of November 30, 2017 No. 49
About some questions of application of the legislation on indemnification caused to the environment
The right of everyone to the favorable environment is recognized and guaranteed by the Constitution of the Russian Federation (Article 42).
One of the most important means of environmental protection and providing the right of citizens to its favorable condition is assignment on person which did harm, obligations on its compensation in full and also obligations to suspend, limit or stop the activities creating danger of damnification in the future. Thereby taking measures to recovery of state of environment, the economic and (or) other activity subjected to negative impact, and the prevention of violation of nature protection requirements and damnification is provided to the environment in the future.
For the purpose of the ensuring the correct and uniform application by courts of the legislation establishing obligation on indemnification, caused to the environment, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:
1. Indemnification, caused to the environment, is performed according to the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation), the Land code of the Russian Federation, the Forest code of the Russian Federation (further - LX of the Russian Federation), the Water code of the Russian Federation (further - VK Russian Federation), the Federal Law of January 10, 2002 No. 7-FZ "About environmental protection" (further - the Law on environmental protection), other laws and regulatory legal acts on environmental protection and on environmental management.
By consideration of such disputes courts should consider the principles of environmental protection on which economic and other activity shall be based. The paid nature of environmental management and indemnification to the environment belong to their number according to article 3 of the Law on environmental protection, in particular, the presumption of ecological danger of the planned economic and other activity, obligation of environmental impact assessment in case of decision making about implementation of economic and other activity, admissibility of impact of economic and other activity on the environment proceeding from requirements in the field of environmental protection, or can lead obligation of financing by the legal entities and individual entrepreneurs performing economic and (or) other activity which brings to environmental pollution, measures for prevention and (or) reduction of negative impact on the environment, elimination of effects of this impact.
2. According to article 75 of the Law on environmental protection for violation of the law in the field of environmental protection property, disciplinary, administrative and criminal liability is established.
Not involvement of person to administrative, criminal or disciplinary responsibility does not exclude possibility of assignment of obligation on it on indemnification to the environment. Similarly involvement of person to administrative, criminal or disciplinary responsibility is not the basis for release of person from obligation to eliminate the allowed violation and to compensate the harm done to them.
3. With the requirement about indemnification, authorized bodies of the government of the Russian Federation caused to the environment, having the right to address, subjects of the Russian Federation, the prosecutor, citizens, the public associations and non-profit organizations performing activities in the field of environmental protection (Article 45, 46 CCP of the Russian Federation, article of 53 AIC of the Russian Federation, Article 5, 6, 11, 12, 66 Laws on environmental protection), and also local government bodies, taking into account the fact that the paragraph the sixth article 3 of the Law on environmental protection on them confers responsibility for providing the favorable environment and ecological safety in the corresponding territories.
4. In sense of article 79 of the Law on environmental protection the harm done to the environment is subject to compensation irrespective of the indemnification to health of citizens or property of physical persons and legal entities caused by negative impact of the environment as a result of economic and (or) other activity. Similarly indemnification to the environment is not the basis for release of person from responsibility for damnification to health of citizens or property of physical persons and legal entities as a result of negative impact on the environment in connection with implementation of economic and (or) other activity by it and violation of the law in the field of environmental protection. For example, person applying the toxic chemicals which are not exposed to disintegration in the environment in agricultural industry can be shall how to compensate the harm done to the environment, and the losses which arose at specific owners (users) of land (forest) sites (in particular, owing to death belonging to these persons of harvest, animals, etc.).
5. Finding of the parcel of land in property of person whose activities led to pollution or other spoil of the parcel of land in itself cannot form the basis for release of this person from obligation to bring the parcel of land to initial state and to compensate the harm done to the environment (article 1064 Civil Code of the Russian Federation, Item 1 of article 77 of the Law on environmental protection).
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