Candidate of Legal
Sciences, Associate Professor of the Kazakh-American University. Almaty,
Kazakhstan
Aralbayeva A.A
Candidate of Legal
Sciences
CRIMINAL RESPONSIBILITY FOR LAND
INFRINGEMENTS IN THE REPUBLIC OF KAZAKHSTAN
It is said in the
message of the state President to the people of Kazakhstan “Kazakhstan- 2030”:
“The citizen of 2030 will be sure that the state will protect their rights and
battle for their interests” [1, p.1].
It is also
specially marked in the message of the President of the Republic of Kazakhstan
N.A. Nazarbayev to the people of Kazakhstan “Kazakhstan on the threshold of a
new jerk forward in the development. Strategy of entry of Kazakhstan in the
number of 50 more competitive countries of the world. Kazakhstan stands today
on the boundary of a new stage of social and economic modernization and
political democratization…we build free, open and democratic society… consecutively
create and strengthen legal state, based on balanced system of political checks
and balances… We shall continue scale political reforms in the country directed
to raising the effectiveness of political system and state structure of
Kazakhstan. It is necessary to take into account harmonically both general
regularities of forming, of democratic and prosper states and important
historical peculiarities and traditions of our society”[2]. With the fending
sovereignty the Republic of Kazakhstan faced new tasks such as development of
market relationship in the state, entrance of our country out to the
international arena as a fall and equal number of the world association, taking
duties to follow strictly main principles and norms of international ecological
rights, improvement of ecological and land legislation, determination and
protection of ecological and land policy of the republic, on which depends the
efficiency and reliability the whole system of state ecological safety.
The Republic of
Kazakhstan affirms itself as a democratic, temporal, legal and social state,
the greatest values of which are a person, his life, rights and freedoms [3,
p.3].
Land
infringements are the most actual problems of land relationship in the
republic. One of the strictest ways of influence of the state open the illegal
behavior of a person commuted a crime is a punishment according to the criminal
legislation. S.S. Alekseev underlines fairly that whatever complicated outlines
would have theoretical regulations about the base of responsibility they would
not cover the main idea juridical responsibility is set for committed
infringement and thus the deciding role in the system of facts, predetermining
the legal responsibility, always plays the form of infringement. That is why
the problem of legal responsibility in any sphere of law is the problem of
legal relationship caused by the infringement as a definite juridical fact [4,
p39].
To our opinion it
is necessary to carry out a new ecological reform in Kazakhstan and make some
amendments on rein forcemeat of the responsibility for ecological
infringements. Conducting of legal reforms in our country including ecological
is a state task, fulfilling of which affects internal and foreign policy,
economy, spiritual sphere of the society life and is directed on
democratization of the social relations in the country. Special attention in
the process of conductions of the ecological reform have to be paid to the
guest ion of ecological protection of our country for the following generations,
and to bringing our national legislation into accord with international
standards. Forming of a legal state is impossible without corresponding law
culture and law consequences of the society. We consider that every citizen of
our country has to realize the ecological safety is an important element of the
future of our state. Only on the base of mutual respect and care of nature we
shall be able to preserve the ecological safety of Kazakhstan as the heritage
for the future generations.
It should be also
marked that criminal punishable infringements are such illegal actions of
physical person which can represent public danger. Criminal responsibility for
land legislation can be determined only in the cases stipulated direct by the
Criminal Code of the RK. Based on the widely recognized scientific researches
by famous scientists lawyers, concerning urgent issues of law understanding, we
shall point to main signs and features of the modern law: a) system and
regulating; b) formativeness; c) imperative, powerful character; d) for all and
open to general use; e) formal certainness; f) manifestation on a common scale
and equality towards all people; g) possession of regulative character; h)
all-round (with the help of state and non-state institutions) providing and
guaranteeing; etc [5, p.98].
Thus, criminal
responsibility for infringement of the Land legislation is set in the cases of
public dangerous actions, such as encroach on stated land law and order. Crime,
concerning land law is administrated a crime committed public dangerous action,
forbidden by the Criminal Code under the threat of punishment.
Unfortunately,
the number of land infringements concerning with concession and use of land
increases in our country every year.
The Criminal Code
of the RK (article 11-Ecological crimes) makes provision of 18 corpus delicate
[6]. It is bound up with that the land and other natural resources are flighty
intercommunicated. The object of crime very often can be land and other natural
resources and even the environment as a whole (entirely) [7, p.361]. Indeed,
the social danger of land infringements consists in that they encroach on a
person through the natural surroundings by destruction or deterioration of the
biological basis of its existence. In this connection we would like to
underline some articles in the criminal code, which stipulate criminal
responsibility for the following types of land infringements:
-unlawful
infringement to the somebody else’s plot, which did considerable harm to the
rights or interests protected by the law of the society or state, committed
with violence or under the threat of it either by a group of people or followed
with the illegal search, and also unfair seizure of the somebody else’s
site.(art. 186 CC of RK);
- poisoning
polluting or other spoiling of the land with harmful products of economic or
other activity in consequence of notation of the rules of using of toxic
chemicals, fertilizers, stimulants of plants growth and other dangerous
chemical, radioactive or biological substances during their keeping, using,
transportation or burying, caused doing harm to the person’s health or the
environment, deterioration of the natural characteristics of the land (art.293
CC of RK);
-infringement of
the regime of specially protected natural territories, entailed doing
considerable harm (art.293 CC of RK), violation of ecological requirements for
using natural resources (art.277 CC of RK).
Subject of land
infringements are usually considered physical and juridical people and as it is
known, subjects of such responsibility are also officials or managers of the
enterprises, offices, organizations.
Specify of the
land responsibility is expressed that the measures of criminal responsibility
are used only in legal form in accordance with criminal procedure legislation
of our republic.
In the corpus
delicate of a land infringements there are included four general elements which
characterize the committed action or non-action as a breach: object and
objective side, subject and subjective side. As on object of a crime it is
considered a plot, which is infringed, and also rights and legal interests of
the landowners and other land users. Objective side is an illegal deed of the
subject in action, non-action or improver action committed against the requirements
of land legislation. The subject of the land infringement are usually
considered physical and juridical people, foreign states and interprises with
foreign investments, and also special subjects, state agencies and state
officials using their working status. Subjective side of the infringement is
expressed by the presence of guilt of the offender. Land infringements can be
committed in two ways: as an intentional action and as by imprudence.
Intentional is a land infringement when offenders foreknow harm consequences of
his or her behavior and wants or consciously allows them to happen.
Carelessness exists of two types: self-sufficiency and negligence however
self-sufficiency comes when the person, infringed the law, foresaw the social
harmful consequences of his or her activity but thoughtlessly expects to escape
them negligence is determined when the person did not foresee the harmful
consequences though had to and could foresee them.
In the connection
with the land infringements which have become more frequent lately in the
Republic of Kazakhstan we consider to be correct to introduce some innovations
and amendments into the criminal Code of the Republic of Kazakhstan on
reinforcement and strengthening of the measures used to the land infringements.
It is suggested
introducing of the draft law about reinforcement of the measures of
responsibility for the land infringements in the Republic of Kazakhstan. It is
supposed to double the fines for land infringements. In particular for
infringements of using and protecting of lands investigating the cases of
corresponding criminal actions: poisoning, polluting or other spoiling of the
land with harmful products caused doing harm to person’s health or the
environment, registration of the illegal transactions with land, nursery
sentation of registration data of the land cadastre, underestimation of the
payments for land.
It is suggested
strengthening of criminal responsibility for the crimes in the articles of the
criminal code 186 (illegal infringement to somebody else’s plot), 277
(infringement of ecological requirements during using of natural resources),
292 (destruction or damage of forests);…(pollution of the state sea water by
the sources located on the land).
The above
mentioned amendments are depended on that the combat against land offenders,
where damage to landowners and land users is done by spoiling the land is one
of the priority tasks of the state in the modern stage. However, taking to
account that practice of instituting criminal proceedings for land
infringements is very law, mainly in the cases of land polluting, the
preference is given to applying measures of administrative responsibility.
According to the strategic program “Kazakhstan-2030” we want to see our country
clean, green, with fresh air and water, and a vast agricultural land. More over
none circumstances have not to decrease the effectiveness of using our
legislation about land protection.
Infringements of
land law order, non-execution or improper execution of legal requirements
adversely affect the everything out of the law and land protection. The most
important element of legal guaranteeing of rational using and protection of
lands, protection of rights and legal interests of landowners, land users and
land holders is the use of legal measures of influence, directed to elimination
of land legislation infringement and stoppage of its further development,
restorations of the violated right and institute the guilty to criminal
proceedings. [8, p187]
With due regard
to the above mention there is provided the following definition of the Land Law
of the Republic of Kazakhstan: “an independent branch of Kazakhstan
jurisprudence, is represented as accumulation of domestic statuory and
regulatory enactments and recognized by the Republic international and legal
norms, controlling the social relations in the sphere of protection of the
country ecology”.
References:
1.
Nazarbayev N.A. Kazakhstan 2030.
Prosperity, safety and improvement of welfare of all people of Kazakhstan:
Message of the President of the country to people of Kazakhstan //
Kazakhstanskaya Pravda 1997, 11-15th October.
2.
Nazarbayev N.A. “Kazakhstan is on
the threshold of a new jerk forward in the development. Strategy of entry of
Kazakhstan in the number of 50 more competitive countries of the world: Message
of the President of the country of people of Kazakhstan” // Kazakhstanskaya
Pravda, 2006, 2nd march.
3.
Constitution the Republic of
Kazakhstan from 1995, 30th august with amendments and additions,
emendated by the Law of the Republic of Kazakhstan from 2014, 21st
may ¹254-III- Almaty: Lawyer, 2014.
4.
Alekseyev S.S. “Problems of Law
theory” M., 1974, 1v.p.39.
5.
Kezimov D.A. “Methodology of Law”.
Subject, functions, problems of Law philosophy M. 2000, p.297.
6.
Criminal Code of the Republic of
Kazakhstan //Lawyer: reference system. Electronic resource of access- www.zakon.kz
7.
Stamkulov A.S., Stamkulov G.A. “Land
Law of the Republic of Kazakhstan” (general part) : Training manual, -Almaty
2012.
8.
Land Law of Russia “Textbook on the
specialty “Jurisprudence” under the editorship of V.V. Petrov. M, 2007.