Atmospheric pollution - A commentary to the Criminal Code of the US Federation

Atmospheric pollution

1. Violation of the rules for the emission of pollutants into the atmosphere or the disruption of the operation of installations, structures and other objects, if these acts caused pollution or other changes in the natural properties of air,

is punishable by a fine of up to eighty thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to six months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by compulsory works for a period of up to three hundred and sixty hours, or by corrective labor for a period of up to one year, or by arrest for up to three months (in the version of Federal Law No. 162-FZ of 08.12.2003, No. 81- FZ, from 07.12.2011 № 420-FZ).

2. The same acts that caused by inadvertence the infliction of harm to human health (

),

is punishable by a fine of up to two hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for up to four hundred and eighty hours, or by corrective labor for up to two years, work for a period of up to two years, or imprisonment for the same period (

)

3. Acts stipulated in parts one or two of this article,

the death of a person that caused but negligence, -

is punishable by forced labor for a period of two to five years, or by imprisonment for up to five years (as amended by Federal Law No. 420-FZ of December 7, 2011).

1. The main direct object of the crime provided for in the article is social relations in the sphere of environmental safety, protection and rational use of the atmosphere. An additional direct object (part 2 and 3 of this article) is a relationship for the protection of human life and health.

Subject crimes - the atmosphere. Relations for the protection of atmospheric air are regulated by the Law on Environmental Protection, the Law on Sanitary and Epidemiological Well-being, Federal Law No. 96-FZ of 04.05.1999 "On the Protection of Atmospheric Air" (as amended on 23.07.2013) and other normative legal acts.

2. From the objective side the crime is characterized by a violation of the rules for the release of pollutants into the atmosphere or the violation of the operation of installations, structures and other objects.

Violation of the emission rules into the atmosphere of pollutants is a way out, leakage of pollutants into the atmosphere from the source of pollution in violation of existing rules.

Under violation of the rules of operation installations, facilities and other objects means the failure to use installed facilities, equipment, equipment designed for cleaning and controlling emissions into the atmosphere, or the operation of such defective facilities when they do not ensure compliance with standards emissions of pollutants into the atmosphere.

Typical violations of the rules for the emission of pollutants into the atmosphere or the rules for the operation of installations, facilities and other facilities are the excess of the established standards for emissions of pollutants into the atmosphere; excess of standards of physical impacts; emission of pollutants into the atmosphere without the permission of specially authorized state agencies; harmful physical effects on the atmosphere without the permission of such authority, when it is necessary to receive it in accordance with US law.

Consequences of the crime - pollution or a different change in the natural properties of the air.

Pollution is the entry into the air or the formation of contaminants in it (soot, dust, gases, acids, other chemicals) in concentrations exceeding the hygienic and environmental quality standards for atmospheric air.

Another change in the natural properties of air is the change in the quality of atmospheric air caused by the physical, chemical, biological, radiation effects on it, as a result of the actions specified in the law, also exceeding the established standards of harmful effects on the environment, those. exceeding the permissible impact of noise, vibration, ionizing radiation, changing the electromagnetic, thermal properties of air.

Between the violation and the criminal consequence must be established causal relationship.

3. A crime has a material composition and is considered to be finished from the moment of occurrence of the specified consequences.

4. Subject crimes special - a sane person who has reached the age of 16, responsible for the operation of facilities, treatment and other facilities and objects or has violated the rules for the release of pollutants into the atmosphere.

5. From the subjective side the crime can be committed both intentionally, and by negligence. The guilt is at the same time as its content in the crime provided for in Part 1 Art. 250 CC.

6. Qualifying attribute (Part 2 of the article) - Causing inadvertently damage to human health (see comments, to articles 246, 247, 250).

7. In Part 3 of the commented article, a specially qualified sign is named - the infliction of death on a person by imprudence.

Between the violation of the rules and the consequences that occurred in clauses 2 and 3 of the commented article, it is necessary to establish a causal relationship.

The fault in the crimes provided for in Parts 2 and 3 of the commented article, in relation to causing harm to the health or death of a person, can only be careless. Its content is similar to the content of guilt in the crime provided for in Part 3 of this article.

8. The article is competing with art. 8.21, 8.22, 8.23 ​​of the Administrative Code.

The crime provided for in Part 1 of the article is considered to be "finished," if contamination or other changes in the natural properties of air have occurred. Similar consequences are provided for in the above articles of the Code of Administrative Offenses. An exception is Part 3 of Art. 8.21 of the Code of Administrative Offenses, which deals with violations that could lead to air pollution. Thus, the literal interpretation of the commented article and the articles of the Code of Administrative Offenses does not allow us to distinguish between crime and misconduct. In addition, there is a tautology in the commented article: violation of the rules for the emission of pollutants, if these acts caused air pollution (ie contamination with violation of rules leads to pollution). The same drawback was peculiar to art. 223 of the Criminal Code of the RSFSR. In order to distinguish in some way offense and crime, the Plenum of the Supreme Soviet of the USSR in paragraph 4 of the resolution of 07.07.1983 No. 4 pointed out that the criminal liability for air pollution occurs only in cases when the concentration of pollutants in the atmosphere, as well as the level of harmful physical impacts on the atmospheric air exceed the established standards, as a result of which harm to human health has been caused or could have been caused. In other words, the criminal could be not the pollution itself or another change in the properties of the air, but only one that created a real threat of harm to people's health, or such consequences have already occurred. In our opinion, the broad interpretation should also be applied when interpreting the article being commented.

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