Abstract: Everyone has the right to an environment that is not harmful to their health or well-being, and to protect the environment in favor of present and future generations through reasonable legislative and other measures that prevent pollution and environmental degradation. Ecology of Kazakhstan was inflicted by terrible human activity. Most of the water in Kazakhstan is polluted with industrial wastewater, pesticide and fertilizer residues, and, in some places, radioactivity. The most visible damage was inflicted on the Aral Sea, and the level of water in the sea began to decline rapidly, when irrigation and other pressure on the only significant tributaries - the Syr Darya and the Amudarya rivers - increased sharply.
Clean and transparent water is closely related to the environment, which does not cause harm, and with the need to prevent pollution. Water is important for human health and the environment, and every step should be taken to ensure that it is not contaminated to an unacceptable level.
The article is devoted to this problem, where the state, the causes of pollution, clogging and depletion of water, the marine environment, as well as measures to improve criminal regulations about it are studied.
Introduction.The Republic of Kazakhstan is one of the richest countries in the world with regard to natural resources. In Kazakhstan there are 39 thousand rivers, over 48 thousand internal lakes, there are large reserves of fresh water in glaciers. A little more than half of 456 explored deposits of groundwater. 45 mineral springs are also exploited. The Republic of Kazakhstan is experiencing an acute shortage of water. Nevertheless, Kazakhstan occupies the last place among the CIS countries in terms of water availability. Seven out of the eight river basins in Kazakhstan are transboundary, and, accordingly, only half of the surface water resources are generated on the territory of the Republic. The rest comes from neighboring countries: China - 18.9; Uzbekistan - 14.6; Kyrgyzstan - 3.0; Russia - 7,5 cubic kilometers .
On the territory of our country the water of the rivers comes already polluted from the territory of China, Kyrgyzstan, Uzbekistan, and practically today there are no water sources that could be attributed to clean ones.
It is well-known that water is the main natural property for Central Asia and one of the main factors of socio-economic development of the states of the region. However, the abundance of natural resources of our country dictates the need for constant care for them. Of course, natural resources in the development of modern society are based on active use, economic needs. This process was further complicated by a large number of problems in developing market relations.
Thus, the essence of water problems for the Republic of Kazakhstan lies, first of all, in the limited water resources, the deterioration of their quality, especially in recent times, as well as in their uneven distribution across the territory, as well as in improving criminal legislation.
Methodology.The methodological basis of the research consists of categories of materialistic dialectics, general and particular methods of scientific knowledge. As general scientific methods of
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knowledge in the preparation of the study used: system, logical, complex, comparative-legal methods, as well as analysis and synthesis.
The theoretical basis of the research is the scientific works of Russian and Russian scientists in the field of criminal law, environmental and water law, criminology.
When writing the work the authors relied on the Constitution of the Republic of Kazakhstan, international legal acts on environmental and criminal law issues, modern criminal, water legislation, criminal legislation of foreign countries and subordinate acts in the sphere of water relations.
The empirical base of the research consists of monographs, dissertations, textbooks, periodic press materials, in which issues of crime prevention in water resources were discussed, as well as statistical data in this field.
Authors analyzed the normative legal acts of the Republic of Kazakhstan, which regulate the prevention of violations in water resources.
Studying the experience of the countries of European continental law, as well as the position of some domestic scientists, the necessity of introducing them into the domestic Criminal Code is substantiated.
Results.The main rivers of Kazakhstan - Irtysh, Syrdarya, Talas, Shu, Ural, Ili - are classified as «polluted» according to the current classification, generalization of information on rivers indicates widespread contamination of surface waters with oil products, phenols, nutrients, heavy metal compounds. There is a contamination of water bodies with pesticides, formaldehyde, mercury and other highly toxic substances. According to official figures, every second inhabitant of Kazakhstan uses water that does not meet hygiene requirements. Annual integral economic, ecological and social damage to the population, national economy and the natural environment of the country from pollution of only water resources make up over 10 billion tenge.
The main cause of pollution of surface water basins in the republic is the discharge into the reservoirs of untreated or insufficiently treated sewage: organizations of housing and communal services and consumer services; industrial enterprises; agricultural and other branches of the economy. Pollution entering sewage water is divided into several groups.
By the physical state, impurities are isolated: insoluble; colloidal; soluble. In addition, the pollution is divided into: mineral; organic; bacterial; biological.
The Shu River originates in the spurs of the Tien Shan in the territory of Kyrgyzstan and is lost in the form of spills in the territory of the South Kazakhstan region, its total length is 1186 km, the drain is regulated by the Ortotokai and Tasotkel reservoirs. The division of the Shu River basin between the two republics is carried out on the basis of the «Regulations on the division of the flow in the Shu River basin» of 24.02.1983 and the Protocol of 18.02.1985. The first of these documents regulates the conditions for the use of water resources in the Shu River basin as a whole, and the second for the sections of the Shu River trunk. According to the above situation, 42 percent of river flow is allocated along the Shu River of the Zhambyl Oblast .
The Talas River originates in Kyrgyzstan and is lost in the sands of Moyynkum, its length is 558 km, of which 444 km is located in the Zhambyl region. And the distribution of water resources along the Talas River between Kazakhstan and Kyrgyzstan is carried out in accordance with the «Regulations on the division of the runoff in the basin of the river. Talas «from 31.01.1983, as well as with the Additional Protocol of 18.07.1983 (Alma-Ata). According to this Regulation, the share of Kazakhstan is 50 percent of the flow . The main sources of anthropogenic pollution of water resources in the Kyrgyz part of the basins are untreated household, industrial and livestock drains, mining wastes and unmanaged solid waste dumps within populated areas. Every year the threat of pollution of surface and groundwater by oil products increases. As well as potential sources of water pollution, in the event of insufficient preventive measures, the Jeroi Gold Mining Plant may become near the zone of formation of the Talas tributary tributary. Uch-Koshoy, as well as a gold ore plant on the basis of the field «Taldy-Bulak Levoberezhny» in the river flow formation zone. Shu - r. Taldy-Bulak.
The norms of international law provide for mechanisms of obligatory notification of interested states about potential threats arising from the activities of such enterprises that are capable of having a transboundary impact. In this connection, it is necessary to provide for the further specification of these mechanisms with reference to the Shu and Talas river basins.
Other sources of contamination of surface and groundwater include unauthorized waste dumps of solid household waste, which have accumulated more than 2 million tons only in the range near Taraz, without proper sorting and maintenance of safe maintenance. However, this problem is not solved at the domestic level.
Although the level of production of the mining industry has significantly decreased since 1992, millions of tons of industrial wastes have been accumulated within both basins, including the newly discovered mining industry, including radioactive ones, tailings dumps, filter cakes, various slags, etc., containing a significant share heavy metals and other toxic substances. The conditions for the maintenance of industrial waste dump sites vary considerably in each specific case, but in general, there is a tendency to deteriorate the technical condition of such facilities due to the long service life and the inadequacy of funds allocated for carrying out the required minimum of repair and restoration work and safe maintenance. This causes an increase in the probability of emergency situations, with the subsequent spread of radioactive and toxic substances into the aquatic environment .
Most of Kazakhstan's water supply was polluted by industrial and agricultural wastewaters and, in some places, radioactivity. The Aral Sea, which is shared with Uzbekistan, has grown to three separate reservoirs due to the lowering of the water level in its dependent rivers. The place of storage of biological weapons of the Soviet era is a threat, because it is located on a former island in the Aral Sea, which is now connected with the mainland.
The most visible damage was inflicted on the Aral Sea, which in the 70s was larger than any of the Great Lakes of North America except Lake Superior. The water level in the sea began to decline rapidly when sharply increased irrigation and other pressure on the only significant tributaries, the Syr Darya and the Amudarya (the latter fed the Aral Sea from neighboring Uzbekistan), almost eliminated by the confluence. By 1993, the Aral Sea had lost approximately 60 percent of its volume, and in the process it was divided into three separate segments. Increased salinity and a reduced habitat caused damage to the Aral Sea fish, therefore, destroying its once active fishing industry, and the coastline retreated from the former port of Aralsk by more than sixty kilometers from the water's edge. Reducing such a large volume of water has led to temperature changes in the region, which in turn have had an impact on agriculture. A much greater impact on agriculture, however, was provided by salt - and soil, loaded with pesticides, which the wind, as is known, carries away to long distances, for example to the Himalayas and the Pacific Ocean. Depositing such heavy salt soil in neighboring territories effectively sterilizes them. The data indicate that salts, pesticides and residues of chemical fertilizers also have a negative impact on human life around the Aral Sea; Infant mortality in the region is approaching 10 per cent, compared with 2.7 per cent in the whole country in 1991.
In contrast, the water level of the Caspian Sea has been rising steadily since 1978 for reasons that scientists were not able to fully explain. At the northern end of the sea, more than a million hectares of land was flooded in the Atyrau region. Experts estimate that if the current rate of increase continues, the coastal city of Atyrau, eighty-eight other concentration centers and many Caspian oil fields in Kazakhstan can be submerged by 2020.
Wind erosion also had an impact in the northern and central parts of the republic due to the introduction of large-scale wheat cultivation in areas of rain-fed agriculture. In the 1950s and 1960s, much soil was lost when vast areas of Kazakhstan's prairies were plowed as part of the Virgin lands of Khrushchev's agricultural project. By the mid-1990s, approximately 60 percent of the republic's pasture land was at various stages of desertification.
Some new environmental regulations in the oil industry began in 2003, but new oil operations on the Caspian coast of Kazakhstan increase pollution to the already serious pollution of this sea.
International programs to save the Aral Sea and the Caspian Sea have not received significant assistance from Kazakhstan or other participating States.
The contaminated waters of the Syr Darya and the lakes around it caused damage to the fish. The first victims of the Syr Darya were sturgeon, pike, barbel and other species of fish.
In the USSR, on the basis of basin inspection, hydrochemical laboratories were operating. When detecting pollutants that exceeded the maximum permissible concentration (MPC), penalties were immediately imposed, claims for damage to the environment, etc. Restoring this structure and measures would be so apropos.
Recently in the territory of Uzbekistan in December 2014 there was a volley discharge from the poultry farm. After the rain (in the area of the Maysky customs post), the storage pits burst, and all the sewers got into the MK (main channel) of Hanym, then into the river Keles.
In 2015, mercury in small doses was discovered in May on the Syr Darya and Shardara reservoir.
2016, in January-February, on the Syrdarya River, Shardara Reservoir, in the lower tail of the reservoir and before the Koktobe GP, mercury exceeding the MPC was detected 40-92 times, CWR was informed in due time (Committee on Water Resources of the Ministry of Agriculture of the Republic of Kazakstan), but the result was not.
Everyone knows that the city of Tashkent pours all the wastewater into the Boz river. The Boz su river flows into the Syr Darya River above the Kokbulak GP. And also the city of Khojent dumps sewage into the Syr Darya River. The main collector-drainage water of Uzbekistan is also dumped in the Syr Darya River.
As reported by IA Novosti-Kazakhstan, in Kazakhstan, 20 percent of the populations consume poor-quality drinking water; this is stated in the document of the state program «Ecology of Kazakhstan» for 2010-2020. The program document explains that the problem of sustainable water supply in Kazakhstan is due to the limited availability of water resources, a high degree of pollution and the uneven distribution of water reserves throughout the country. Despite the general shortage of groundwater, only 0.2 to 12 percent of the explored reserves are currently used. In addition, pollution and depletion of surface water continues. This is due to consumption of clean water for household needs, after which water is discharged into the reservoirs of untreated or insufficiently treated sewage. Wear of 34 percent of city drainage networks and the majority of sewage treatment facilities was 70 percent. Every effort to provide the country's population with fresh drinking water is in the process of development. However, its implementation depends on the economic situation of the country.
And irrigated lands in the republic are mastered by drip irrigation and sprinkling method for which the water canals are built. To support the water-salt balance of reclamation systems there are wells of vertical drainage. Most of them require repair. In order to ensure reliable operation and accident-free water discharge, reservoirs require major repairs and reconstruction. And this, in turn, requires additional costs. Also in order to improve the social and economic development of the region, it is necessary to implement a number of large investment projects.
Water shortage is where it is especially needed, and in the near future the demand for water in many regions of the country will exceed the local water resources reserves. This means that the issues of water supply and pollution of water resources go beyond purely national problems, and they need to be solved at the international level .
Ecology does not go beyond criminal policy. Environmental, water management, including measures to prevent criminal offenses, related to the use of criminal policy, respectively, in the organization of a separate place. The Criminal Code of the Republic of Kazakhstan for violation of water resources provides for liability in Art. 328, 330 (Article 328 - Pollution, clogging or depletion of water, Article 330 - Pollution of the marine environment) .
The content of criminal-political events, form, direction and level varies depending on the level of socio-economic life of society. Therefore, the policy of combating a criminal offense, including the definition of criminal policy and the introduction of policies, should be on a higher order (social, economic, internal) of the coordination sphere. The civil duty of every person is the protection of water resources, which serve as a source of life for us.
The legal basis of the state in the field of water resources protection, criminal legal analysis of regulation and its improvement are legal and regulatory acts in the field of scientific research in the field of crime prevention for the rational use of water resources, should be open to improving aspects of protection of water supply from criminal offenses:
- environmental criminal offenses, including those related to water resources;
- study of criminal offenses in the field of water resources;
- study and use of water resources as an object of criminological analysis of criminal offenses;
- special role in improving standards in the field of criminal use of water resources;
- the organization of effective measures to prevent criminal offenses in the use of water resources.
Sources of water pollution in the republic are:
- Radioactive waste is another source of water pollution. Radioactive substances are used in nuclear power plants, industrial, medical and other scientific processes. They can be found in wristwatches, glowing watches, televisions and X-ray equipment. There are also natural radioisotopes from organisms and in the environment. If improperly disposed of, radioactive waste can lead to serious water pollution.
- River dumping. Many people dump garbage from supermarkets, bicycle debris, garden trimmings and electronic waste into rivers or dump it to river banks. This is illegal, and offenders can be charged for an unauthorized dump if they are caught. Dumping rivers does not only lead to water pollution; it also harms wildlife and increases the risk of flooding.
There are the following types of criminal offenses in relation to pollution of water sources:
- disposal of toxic, harmful or polluting substances or solid wastes into internal freshwater reservoirs, coastal and corresponding territorial waters. Legislation does not give a definition of the word poisonous, harmful or polluting. These words are usually assigned their usual values.
- discharge of industrial or sewage waste water into internal freshwater reservoirs, coastal and related territorial waters
- Reducing or eradicating a significant amount of vegetation in internal freshwater reservoirs, without taking reasonable efforts to eliminate this.
A criminal offense is also the causing or deliberate resolution of activities with respect to groundwater, except in cases of activity with an environmental permit or benefits. In general, activities with groundwater involve the release of pollutants directly into groundwater, or indirectly. Those who damage the environment caused by a criminal offense must be punished in accordance with the law. Despite the existence of criminal law, established for the use of water resources in the sphere of socially dangerous actions, they are not always registered as criminal in law enforcement bodies.
Discussion.The Republic of Kazakhstan entered the negotiation processes on the problems of transboundary rivers with the People's Republic of China after reaching the agreements of the President of the Republic of Kazakhstan Nursultan Nazarbayev with President of the People's Republic of China Jiang Zemin in the second half of the 90s of the last century. Therefore, the fact that the PRC first sat down at the negotiating table on transboundary rivers with Kazakhstan is, first of all, the merit of the President of Kazakhstan N. Nazarbayev.
In the beginning, consultations were held on the issue of the Ministry of Foreign Affairs of the RK and the Ministry of Foreign Affairs of the PRC with the involvement of water experts.
The fifth (final) round of consultations ended with the preparation and initialing of the text of the «Agreement between the Government of the Republic of Kazakhstan and the Government of the People's Republic of China on cooperation in the use and protection of transboundary rivers (11-17 August 2001, Beijing)».
As a result, the «Agreement between the Government of the Republic of Kazakhstan and the Government of the People's Republic of China on the Protection of Transboundary River Water Quality» was signed (February 22, 2011, Beijing) and «Agreement between the Government of the Republic of Kazakhstan and the Government of the People's Republic of China on cooperation in the field of environmental protection Wednesday (June 13, 2011, Astana).
And on the basis of these two «Agreements» the Commission was organized, then the so-called Kazakhstan-China Commission for Cooperation in the field of environmental protection.
Between the RK and the PRC on the problems of transboundary rivers there are two commissions, i.e. Joint Commission on the Use and Protection of Transboundary Rivers and the Kazakhstan-China Commission for Cooperation in the Field of Environmental Protection. The first commission considers the problems of quantitative characterization of the transit flow of transboundary rivers, while the second examines the problems of monitoring, analysis and assessment of the quality of the waters of transboundary rivers, as well as rapid response to emergencies and pollution prevention.
In September 2015, the second meeting of the ad hoc working group on water allocation was held in Beijing. In the Kazakh version of the draft agreement on water allocation, there is a thesis that the transit flow to Kazakhstan must correspond to the quality of our standards. The Chinese wanted to remove this item from the agenda, arguing that the quality of water is being handled by the Kazakhstan-China Environmental Protection Commission. So, the results of the seizure of the problems of transboundary rivers by the two Commissions were awaited».
Also today, heads of republican state institutions, for example, the Aralo-Syrdarya Basin Inspection for Regulation of Water Resources Use and Protection of the Committee on Water Resources of the Ministry of Environmental Protection of the Republic of Kazakhstan have repeatedly made appeals of authorized persons on the improvement of the volume and quality of water, and also the distribution of water.
Now about the criminal liability for pollution, clogging and depletion of water, the marine environment.
A significant feature of the responsibility for violations with respect to water, which distinguishes it from other types of environmental responsibility, is water, not land, not mountain and not forest. Investigating the notion of water disturbances, many authors reject the concept of «ecological crime». Thus, E.A. Panova in the study found «that the reason for bringing to legal responsibility for a violation with regard to the use and protection of water bodies is Water, a violation which is a kind of ecological violation. Classification of water due to violations is subject to abuse - the relationship with the use, protection and restoration of water reservoirs.
The study of various theoretical approaches to the disclosure of the content and scope of the concept of —environmental crimel shows that an environmental crime is a criminal, illegal act that violates the norms of environmental, land, water, forest and other legislation with respect to natural resources, and as a result of violation of environmental legislation and order, creating a real threat of harm to the environment, human health or environmental rights and the interests of citizens and legal entities. persons» [8, P.18].
In the definition of environmental violations, it is proposed to make some adjustments related to the fact that the concept of water is a subject of a collective criminal offense, then this includes features of violations of civil law in the use and protection of water resources. Therefore, it must be pointed out that water is not always the subject of a criminal offense, because the damage to a water reservoir can be caused by a source of danger, for example, a water or a chemical vessel inadvertently, as a source of increased danger to civil law provides for «innocent liability».
The issue of criminal liability of legal entities in Kazakhstan periodically rises in the agenda of our criminal legislation.
It is known that legal entities do not have a real will, therefore, they can not have the guilty will, which is the basis for criminal liability. Only those persons who are guilty (intentionally or inadvertently) committed socially dangerous acts, the signs of which are provided for in the criminal law, are subject to criminal liability, provided that they can give an account of their actions and manage them. Only individuals can have the ability to have fault and be sane, but to justify the reverse otherwise than as a mental perversion can not be called .
In countries where criminal liability of legal persons is in effect, law enforcement agencies face problems not only legal but also procedural in applying the relevant provisions of the criminal law .
At present, the following countries of European continental law have criminalized the institution of criminal law: Holland, France, Portugal, Belgium, Luxembourg, Switzerland, Austria, Denmark, Norway, Finland, Iceland, Slovenia, Lithuania, Poland, Estonia, Moldova, Hungary, Macedonia, Romania, Croatia, Montenegro, Bosnia and Herzegovina. It should be noted that this institution was also perceived by the PRC (as a socialist country with a market economy), by a number of Muslim countries, and by Israel (with its «mixed» criminal law system) [11, p.23].
And in the criminal legislation of Latvia speech does not go about a criminal liability of legal bodies, and only measures of the criminal compulsion which are applied to legal persons, that from the point of view of the criminal law not the same are spoken only .
In 2005, the legislator of the Republic of Latvia added to the Criminal Law of Latvia chapter VIII-1 «Forced measures applied to legal entities», which provided: «Article 70.1. Grounds for applying the coercive measure to a legal entity:
For the criminal act provided for in the Special Part of this Law to a legal entity of private law, including to the state capital society or the capital company of local governments, as well as to the personnel society, the court or in cases provided by law, the prosecutor may apply a coercive measure of influence if the act in the interests of the legal a person in favor of this person or as a result of his improper supervision or control has been committed by an individual acting individually or as a member of collegial structures of the legal entity:
- on the basis of the right to represent a legal entity or act on its behalf;
- on the basis of the right to take decisions on behalf of a legal entity;
- when exercising control within the framework of a legal entity».
The following coercive measures may be imposed on a legal person:
- restriction of rights;
- confiscation of property;
- pecuniary punishment.
The monetary penalty is assigned in accordance with the harm of the criminal act and the property status of the legal entity .
Also, in the criminal law —the commission of a crime by a person using a legal entity or legal entities where he works or is their founderll to consider as aggravating circumstances, and in the Special Part of the Criminal Code of the Republic of Kazakhstan to provide for crimes with the appropriate qualifying attribute, it is proposed the domestic scientist E. Mukhamedzhanov .
Despite a lot of legislative and normative acts, the current situation undoubtedly proves the weak use of these documents in the protection and rational use of water resources. For example, despite the existence of the Interstate Coordination Water Commission, and the basin authority on the Syr Darya River, water allocation issues remain very complex. Crisis phenomena in the lower reaches of the Syr Darya and in the Aral Sea continue to increase, agricultural lands (up to 120 thousand hectares) receive less water in the norm, which leads to lower yields, especially rice and cotton.
In this regard, it should be noted that the development of interstate water relations in terms of protecting water resources and their rational use is characterized as insufficiently effective. Consequently, the most pressing issues related to interstate water use and water allocation require mutual agreement between the states on a bilateral basis, which provides the optimal solution.
Unfortunately, none of the following countries, such as China, Kyrgyzstan, Uzbekistan, has acceded to the Convention on Transboundary Water Pollution. Bilateral treaties with these countries also do not pay due attention to these issues, which should include provisions for joint monitoring, and take all necessary measures that can prevent or at least reduce the pollution of transboundary water bodies. Although according to part 1 of article 119 (the mechanism of interstate cooperation in the field of environmental protection and nature management) of the Environmental Code of the Republic of Kazakhstan:
«1. The mechanism of interstate cooperation in the field of environmental protection and nature management provides for the participation of the Republic of Kazakhstan in accordance with obligations under international treaties in the following international and transboundary procedures:
- the exchange of environmental information;
- conducting joint environmental monitoring based on agreed requirements and standards;
- identification and conservation of biological species and natural objects of international significance;
- obtaining prior informed consent for the performance of certain activities thatare the subject of international environmental regulation;
- issuing special permits for certain types of activities that pose a potential threat to the environment and human health;
- joint normalization of environmental impacts and assessment of the effectiveness of their application;
- transboundary environmental impact assessment;
- informing about emergency situations if there is a potential threat of transboundary impact;
- assistance at the request of other states in emergency situations with the threat of transboundary impact, including the development of appropriate joint response plans;
- preparation and submission of national reports on the fulfillment of international obligations;
- assessment of compliance with obligations under international treaties, carried out by specially authorized international bodies;
- application of measures of responsibility for causing damage to the environment of other states or areas outside the Republic of Kazakhstan» .
It is necessary to take into account and resolve not only the issues of water use in the irrigation process, but also the need to address the issue of equitable distribution and quality use of water resources.
Conclusion.The volatility between the anthropogenic pressure on water bodies and their ability to restore meant that the ecological disaster was typical of almost all major river basins, and inadequate funding for the needs of rational water use led to an extremely poor (in critical situation) technical condition of water supply systems and a serious acute supply of drinking water water. This situation requires the improvement of all available legal means to ensure the ecological safety of water bodies, including criminal liability for violation of water use.
The Domestic Criminal Code only prosecuted individuals are brought to justice, but in practice environmental damage is often caused by a legal entity.
Taking into account the above, supporting the opinion of E. Mukhamedzhanov, we propose the circumstance as «the commission of a crime by a person, using a legal entity or legal entities where he works or is their founder» as aggravating in the Criminal Code of the Republic of Kazakhstan.
To strengthen these provisions in criminal law, punitive policies are the normal state of public and public institutions, the establishment of limits for the exercise of the rights of citizens and freedoms without interference. Inseparably related criminal proceedings and punitive policies as an integral part of the fight against crime should be implemented only within the limits established by the criminal policy.
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