of June 18, 2004 No. 1
About application by courts of the legislation on responsibility for some environmental criminal offenses
For the purpose of the correct and uniform application by courts of the legislation on environmental criminal offenses, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. For ensuring the correct application of the law by hearing of cases on environmental criminal offenses courts in each case should find out what ecological requirements and (or) rules shall be followed during the implementing of economic and other activity, production, storage and use of ecologically dangerous substances, making of other actions (water, hunting, felling of trees and bushes, etc.) and also by what regulatory legal acts these requirements and rules are established, meaning that the regulations of the penal statute establishing responsibility for making of environmental criminal offenses are blanket.
2. Any physical persons, including persons authorized on accomplishment of the state functions and persons equated to them, officials, and also persons holding the responsible state position and faces performing managerial functions in the state and non-state, commercial or non-profit organizations can be subjects of environmental criminal offenses.
In cases when environmental criminal offenses are commited by person, authorized on accomplishment of the state functions and persons equated to them, the official, and also person holding responsible state position or person performing managerial functions in commercial or non-profit organization, in the presence in their actions also of signs of the abuse of ex-officio full powers or powers of the person performing managerial functions in commercial or non-profit organization, their actions should be qualified under the relevant articles of the Criminal Code of Kazakhstan (further - UK) providing responsibility both for environmental criminal offense, and for corruption and other criminal offenses against interests of public service and public administration or criminal offense against interests of service in commercial and other organizations.
If is normal of the penal statute making by the guilty person of act with use of the official position is provided in quality of the qualifying sign of environmental criminal offense, then responsibility comes only under Article (part of Article the) of UK providing responsibility for environmental criminal offenses.
3. For the purpose of the correct permission of the questions requiring special knowledge of the field of ecology, courts need according to Articles 270, of 271, of 272, 273 Codes of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure), chapter 8 of the Ecological code of the Republic of Kazakhstan (further - EK) to recruit in the case of specialists or to appoint conducting the corresponding environmental assessments.
4. In case of clarification of question of whether the territory within which the criminal offense connected with violation of the ecological legislation, especially protected natural territory or the territory with emergency ecological situation is made (part two of Articles 325, of 326, of 328, of 332, Item 6) of Article part three 335, Item 1) of Article part four 337, Item 4) of part three of article 340 UK) is it is necessary to proceed from provisions EK and the Law of the Republic of Kazakhstan of July 7, 2006 No. 175 "About especially protected natural territories", establishing and especially protected natural territories determining legal, economic, social and organizational basis of activities.
5. It is necessary to understand as illegal felling, destruction or damage of trees and bushes the cabin of the trees and bushes in the state forest fund of the Republic of Kazakhstan including damaged and the dead as a result of natural, anthropogenous and technogenic factors: without logging ticket; under the logging ticket made with abuse of regulations of cabins of the wood on sites of the state forest fund; made with violation of the terms established in the logging ticket; the cabin in the sizes exceeding settlement cutting area, and other abuses of regulations, established by the subitem 9) of Item 1 of Article 113 of the Forest code of the Republic of Kazakhstan and other regulatory legal acts.
6. In case of determination of the extent of the ecological damage caused by illegal felling, destruction or damage of trees and bushes it is necessary to find out whether damage of trees and bushes, is integrated to the termination of their growth, whether their felling, and other circumstances was prohibited.
7. It should be noted that in case of determination of ecological damage from illegal felling, destruction or damage of trees and bushes not only the cost of the cut-down or damaged trees and bushes in terms of money is taken into account. In cases if illegal felling, destruction or damage of trees and bushes entailed other ecological harm (drying of reservoirs, death of herbs and other vegetation, disappearance in this area of animals, birds, useful insects, etc.), the ecological damage is determined on the basis of assessment of elimination of ecological damage or recovery of consumer properties of natural resources.
8. It is necessary to understand making of such actions as numerous illegal felling of trees and bushes two and more times if no person was condemned for one of them.
Felling of several trees and bushes cannot be recognized numerous if it is determined that felling of all trees and bushes was covered by single intention. The felling of single trees and bushes made at different times when actions of the guilty person were characterized by the independent intention arising when felling each tree and bush separately is qualified as numerous.
9. The cabin of the trees and bushes growing on lands of agricultural purpose, except for forest shelter plantings on personal seasonal and garden plots, windfall, slash trees, on the lands provided in private property of physical and non-state legal entities for afforestation, etc. does not form structure of environmental criminal offense if it is specially not provided by the law. The cabin on legal causes of the trees and bushes growing on the specified lands with subsequent their non-paid assignment and also occupancy by the trees which are cut down in forests on legal causes prepared for warehousing, sale or export it is necessary to qualify as plunder of alien property.
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