Head of the Legal Department,
Ph.D., associate professor
Tileubergenov Erazak Manapovich
KazNPU after Abai, Almaty
General theoretical
issues of judicial ecological expert examination
Currently, all the more relevant
in economic reforms is the predominance of environmental factors. Kazakhstan,
with huge potential of natural resources, often uses them irrationally, it leads to the deterioration of ecological
situation in the country.
Over the past 10 years in the
country the institutional framework for market-based environmental management
and environmental protection are created the National Action Plan of environmental protection are developed
operates more than 300 environmental
non-governmental organizations, operate the financial infrastructure and
economic instruments, environmental management and environmental protection are
improved the regulatory framework, which includes about 400 legal documents is
formed. Among them, there are the Act "On Environmental Protection"
from 15.07.97g. The Act "On Ecological Expertise" 18.03.97g., The Act
"On Protected Natural Areas" from 15.07.97g. The new mechanism to
control environmental performance and state environmental control are developed.
Law on Ecological Expertise was the first regulatory legal act regulating
relations in the field of environmental expertise, having the shape of the law.
It is a legal document explaining and detailing 11 chapter of the Law of RK
"On Environmental Protection". The law acts as a guarantor to ensure
environmental safety, rational use of natural resources, non-environmental
deterioration.
Despite all these positive
factors, the environment of Kazakhstan continues to be in poor condition. In an
increasingly severe environment contamination by various products of industrial
emissions and other harmful substances (for the last 2 years air pollution in Almaty and region increased
on average by 12% and contains a record amount of heavy metal compounds) are
often violated the rules of hunting and fishing , poisoning of water, illegal
felling of green (because of the rampant felling of the last the required rate
of oxygen from one year to year is rapidly declining), the development of such section as forensic investigations, and Forensic
environmental assessment becomes more urgent.
At the present time, science has
become increasingly to focus on in-depth study of the legal problems of
preserving and restoring the environment and sustainable development of economy
rather than a simple integration of natural resources to meet the needs of
society.
Studies of the legal protection of
nature attracted the attention of a large number of lawyers. OS Kolbasov, V. Petrov, A. Kazantsev, V. L.
Muntean, R. K. Gusev, S. Stamkulov, D.L . Baideldinov, NB Muhudinov, LK
Erkinbaeva, NS Baimbetov significant contribution to the formulation and
solution of issues in this area have. However the important aspects of the
problem were not enough analyzed.
It should be noted that today in
theory and practical application of existing criminal laws any significant difficulties
came into being according to the statistics only 1.1% of the
materials of violation of environmental regulations is passed to the
investigating authorities, not a single case does not reach before the court.
In such circumstances there is no one
views as on the matter of legal status of environmental assessment in the forensic
examinations, as in respect of the rights of its existence.
Some experts recognizing the need
of forming such direction of expert studies, says that forensic environmental
assessment is the subgenus or species in the structure of forensic botany and
forensic examinations of zoology (1). Others - separate genus forensic
biological examination (2,3). There is also the view that forensic
environmental assessment is an independent class of expertise, integrating data
from various sciences (4). Environmental impact assessment, as a rule, is
complex and is made a commission by ecologists, chemists, physicists, biologists,
agricultural, forensic and other specialists.
The first view is based on the
fact that in each substantive section of biology the ecology is an obligatory
component. Thus, there is not only the ecology of plants and animals, but
microorganisms, including separately bacteria, protozoa, etc.; It is allocated
ecological anatomy of wood, and a number of environmental trends in zoology.
It depends a lot on the tasks,
which the environmental forensic examination must solve.
If, for example, the question: is
raised "What will the negative environmental effects be by cutting of the natural (artificial) stands", or if there are health
standards in the content of this plantation, the answers are within the
competence of an expert botanist. Based on the theory of forest types,
hydrobiology, land reclamation, forestry, etc., complex application of
biological disciplines "at the crossroads", it is qualified to answer
the questions.
The same about the fact of illegal
hunting, illegal fishing, these offenses, which are part of the environmental
crimes. From expert-zoologist is demanded to establish the presence of animals
or their tracks (mostly the hair, skin, scales, etc.), where the fishing is
prohibited, which has long been the task of environmental expertise. However,
the second opinion and rightly so is also sound.
Ecology - the collective notion,
and therefore the problem of protecting the environment has a complex nature.
It has economic, technological, social, biological, medical, administrative and
economic aspects, including the relevant legal rules governing the sphere of
relations. Therefore, the emergence of forensic environmental assessment as a
new class of independent expert research is scientifically and practically sound
process.
Objectives of forensic examination
and the environmental problems, are in close proximity to one of the areas of
applied ecology, namely the environment associated with anthropogenic
influence. It is designed to address issues relating to the establishment of
the impacts of water pollution, air and soil and noncleared untreated sewage,
garbage of industry (chemical, petrochemical, machine-building industry and
non-ferrous metals) and utilities (out of 44 surveyed water bodies to
"clean" only 9 rivers, 2 lakes and 2 reservoir, max be classified and
a "dirty" and "very dirty" - 6 rivers and 1 reservoir);
direct impact on the environment through improper plowing the land, reducing
habitat destruction, or even the disparagement of certain types of animals or
plants; wrong irrigation or drainage, the establishment of ruderal habitats,
etc.
The institute of Environmental Review is the controlling
mechanism, which is in an unfavorable environmental conditions, allows to
evaluate the involvement of experts at the stage preceding the implementation
of the object, the degree of negative impact on the environment, to determine
the feasibility of an object in a specific environmental situation, is the
scientific conclusions and recommendations on the most expedient , from an
environmental point of view, the implementation of the project.
Its appointment the environmental
impact assessment is intended to prevent possible negative impact of proposed
economic and other activities and determine whether this activity meets to environmental
requirements and quality standards of environmental protection. If raises the
question of the possibility of realization of the object before the
eco-damaging activities (5).
The objective offense was the
result of environmental damage to the environment, or a real threat of its
occurrence, that is one of its fundamental characteristics.
In the Criminal Code 17
formulations of environmental crimes is provided. These - a violation of
environmental requirements for economic and other activities, the violation of
environmental requirements in the production and the use of potentially
environmentally hazardous chemical, radioactive and biological substances,
pollution and depletion of water pollution, atmospheric pollution, pollution of
sea water damage of the land; violation of safety and the use subsoil; illegal harvesting of aquatic plants and
animals, illegal hunting, illegal felling of trees and shrubs, etc. (6)
Classification of environmental
liability may be carried out on various foundation. For natural objects, it is divided into the responsibility for branches
of legislation on the protection of land, mineral resources, waters, forests,
wildlife, air, etc. In content - on pollution, depletion of the natural
environment, etc. On the application of sanctions - criminal, administrative,
including material, disciplinary.
Possibilities of judicial and
environmental impact assessment in the recent past have been widely discussed
by specialists KazNIISE, then TSSE MJ RK. Unfortunately, the objective
difficulties did not allowed to proceed to the creation of this complex, but
only the actual direction of expert studies today. However, the increasing
attention to environmental protection, of course, will demand an expert
analysis of both individual objects of animate and inanimate nature and the
natural environment in general.
It is significant that at the
present time, neither new buildings nor reconstruction of existing Expansion is
not permitted by the city authorities without the act of examination of the
existence of plantations. Such expertise the Main State Ecological Expertise of the Ministry of Environment
and Natural Resources and its field offices may spend.
As It’s known, the practice of
building of organized structures of environmental assessment for a long time
was on the way of forming state expert structures in the organs of
inter-branches and management of branches, directly subordinated to the
executive and administrative bodies.
Local representative and executive
authorities, as well as Government of Kazakhstan, are the organs of the overall
competence - the organization and carrying out at environmental impact
assessment is not the main type of their activities. These bodies deal with the
environmental expertise only within their competence. Their main task is to
carry out state control and inter-branches coordination. So there is the fact
of the disengagement of expertise and control of the management.
It is obvious that in such
matters, it would be preferable to the conclusion of an independent examination
carried out by specialists of CIE MJ RK, that in case of controversy and trial
could lead to the implementation of the adversarial principle, where the legal
environmental assessment would be carried out within the relevant authority and
comprehensive research work of all aspects of environmental impact assessment
was conducted. This approach is consistent, because it is the consequence of circumstances
indicating that the structure formed by the management expertise are not really
able to overcome the one-sided and stereotypical normative approach in the
implementation of environmental impact assessment. (7)
While forensic environmental
assessment does not exist as a separate class of examinations, it is necessary
to carry out some fields of forensic environmental examination within the
framework of forensic biological examinations, selecting as a kind of
"Expert-ecological research of sites and communities of plant and animal
origin”.
Raising the status of the assessor
to a large extent depends on the professionalism, scientific and technical
level of the expert-ecologist.
In connection with the above it seems
that the promising direction for the
development of CIF MJ RK material on
fundamental, theoretical issues of environmental expertise to analyze the
existing system of environmental impact assessment in the country, by methods
of assessing of the ecological state of
the components of natural ecosystems, as well as physical and chemical methods
used in environmental examination. (8)
Intensifying methodical work with
forensic investigative machinery to promote expertise in addressing
environmental problems. It will be possible through the analysis of practice to
determine the main, the most promising directions of development of
environmental impact assessment of wildlife.
It is advisable to carry out the
publication of special benefits - guidelines on training of judicial and
environmental expertise for the development of new analytical instruments and
equipment, reading courses on system analysis of the environment -
methodological and normative-methodical, scientific - technological,
organizational,- legal and government bases of Forensic environmental
expertise,- acquaintance with the
latest information and GIS technologies, new methods of analysis of components
of natural objects.
The proposed measures, in our
view, would have laid a firm foundation for further development and improvement
of the judiciary environmental expertise in the Republic, its comprehensive,
objective and qualified carrying out and it would be possible to solve the
problem of ecological improving of the country more effectively.
REFERENCES:
1. Zhgenti OV Classification of forensic analysis, its role and importance.
"General theoretical issues of forensic, M, 1982.
2. Bychkova, SF Organization purpose and production of forensic, Almaty, 1999.
3. Koziner EP On the question of legal environmental review. M, 1987.
4. Shlyakhov AR Classification of forensic analysis. Textbook. Volgograd, 1980.
5. Baimbetov NS The problems of legal regulation of environmental impact
assessment in the Republic of Kazakhstan, Almaty, 1999.
6. RK Law "On Ecological Expertise" 18.03.97g.
7. RK Law "On specially protected natural territories" from
15.07.97g.
8. Act "On Environmental Protection" of 15.07.97g.
SUMMARY
Article Tileubergenova EM "General theoretical issues of environmental
impact assessment of the judiciary.
This article explores the various aspects of the organization and conduct
forensic environmental expertise. Formulated goals, objectives, theoretical
foundations of this type of examination. The author offers the most promising
directions of development of the judicial environmental review.
Designed for employees of expert agencies, law enforcement officials,educators
and law students.