Pollution of the marine environment - Commentary to...

Pollution of the marine environment

1. Contamination of the marine environment from land-based sources, or as a result of violation of the rules for the burial or dumping of vehicles or artificial islands, installations or structures that are harmful to human health and aquatic biological resources or interfere with the lawful use of the marine environment, (as amended by Federal Law No. 46-FZ of 09.04.2007, No.ZZZ-FZ of 06.12.2007), -

is punishable by a fine of up to two hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to eighteen 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 term up to four hundred and eighty hours, or correctional labor for up to two years, or by arrest for up to four months (as amended by Federal Law No. 162-FZ of 08.12.2003, No. 81- FZ, from 07.12.2011 № 420-FZ).

2. The same acts that caused significant harm to human health, aquatic biological resources, the environment, recreational areas or other legally protected interests (, > -

is punishable by a fine of up to five hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to three years, or by forced labor for a period of up to two years, or by imprisonment for the same term with a fine of up to forty thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to three months (

3. Acts provided for in parts one or two of this article, which resulted in the death of a person through negligence -

shall be punished by forced labor for a period of up to five years or by deprivation of liberty for the same period (as amended by Federal Law No. 420-FZ of December 7, 2011).

1. Immediate Object of Crime - the relationship to ensure global environmental security and in the protection of water and living resources of the sea.

Safe conditions for the use of sea waters are fixed in a number of international treaties to which Russia is a party: the Convention on the High Seas of April 29, 1958; Convention on Civil Liability for Damage from Sea Pollution by Oil dated November 29, 1969 (as amended on November 19, 1976), the International Convention for the Prevention of Marine Pollution by Oil dated May 12, 1954 (entered into force for the USSR on December 3, 1969 ), as well as the Law on the Continental Shelf, which defines the procedure for the disposal of waste and other materials on the shelf (Articles 34, 37, 38); "On Internal Internal Waters, Territorial Sea and the Contiguous Zone of the United States", Federal Law No. 155-FZ of July 31, 1998; (in the edition from 07.06.2013) (articles 32-38); from 17.12.1998 No. 191-FZ "On the exclusive economic zone of the United States" (as amended on November 21, 2011), the Law on Environmental Protection, regulatory acts approved by the Chief State Sanitary Doctor of the United States (for example, SanPin "Sanitary and epidemiological requirements for the protection of coastal waters of the seas from pollution in places of water use of the population ").

2. Subject crimes - the marine environment.

The waters of rivers, lakes, reservoirs and other waters specified in art. 250 CC. The waters of the contiguous zone as a crime subject are hardly worth singling out separately, as some authors do, because they are part of the exclusive economic zone (Article 22 of the Federal Law "On Inland Waters, Territorial Sea and the Contiguous Zone of the United States").

The crime scene is territorial sea, open sea, inland seas, marine exclusive zone, continental shelf.

The definitions of the marine environment as a crime subject are listed in the above federal laws, as well as in the VC.

3. The objective side of the crime is expressed in the pollution of the marine environment. The crime can be committed by actions (for example, by discharging pollutants) or by inaction (for example, failure to take measures to prevent pollution).

Pollution - is the dumping or otherwise arriving at sea, as well as the formation in its waters of harmful substances that impair the quality of the sea water, limit use or adversely affect the condition of its inhabitants, vegetation, coast.

As a means of pollution in the law, harmful substances for human health and living resources of the sea or capable of preventing the lawful use of the marine environment of substances and materials are identified. Radioactive materials in the solid or liquid state should be considered as pollutants. In the event that they were illegally acquired, stored, used, handed over to someone or destroyed, the deed forms a set of crimes under Art. 252 and 220 of the Criminal Code.

As the sources of contamination, the commented article calls coastal sources, vehicles, buildings erected at sea.

Coastal sources - are industrial, agricultural, communal, port and other enterprises, organizations, institutions regardless of ownership and any other sources of pollution on land. By means of transport means any sea transport self-propelled or towed (barge) means (cargo, passenger, military, research and other); other floating means - technical mobile devices intended for performing certain types of marine and other works (drilling rigs, cranes, floating docks, hydraulic pumps, dredging machines, etc.); aircraft (aircraft of any type and destination, flying over sea waters or landing on them). Artificially erected at sea structures are stationary technical structures intended for work in the sea (platforms, drilling rigs), as well as berths, lighthouses, etc.

According to international rules, it is permitted to remove waste and materials that are a consequence of the normal operation of technical facilities, either directly obtained or arising from the research or processing in the sea of ​​mineral resources of the seabed.

Violation of the discharge rules of substances and materials specified in the article is considered to be "completed" if substances and materials are dumped in the sea, the discharge of which is inadmissible under any circumstances, or other substances in the amount exceeding the permissible standards, or at a distance from the shore of less than the specified limit, or in places prohibited for discharge, or without adequate protection.

Violation of the rules of burial, , unlike the discharge, involves the immersion in the water of harmful substances and materials previously placed in any container (container, barrel, flooded vessel), or burrowing them in the bowels of the sea bottom, or placing in the folds of the bottom relief - cracks, depressions, canyons, etc.

By preventing contamination with the legitimate use of the natural environment is understood, for example, pollution of recreation areas and beaches with oil; destruction, damage to places of cultivation of mollusks, destruction of fish stocks; damage to the taste of fish, preventing its use in food; damage or destruction of plantations of marine commercial algae, etc. actions that make it impossible or difficult to use the marine environment.

The crime is considered to be finished from the moment of pollution of the marine environment.

5. The subject of the crime is an imputable natural person who has reached the age of 16: a captain, another member of a United States or US-based foreign ship or other floating facility, or an employee of a platform or other artificially constructed at sea structures in whose service duties include the prevention of discharges into the sea of ​​harmful substances, the commander of an aircraft, as well as an employee of onshore enterprises and structures regardless of the form of ownership and another person whose fault the pollution of the marine environment has occurred.

6. The content of the subjective side of the crime is analogous to that considered in the analysis of Art. 250 CC.

7. According to part 2 of the article under review, a qualifying sign is the infliction of significant harm to the interests protected by law.

About the notion "harm to health" see the comment, to art. 246, 248, 250, 254, and "significant harm to health" - see the comment, to Part 1 of Art. 247, part 2 of Art. 252. Decree of the Plenum of the US Armed Forces No. 21 of October 18, 2012, under significant harm to health, understands the infliction of serious or average severity of damage to the health of at least one person.

About the notion aquatic biological resources, see the comment, to art. 253 and 256.

The concept of significant harm to other legally protected interests was revealed in the analysis of Art. 246, 247 of the Criminal Code. It seems that when assessing the extent of harm, it is necessary to take into account the resistance of the contamination, the type of pollutant, the area of ​​pollution, the number of dead living organisms, the value of contaminated sites in an ecological respect (reserve, zakaznik, spawning site), the amount of material costs necessary to eliminate pollution, and

A crime is considered to be "finished," when the interests named in the law are caused significant harm. Between the act and the aftereffects, it is necessary to establish the existence of a causal connection. The corpus delicti material.

8. Particularly qualifying sign of a crime is named death of a person by negligence (Part 3 of the article being commented). The composition of the crime in this case is also material, and the content of inadvertent guilt is identical to that stated in Art. 250 and 251 of the Criminal Code.

9. The difference between a crime and an offense under Art. 8.19 of the Code of Administrative Offenses, is seen in the following. In the commented article it is a question of pollution of the marine environment due to violation of the rules of burial or discharge into the sea of ​​harmful substances and materials, whereas in Art. 8.19 CoAP - only about unauthorized or in violation of the rules of burial. In our opinion, Art. 8.19 The Code of Administrative Offenses refers to a burial that did not result in pollution of the marine environment, but was performed in violation of established rules.

In addition, the crime is a marine environment in the form of its constituent components listed above. The subject of the offense is somewhat narrower - only the waters of the interior seas, the waters of the territorial sea, the waters of the exclusive economic zone, the continental shelf; The source of pollution in committing a crime are vehicles, artificial structures erected at sea, land-based sources. In Art. 8.19 CAOs are not on the ground sources.

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