words "criminal offenses", "criminal offenses", "criminal offense" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In order to ensure the correct and uniform application by the courts of legislation on environmental criminal offenses, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In order to ensure the correct application of the law when considering cases of environmental criminal offenses, the courts should, in each specific case, find out which environmental requirements and (or) rules should have been observed when carrying out economic and other activities, producing, storing and using environmentally hazardous substances, and performing other actions (water, hunting, felling trees and shrubs and others), as well as by what normative legal acts these requirements and rules are established, bearing in mind that the norms of the criminal law, The documents establishing responsibility for the commission of environmental criminal offenses are blank.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The subjects of environmental criminal offenses may be any individuals, including persons authorized to perform government functions and persons equivalent to them, officials, as well as persons holding a responsible government position and persons performing managerial functions in state and non-state, commercial or non-profit organizations.
In cases where environmental criminal offenses are committed by a person authorized to perform government functions and persons equivalent to them, an official, as well as a person holding a responsible government position or a person performing managerial functions in a commercial or non-profit organization, if there are also signs of abuse of official authority or authority of a person performing managerial functions in their actions. functions in a commercial or non-profit organization, Their actions should be qualified under the relevant articles of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), which provide for liability for both environmental criminal offenses, corruption and other criminal offenses against the interests of public service and public administration, or criminal offenses against the interests of service in commercial and other organizations.
If, according to the norm of the criminal law, the commission of an act by the perpetrator using his official position is provided for as a qualifying sign of an environmental criminal offense, then responsibility comes only under the article (part of the article) of the Criminal Code, which provides for liability for environmental criminal offenses.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In order to properly resolve issues requiring special knowledge in the field of ecology, the courts must, in accordance with articles 270, 271, 272, 273 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), Chapter eight of the Environmental Code of the Republic of Kazakhstan (hereinafter referred to as the EC), involve specialists in the case or appoint appropriate environmental expertise.
The footnote. Paragraph 3 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 22 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
When clarifying the issue of whether the territory within which a criminal offense related to violation of environmental legislation has been committed is a specially protected natural territory or an area with an environmental emergency (part two of Articles 325, 326, 328, 332, paragraph 6) of part three of Article 335, paragraph 1) of part four of Article 337 paragraph 4) of the third part of Article 340 of the Criminal Code) should be based on the provisions of the EC and the Law of the Republic of Kazakhstan dated July 7, 2006 No. 175 "On Specially Protected Natural Territories", which establish and define the legal, economic, social and organizational foundations of the activities of specially protected natural areas.
The footnote. Paragraph 4 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 22 (for the procedure of entry into force, see paragraph 2); as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Illegal felling, destruction or damage of trees and shrubs should be understood as the felling of trees and shrubs in the state forest fund of the Republic of Kazakhstan, including those damaged and killed as a result of natural, anthropogenic and man-made factors: without a logging ticket; according to a logging ticket made in violation of the rules of logging in areas of the state forest fund; committed with violation of the deadlines set in the logging ticket; logging in excess of the estimated cutting area and other violations of the rules established by subparagraph 9) of paragraph 1 of Article 113 of the Forest Code of the Republic of Kazakhstan and other regulatory legal acts.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
When determining the amount of environmental damage caused by illegal logging, destruction or damage to trees and shrubs, it should be clarified whether damage to trees and shrubs is associated with the cessation of their growth, whether their logging was prohibited, and other circumstances.
The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
It should be noted that when determining environmental damage from illegal logging, destruction or damage of trees and shrubs, not only the monetary value of felled or damaged trees and shrubs is taken into account. In cases where illegal logging, destruction or damage to trees and shrubs has caused other environmental damage (drying up of reservoirs, death of grasses and other vegetation, disappearance of animals, birds, beneficial insects in a given area, etc.), environmental damage is determined based on an assessment of the elimination of environmental damage or restoration of consumer properties of natural resources.
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Repeated illegal felling of trees and shrubs should be understood as committing such acts two or more times, if the person has not been convicted of any of them.
The repeated felling of several trees and shrubs cannot be recognized if it is established that the felling of all trees and shrubs was covered by a single intent. The felling of individual trees and shrubs, committed at different times, when the actions of the perpetrator were characterized by an independent intent that arose during the felling of each tree and shrub separately, qualifies as repeated.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of its official publication).
Cutting down trees and shrubs growing on agricultural lands, with the exception of forest protection plantations, on private country and garden plots, windbreaks, windbreak trees, on lands granted to private ownership by individuals and non-governmental legal entities for afforestation, etc., does not constitute an environmental criminal offense, unless specifically provided for by law. Legally felling trees and shrubs growing on the specified lands with their subsequent gratuitous appropriation, as well as taking possession of legally felled trees in forests prepared for storage, sale or export, should be qualified as theft of other people's property.
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The subject of illegal hunting is the species of animals related to the objects of hunting and listed in paragraph 2 of Article 582 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget (Tax Code).
Illegal hunting should be considered the removal of animal species that are the object of hunting from their habitat without an appropriate permit or contrary to a special ban, or by a person who does not have the right to hunt or illegally obtained a hunting permit, or hunting outside designated areas, within prohibited time limits, with prohibited tools and methods, or in violation of other requirements, established by paragraph 5 of Article 38 of the Law of the Republic of Kazakhstan dated July 9, 2004 No. 593 "On the Protection, Reproduction and Use of Wildlife" (hereinafter - the Law on the Protection of Wildlife).
The search, tracking and harassment for the purpose of extraction, an attempt to obtain objects of the animal world, the presence in hunting grounds of persons with uncovered hunting weapons and other hunting tools or with hunting products, with hunting dogs released from a leash, and hunting birds of prey committed in violation of the above requirements, should be recognized as illegal hunting regardless of, whether objects of hunting products were actually extracted.
The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The use of aircraft, motor vehicles, including snowmobiling equipment, or small vessels in illegal hunting (part one of Article 337 of the Criminal Code) should be understood as the use of such means as an instrument of a criminal offense.
The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective ten calendar days after the date of its first official publication).
11-1. When illegal hunting is committed by a group of persons or by a group of persons by prior agreement (part three of Article 337 of the Criminal Code), the perpetrators of the offense are those who search, track, harass and prey animals, who carried out their primary processing and (or) transportation.
Persons who assisted illegal hunting by giving advice, instructions, providing information, hunting tools, vehicles, or removing obstacles to its commission, as well as a person who promised in advance to conceal the perpetrator, tools, or other means of committing a criminal offense, traces of this act, or items obtained unlawfully, as well as acquiring, storing, or selling illegal products. hunting according to a promise made in advance, are brought to criminal responsibility as accomplices with reference to the fifth part of Article 28 of the Criminal Code, provided, that they were reliably aware of the illegality of hunting.
The footnote. The regulatory resolution was supplemented by paragraph 11-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective ten calendar days after the date of its first official publication).
If illegal hunting using explosive devices or other means of mass destruction of animals, the extraction of aquatic animals and plants were committed using illegally acquired, manufactured or stored firearms (except smoothbore hunting), ammunition or explosives and explosive devices, the actions of the perpetrator are subject to qualification under a set of articles providing for liability for environmental criminal offenses. and for the illegal acquisition, storage, carrying of firearms, ammunition (Article 287 of the Criminal Code).
The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Illegal extraction of fish resources, other aquatic animals or plants should be understood as such extraction, which was carried out without proper permission or at a prohibited time or in unauthorized places, or in a prohibited manner, or in violation of other requirements established by paragraph 5 of Article 39 of the Law on the Protection of Wildlife.
Criminal liability under Article 335 of the Criminal Code for such actions occurs if they are committed:
causing significant damage;
with the use of explosives and chemicals, electric current or other methods of mass destruction of fish resources and other aquatic animals and plants.
Other cases of illegal extraction of aquatic animals or plants entail administrative liability.
The footnote. Paragraph 13, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 22 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The actions of persons guilty of illegal fishing of fish, aquatic animals raised by enterprises and organizations in specially constructed or adapted reservoirs, or taking possession of fish, aquatic animals captured by these organizations or kept in nurseries, as well as taking possession of wild animals, birds in aviaries, are subject to qualification as theft of other people's property.
The issue of significant, large-scale or especially large-scale environmental damage in cases of illegal aquatic fisheries, hunting, and deforestation should be resolved taking into account the quantity, cost, and ecological value of illegally caught fish, aquatic animals, game, felled or damaged trees, as well as other environmental damage caused to wildlife.
At the same time, it is necessary to proceed not only from the quantity and cost of the extracted, but also to take into account the environmental damage caused to the animal and plant world as a whole, in particular, during the destruction of plants or animals prohibited from use, during illegal hunting, destruction of spawning grounds; the death of a large number of fry; during illegal occupation of aquatic extractive fishing, trapping or destruction of animals and plants listed in the Red Book of the Republic of Kazakhstan.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Criminal offenses provided for in Articles 335, 337 of the Criminal Code are considered completed from the moment the stalking, harassment, extraction, and fishing begin, regardless of whether fish, aquatic or other animals, or plants were actually harvested. In cases where a mandatory feature of a criminal offense is the infliction of significant or major environmental damage, the final composition of the criminal offense may occur only upon the actual occurrence of such environmental damage.
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); as amended by the Resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The operation of industrial, agricultural, municipal and other facilities with faulty sewage treatment plants and devices, shutdown of sewage treatment plants and devices, violation of the rules of transportation, storage, use of mineral fertilizers and preparations, commission of other actions to pollute, clog and deplete water entail criminal liability if this has caused or could have caused significant, major or particularly serious major environmental damage to the environment or other consequences specified in Article 328 of the Criminal Code.
The footnote. Paragraph 17, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Significant environmental damage to the environment (part one of Articles 325, 326, 328, paragraph 1) of part one of Article 335, part three of Article 337 and part one of Article 342 of the Criminal Code) should be understood as harm to human health, significant deterioration of the quality of the environment, recreation areas, the occurrence of mass animal diseases, reduction or destruction in significant volume of fish stocks, other aquatic plants and organisms, disease and death of plants and forests, significant deterioration of land fertility, mass human disease, as well as other consequences, the elimination of which requires costs in excess of one hundred monthly calculation indices.
Under major environmental damage to the environment (part one of Article 324, part two of Articles 325, 326, 328, part one of Articles 329, 330, 332, 333, 334, part four of Article 335, paragraph 4) of part four of Article 337, article 338, paragraph 3) of part three of Article 340, part one articles 341 and part two of Article 343 of the Criminal Code) it is necessary to understand the infliction of such environmental damage, in which the cost expression of the costs necessary to eliminate environmental damage or restore the consumer properties of natural resources is set at the amount of, exceeding one thousand monthly calculation indices.
Under particularly large environmental damage to the environment (part two of Article 324, part three of Articles 325, 326, 328, part two of Articles 329, 330, 332, 333, 334, and the third part of Article 343 of the Criminal Code) should be understood as causing environmental damage, in which the cost expression of the costs necessary to eliminate environmental damage or restoration of the consumer properties of natural resources has been established in an amount exceeding twenty thousand monthly calculation indices.
The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication). 19. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Causing harm to human health as a mandatory socially dangerous consequence of certain types of environmental criminal offenses (articles 324, 325, 326, 328, 329, 330, 332, 333, the second part of Article 343 of the Criminal Code), it is necessary to understand the infliction of minor harm to health, regardless of whether it caused the loss of a person's ability to work, or causing serious or moderate harm to health.
The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication). 21. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
A claim for compensation for material damage caused by a criminal offense related to a violation of environmental legislation may be filed from the moment the pre-trial investigation begins until the end of the judicial investigation, if environmental damage was directly caused by a criminal offense or a criminally punishable act of an insane person.
A waiver of a claim in writing or in the form of an electronic document may be accepted by the court with a ruling at any time during the trial, but before the court is removed to the deliberation room for sentencing.
If a civil claim has not been filed in a criminal case, interested persons have the right to file it in civil proceedings (Articles 166, 167, 169 of the CPC).
If the causer of environmental damage is an enterprise, institution, or organization whose activities are associated with increased danger to the environment, their liability for compensation for environmental damage occurs regardless of the form of guilt, unless it is established that the environmental damage occurred due to force majeure or intent of the victim.
The footnote. Paragraph 22, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 22 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
The environmental damage caused by the violator is calculated and compensated by the guilty person in full, regardless of whether the damage was caused as a result of intentional actions (inaction) or negligence, in accordance with the norms of the Civil Code of the Republic of Kazakhstan, Section five of the EC, the Law on the Protection of Wildlife, orders of the Ministry of Agriculture of the Republic of Kazakhstan dated February 27. 2015 No. 18-03/158 "On approval of the amount of compensation for damage caused by violation of the Legislation of the Republic of Kazakhstan in the field of environmental protection, reproduction and use of wildlife", dated May 31, 2007 No. 441 "On approval of base rates for calculating the amount of damage caused by violation of the forest legislation of the Republic of Kazakhstan" on the basis of taxes and methods for calculating the amount of damage specified in the regulatory legal acts in force at the time of the harm, and in their absence - at the actual cost to eliminate environmental damage or restore the consumer properties of natural resources, taking into account the losses incurred.
Damage caused to health or property as a result of violation of environmental legislation is subject to full compensation, taking into account the degree of disability of the victim, his costs of treatment and restoration of health, patient care, other expenses and losses. The severity of harm to health is determined on the basis of the conclusion of the relevant medical commissions (examinations).
The footnote. Paragraph 23 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 22 (for the procedure of entry into force, see paragraph 2); dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Courts should keep in mind that the amounts of compensation for environmental damage caused by environmental criminal offenses are collected to the State's income, and in cases of environmental damage directly to an individual or legal entity - in their favor.
The footnote. Paragraph 24 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Illegally obtained products (animals, poultry, fish, furs and other animal products) are subject to seizure. If it cannot be withdrawn (used or sold by the offender, became unusable, etc.), its value, determined by the rates of payments for the use of wildlife, must be recovered from the defendant. The amounts earned from the sale of products obtained as a result of the commission of an environmental criminal offense are not subject to offset against compensation for environmental damage, but are transferred or recovered from the offender to the state's income as property obtained by criminal means.
Timber or products of other types of forest management (oleoresin, tree juices, secondary wood resources) harvested illegally is subject to seizure and transfer to the balance sheet of a state institution or an institution of a specially protected natural area with the status of a legal entity operating at the place of investigation or at the place of consideration of the case by the court.
The footnote. Paragraph 25 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); dated 12/22/2022 No. 10 (effective from the date of the first official publication).
Devices, means, implements and other objects used to commit illegal hunting, illegal fishing and other environmental criminal offenses must be recognized as material evidence - means or instruments of a criminal offense and are subject to confiscation by the court to the state's income in accordance with the requirements of part three of Article 118 of the CPC on the basis of paragraph 4) of part two of the article 48 CC.
The footnote. Paragraph 26 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective ten calendar days after the date of its first official publication).
When considering cases against persons convicted of violating environmental legislation using their official position, it is necessary, in accordance with article 50 of the Criminal Code, to consider depriving them of the right to hold certain positions or engage in certain activities. At the same time, if the specified additional punishment is not provided for by the sanction of the relevant article of the Special Part of the Criminal Code, then when it is imposed, a reference to article 50 of the Criminal Code must be made in the sentence.
The footnote. Paragraph 27 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/22/2008 No. 22 (for the procedure of entry into force, see paragraph 2); dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In order to distinguish a criminally punishable act from an administrative offense, special attention should be paid to clarifying all the circumstances characterizing the composition of an environmental offense, in particular, the method of its commission, the consequences of the illegal act, the amount of environmental damage or environmental damage caused, and other circumstances, bearing in mind that if the act of the perpetrator simultaneously falls under the scope of both both criminal and administrative laws, then in accordance with the third part of Article 19 of the CPC, it cannot be considered as a criminal offense.
The footnote. Paragraph 28 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/22/2022 No. 10 (effective from the date of the first official publication).
When considering criminal cases, courts should carefully examine the circumstances related to clarifying the causes and conditions contributing to violations of environmental legislation, identify specific shortcomings and omissions in the activities of government agencies, public organizations, business entities, facts of misconduct by individual officials, which made violations of environmental legislation possible, and, if necessary, make private judgments. resolutions.
The footnote. Paragraph 29 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 22 (for the procedure of entry into force, see paragraph 2).
In connection with the adoption of this resolution, to invalidate the resolution of the Plenum of the Supreme Court of the Kazakh SSR No. 12 dated March 28, 1986 "On the practice of applying legislation on nature protection by courts" with amendments and additions made by Resolution of the Plenum No. 1 dated March 31, 1989.
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
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