Law/5. Criminal law and criminology
K.
Yu. N. Zhadan V. N.
Kazan Federal
University, Elabuga Institute, Russia
ABOUT
CRIMINAL LIABILITY FOR ENVIRONMENTAL OFFENCES IN RUSSIA
In the XXI century the impact on the environment,
as a country, and globally, has increased several times in comparison with the
previous centuries. And this is connected primarily with the development of
industrial production, emissions of various harmful substances, pollution of
sea and river resources, a different kind of natural disaster (volcanic
eruption, earthquake), reduction of forest and ecological areas on the planet
Earth. All of these natural, technological and human factors lead to the
deterioration of the ecological situation not only in single country but also
on a global scale. The risk of environmental violations and crimes is that the
deterioration of the natural resources within the region, because of the
interrelatedness of natural resources, can actively influence and contribute to
the deterioration of the ecological state of the environment in other regions.
As a General rule local environmental violations
and crimes is not a factor of the security of other regions, both in individual
country and in the whole world. Is no exception in this regard and the
Therefore, the purity of the air, water and soil,
for the most part depends on the state of human health, duration of life, the
existence and development of flora and fauna. Meanwhile, the deterioration of
natural resources is a significant factor in reducing life expectancy. Every
year an increasing number of chronically ill, which is directly related to
living conditions, increases proportionally with the number of people suffering
from diseases of the respiratory organs, a growing number of allergic
reactions, all these factors are directly linked to the environment. Of the
above allows us to understand the value and importance of the need to maintain
environmental safety and purity of natural resources.
The analysis of criminological and criminal-legal
characteristics of environmental crime and the characteristics of attracting
certain types of environmental crime in Russia [1] subject of many
publications, that in no way detracts from the author to continue the study of
this problem.
Subject to this consideration there are some
issues on criminal liability for environmental offences.
Based on the research subject natural following
questions: what are the reasons in Russia caused the growth and emergence of
new types of environmental crimes; the number of recorded environmental crimes
and what are the dynamics, what socially dangerous acts admit environmental
crimes; whether there are constitutional and other legal basis for the
protection of the environment; which environmental crimes are provided for in
criminal law; what are the penalties for environmental offences; whether you
want to further improve the prevention and the development of legislation on
environmental offences and crimes? Many of these questions are scientific work,
that does not prevent the author to Express their opinion.
In
In
Quite often, environmental crimes connected with
corruption offences, which are characterized by high latency, what the author
noted in the publication about the corruption crime in Russia [5, p. 1809], and
therefore, in official statistics on environmental crimes according to the
estimates of Russian experts reflected only one half (third) of the committed
crimes in this category.
In educational and scientific literature provides
many definitions of the term "environmental crime". For example,
environmental crime is a socially dangerous act, which can be an action or
omission carried out deliberately or by negligence, infringe on the established
in the legislation of the
In the system of Russian legislation in the part
of the Criminal code of the Russian Federation [7] (hereinafter – CC RF), noted
that it "is based on the Constitution of the Russian Federation and the
universally recognized principles and norms of international law" (part 2
of article 1 of the criminal code) and criminal law reflected social threat of
human-related encroachment on environmentally important facilities.
Primarily of interest is the definition of
"environmental crime". A normative concept of environmental crime is
given in article 85 of the Law of the
According to the author, the criminal code
required in Chapter 26 "Ecological crimes" to define the concept of
crimes of this category, by analogy with Chapter 33 of "crimes in the
sphere of military service", that is, in the first article of Chapter 26
to give the criminal the legal concept of environmental crime.
The development of environmental law began in the
era of the industrial revolution, in connection with the increase of industrial
emissions and pollution of natural resources. At the present stage of
development of legislative base is quite diverse. Environmental protection is
one of the most important areas in the activities of our state, which is
reflected in the Constitution.
Thus, article 42 of the Constitution provides
that "Everyone has the right to favourable
environment, reliable information about its condition and on compensation of
the damage caused to his health or property by ecological violations"
[10]. In addition to the Constitution, environmental protection is enshrined in
other legal acts contained in the Federal law of 10.01.2002 ¹ 7-FZ "On
environmental protection", laws of constituent entities of the Russian
Federation (for example, "Environmental code" of the Republic of Tatarstan), presidential decrees (e.g. the decree of the
President of the Russian Federation "On state strategy of the Russian
Federation on environmental protection and sustainable development"),
resolutions of the Government of the Russian Federation (for example, the RF
Government resolution "On approval of the state program of the Russian
Federation "environmental Protection" for 2012-2020").
As noted above, criminal liability for
environmental offences defined in Chapter 26 "Environmental crimes of the
criminal code [7].
In the legal literature on environmental crime
adopted, as a rule, to distinguish two types of environmental offences General
environmental crimes and environmental crimes. General nature of the violation
of ecological security, constitutes a violation of certain rules that oblige
the legislation of the
To common environmental crimes are criminal acts
–violation of rules of protection of the environment by manufacture of works
(item 264 of the criminal code); violation of rules of handling environmentally
dangerous substances and wastes (article 247 of the criminal code); violation
of safety rules when handling microbiological or other biological agents or
toxins (article 248 criminal code); breach of regime of specially protected
natural territories and objects (article 262 of the criminal code) and others.
To a special environmental crimes are criminal
acts – water pollution (article 250 of the criminal code); air pollution
(article 251 of the criminal code); marine pollution (article 252 criminal
code); damage to land (article 254 of the criminal code); illegal hunting
(article 258 of the criminal code); illegal felling of forest plantations (art.
260 of CC of RF) [7].
In the science of criminal law there is a
scientific approach, according to which the special environmental structures also
include crimes that are listed in other chapters of the criminal code –
violation of safety rules at nuclear facilities (article 215), the concealment
of information on circumstances creating danger to life or health (article
237), cruelty to animals (article 245) and ecocide (article 358) [12].
For committing environmental crimes provides
punishment in the form of a fine, deprivation of the right to occupy certain
positions or engage in certain activities, compulsory work, correctional labor,
forced labor, restriction of freedom, arrest, imprisonment for certain term.
When establishing punishment in the form of a fine, its size depends on the
nature of the offense. When the sentence of deprivation of rights to engage in
certain activities or occupy a certain position, set expiration of such
punishment. Punishment in the form of compulsory work consists in performance
condemned in free from the basic work or study time free community service. For
example, such punishment is provided for water pollution (part 1 of article 250
of the criminal code), air pollution (part 1 of article 251 of the criminal
code), illegal felling of forest plantations (part 1 of article 260 of the
criminal code) and others.
As punishment for environmental crimes provides
for penal and forced labor, which consists in the compulsory attraction of the
convict to work with the deduction from his earnings in the state income in
some part from 5 to 20%. These types of penalties, for example, for violation
of rules of protection of the environment by manufacture of works (article 246
criminal code); destruction or damage of forest plantations (part 1 of article
261 of the criminal code) and others.
Imprisonment for a definite period is set for
many crimes, including violation of rules of protection of the environment by
manufacture of works (article 246 criminal code); air pollution (part 2-3,
article 251 of the criminal code); damage of the earth (part 2-3, article 254
of the criminal code); illegal extraction (catch) of aquatic biological
resources (CH. 1-2, article 256 of the criminal code), illegal hunting (part 2
of article 258 of the criminal code); destruction of critical habitats for
organisms entered in Red Book of Russian Federation (item 259 UK the Russian
Federation), destruction or damage of forest plantations (part 1-2 of article
261 of the criminal code) and others. The most severe punishment is provided
for violation of rules of handling environmentally dangerous substances and
waste (part 3 of article 247 of the criminal code) and provides for punishment
of deprivation of liberty for a term up to 8 years [7].
If you take into account the offences set forth
in other chapters of the criminal code, for example, ecocide (article 358), as
"Mass destruction of flora or fauna, poisoning of atmosphere or water
resources, as well as other actions capable of causing an ecological
catastrophe", is liable to imprisonment for a term of 12 to 20 years [7].
In the analysis of judicial practice, it can be
concluded that in most cases for environmental crimes of varying severity as
punishment is used a fine, its size varies depending on the severity of the
crime. If the offender is able to pay the fine, large or small size, more
severe sanctions applied to it or not. This entails the establishment of
recidivist nature of environmental crimes.
Feature of criminal liability for environmental
crime is that during the investigation of the criminal case to the inquirer and
to the investigator and then the court (judge) during the trial it is necessary
to consider the legal aspects of the other legal acts and provisions of the
resolution of Plenum of the Supreme Court of the Russian Federation dated
18.10.2012 N 21 "About the application by courts of legislation on
liability for violations in the field of environment protection and natural
resources" [13].
Thus, based on the analysis of existing norms of
the criminal code, characterizing environmental crimes, official statistics,
media material and scientific approaches to environmental crimes, as well as
the author's understanding discusses some issues on criminal liability for
committing such offences.
Literature:
1. See: Vinogradova E.
V. Crimes against environmental safety: dis. ... doctor. the faculty of law.
Sciences. –
2. Zhadan V. N. On the Criminogenic Situation in
3. The state of crime – January to December 2016
in
4. A criminality condition in
5. Timur A. Gumerov, Vladimir N. Zhadan and Iskandar G. Mukhametgaliyev. On
Criminological Aspects of Corruption-Related Criminal Activity in
6. Bogolyubov S. A.
Ecological rights. M.: NORMA, 2001. – 448 p.
7. Criminal code of the
8. The law of the
9. Federal law of 10.01.2002 N 7-FZ (ed. from
03.07.2016 N 358-FZ) "About environmental protection". URL:
http://www.rg.ru/2002/01/12/oxranasredy-dok.html
10. The Constitution of the Russian Federation
(adopted by popular vote 12.12.1993) (as amended, amended Laws of the Russian
Federation on amendments to the Constitution of the Russian Federation from
30.12.2008 N 6-FKZ, from 30.12.2008 N 7-FKZ, from 05.02.2014 N 2-FKZ, from
21.07.2014 N 11-FCL) // Sz the Russian Federation. –
2014. – N 31. –
11. Viktorov D. V.
Criminal liability for crimes against environmental safety and the environment
// Russian justice. – 2013. – N 7. – P. 11-13.
12. See: Brinchuk, M.
M. Environmental law (environmental law): Textbook for universities. – M.: Yurist, 1998. – 688 p.; Kashepov
V. P. the Development of legislation on criminal liability for environmental
crimes. URL: http://www.center-bereg.ru/640.html; Criminal liability for
environmental crimes. URL: http://jurkom74.ru/; Legal liability for
environmental offences. URL: http://isfic.info/pravov/rosp137.htm etc.
13. The resolution of Plenum of the Supreme Court
of the