Criminal practice for environmental crimes. Judicial practice on crimes against ecological safety and natural environment

A.Yu. Chikildina

Application of the environmental legislation of the Russian Federation

Volgograd

Reviewers:

Anisimov A.P. - Leading Researcher, Research Institute modern law FGOU VPO "Volgograd Academy public service", doctor legal sciences

Vasilyeva E.A.- Director of VOOO EC "Volgograd-Ecopress"

Chikildina A.Yu. Application of the environmental legislation of the Russian Federation: Educational-practical guide. - Volgograd, 2007.

This practical guide to the judicial protection of environmental rights and the application of environmental legislation of the Russian Federation is an analytical review of the experience of public organizations in the protection of public environmental interests. The manual contains recommendations on judicial protection of environmental human and civil rights, as well as comments on various procedural documents from the judicial practice of the Volgograd regional public organization Information Center "Volgograd-Ecopress" and other public environmental organizations.

The manual contains a list of useful phone numbers of organs state power in the Volgograd region, local authorities dealing with issues of nature management and environmental protection. The proposed publication has an applied character and can be in demand in the practical activities of both environmental and human rights organizations and citizens in order to protect their constitutional rights.

The work is aimed at a wide range of readers, primarily citizens living in ecologically disadvantaged areas, but may be of interest to teachers, graduate students, law students, state and municipal employees, and all those who are not indifferent to environmental issues in Russian Federation.

Introduction ……………………………………………………………………

Chapter 1. Analysis of judicial practice in environmental cases …………

Chapter 2. Topical issues of theory and practice of environmental law ..

Chapter 3. The role of environmental public organizations in protecting the right of citizens to a healthy environment ……………………………… ..

Samples of statements of claim, complaints, appeals to state authorities and local self-government ………

List of authorities and local self-government bodies exercising powers in the field of environmental protection …………………………… ..

Chapter 1. Analysis of judicial practice in environmental cases

Article 42 of the Constitution of the Russian Federation states that "everyone has the right to a favorable environment, reliable information about its condition and to compensation for damage caused to his health or property by an environmental offense." The right to a healthy environment is a type of subjective rights citizens. It corresponds to the duties of state authorities and local self-government bodies to maintain the environment in a favorable state, as well as to carry out various measures to eliminate the negative effects of an unfavorable natural environment on human life and health.

Nevertheless, the rights of citizens are often violated due to the failure of the authorities to fulfill their duties, the issuance of illegal regulations, or a direct violation of the law by industrial and other organizations. In this case, citizens have the right to use both non-jurisdictional and jurisdictional ways to protect their rights. TO non-jurisdictional forms include self-defense of civil rights and measures of operational influence, namely, the right of citizens to hold demonstrations, pickets and other similar events. Jurisdictional methods of protection involve appeals to public authorities and with statements, complaints, suggestions, claims.

The right to defense is an integral part of any civil law. It is understood as the ability of a competent person to use law enforcement measures for the purpose of restoring his right and suppressing illegal actions in future.

How can citizens themselves defend their rights and how is this provided by law?

First, the law provides for the right to establish public associations, foundations and other non-profit organizations operating in the field of environmental protection. The procedure for creating such non-profit associations is provided in Civil Code RF, Federal Law of May 19, 1995 No. 82 "On Public Associations" and other federal laws. All legal entities, including non-profit environmental associations, acquire provided by law rights and obligations from the moment of their state registration.

Secondly, citizens have the right to take part in meetings, rallies, pickets, processions and demonstrations, referendums and other environmental protection actions that do not contradict legislation. This provision specifies the provided Art. 31 of the Constitution of Russia, citizens have the opportunity to gather peacefully without weapons, hold meetings, rallies and demonstrations, processions and pickets. When implementing given right violation of the rights and freedoms of other persons, as well as the use of this right for the violent change of the constitutional order, incitement of racial, national, class, religious hatred, for the propaganda of violence and war are not allowed. In the Russian Federation, there is a notification procedure for exercising the right to hold public events, i.e. they do not require special permission from the authorities. So according to Art. 7 Federal law dated June 19, 2004 No. 54-FZ "On meetings, rallies, demonstrations, processions and pickets" executive power of a constituent entity of the Russian Federation or a local self-government body no earlier than 15 and no later than 10 days before the day of its holding. When picketing by a group of persons, a notice of a public event may be submitted no later than three days before the day of its holding.

On the basis of the Law of the Volgograd Region of April 7, 2005 No. 1044-OD "On the Procedure for Submitting a Notice of a Public Event in the Territory of the Volgograd Region", a notice of a public event is submitted by its organizer in writing in the prescribed form (see Appendices) in duplicate directly to the executive and administrative body of the municipality. If a public event is planned to be held on the territory of several municipalities, notifications are submitted to the executive and administrative bodies of the relevant municipalities of the Volgograd region.

If the organizers of the public event are citizens of the Russian Federation, copies of their passports or other documents replacing the passport shall be attached to the notification of the public event.

If the organizer of a public event is a political party, another public association, their authorized representative, together with a notification of the holding of the public event, submits copies of the constituent documents of the political party, public association, their decision to hold the public event, as well as a document confirming its powers.

The head of the local administration, who received a notification of a public event, sends a copy of it to the executive body of state power of the Volgograd region and the internal affairs bodies of the corresponding municipality.

Thirdly, clause 2 of article 11 of the Federal Law "On Environmental Protection" dated January 10, 2002 enshrines the right of citizens to demand from state authorities, local governments, and other organizations to provide timely, complete and reliable environmental information, which is a specification one of the basic principles of environmental protection. Under environmental information any information about the state of waters, atmosphere, soil, living organisms and ecosystems and their changes should be understood, about the activities, factors and measures that have or may have an impact on them, as well as about the planned or ongoing activities for the use natural resources and the consequences of this for the environment, including the data required to assess these effects on the environment and the population, and, in addition, on measures aimed at protecting and rational use of the environment.

This information is available, first of all, by specially authorized state bodies in the field of environmental protection. Competent authorities receive such information about the state of the environment through monitoring, that is, a system of measures to monitor the quality of the environment. However, when it comes to size and character harmful effects business entity, then at the request of a public or other non-profit environmental association, the head of such a legal entity must provide the relevant information. It should be noted that information about the state of the environment does not belong to the number of information that constitutes a state secret (see Art. 7 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 "On state secrets"(As amended on August 22, 2004). If officials have not provided the requested information within a month, citizens have the right to apply to a higher official, to the prosecutor's office, or to the court on the basis of Article 8.5 of the Code of Administrative Offenses for evading providing environmental information.

Fourthly, citizens have the right to apply to state and local authorities and other organizations with complaints, statements and proposals on environmental protection, negative impact on it, to receive timely and substantiated answers. The current legislation provides for three main forms of appeal. Firstly, citizens can apply to state and local government bodies with suggestions- that is, recommendations for improving the work of environmental authorities, their structure, proposing ways to solve certain environmental problems. Secondly, through statements a citizen makes a request to a specific official for assistance in the implementation of his constitutional right to a favorable environment, the main elements of which are specified in the legislation of the Russian Federation and the constituent entities of the Russian Federation. Third, through complaints citizens have the right to demand the elimination of violations of their environmental rights as a result of a decision or other actions (inaction) of the relevant officials.

Fifthly, citizens have the right to sue in court for compensation for damage to the environment. Damage caused by an environmental offense can be considered in two aspects. On the one hand, damage to the environment, which manifested itself in the destruction of forests, wildlife, deterioration of water quality, etc. On the other hand, as damage that is caused (can be caused) by an unfavorable environment to the life, health and property of citizens.

Accumulated arbitrage practice testifies to the fact that more and more actively in recent years, citizens have been using the judicial method to protect their rights. In this case, citizens have the right to apply to the courts general jurisdiction with claims of both a personal nature (to protect the health of citizens) and to protect the property interests of citizens.

Along with appealing to the courts of general jurisdiction, citizens have the right to appeal to the Constitutional Court of the Russian Federation. So, by decree The Constitutional Court RF of December 1, 1997 No. 18-P "In the case of checking the constitutionality of certain provisions of Article 1 of the Federal Law of November 24, 1995 No. 179-FZ" On Amendments and Additions to the Law of the Russian Federation "On social protection citizens exposed to radiation as a result of the disaster on Chernobyl nuclear power plant"A number of provisions of this Federal Law were recognized as non-constitutional, which reduced the amount of payments and benefits to citizens who suffered from radiation, as well as narrowed the circle of persons using such benefits. The court pointed out the inadmissibility of reducing the amount of obligations previously assumed by the state in relation to such citizens.

Sixth, citizens have the right to provide assistance to state authorities and local self-government bodies in resolving issues of environmental protection.

However, the judicial practice of citizens' protection of their environmental rights is developing rather sluggishly. For greater organization, regional public environmental organizations most often turn to court on behalf of citizens.

All environmental organizations (associations) by criterion character the activities carried out can be divided into three groups.

Firstly, public associations that carry out non-legal types of environmental protection, the list of which is not complete, for example, scientific, educational, educational, cultural and recreational, etc.

Secondly, public organizations dealing with specific environmental problems, for example, animal protection (Inter-republican charitable foundation for the protection of animals "Rossiyanin") or preservation of species diversity of birds in Russia (Union for the Conservation of Birds in Russia).

Thirdly, public associations participating in the development of regulatory legal acts, parliamentary hearings, protecting the environmental rights of citizens in courts, that is, providing legal assistance to the population (Ecoyurist, Lawyers for the Environment, Ecopress, etc.) ), as well as carrying out public environmental expertise, organizing referendums on environmental issues.

It is the third group of organizations that is “stimulating” in the development of judicial and human rights practice in general, which is represented in the Volgograd region by the Volgograd regional public organization - Information Center “Volgograd-Ecopress”.

Volgograd Regional Public Organization Information Center"Volgograd-Ecopress" (VOOO IC "Volgograd-Ecopress") was established in 1993, official registration received on March 3, 1994. In accordance with the new legislation, it was re-registered for public organizations in 1999.

The organization has 97 members.

The main directions of the organization's work: work with environmental information and the media; non-formal environmental education and awareness; involvement of the population in the process of adopting ecologically meaningful decisions; monitoring of the state of the environment; especially dangerous ecotoxicants; conservation and restoration of biological and natural landscape diversity; food safety.

Since 1994, the organization has had an express laboratory for the analysis of chemical water pollution by 140 indicators.

Since 1995, a public ecological library has been operating at Volgograd-Ecopress. The library funds are about 3 thousand volumes.

The organization maintains constant contact with environmental state organizations, research institutes, educational institutions, major polluting enterprises in order to prevent the deterioration of the environment in the territory of Volgograd and the Volgograd region.

IC "Volgogard-Ecopress" successfully cooperates with international, foreign and Russian public and other organizations working in the field of improving the quality of life and health of the population, environmental protection. Over the past 5 years, 7 international partner projects have been implemented

Press releases for the media are issued on a regular basis, press conferences are held periodically; educational booklets are published.

In 2005, IC "Volgograd-Ecopress" organized and conducted a seminar on the creation of PRTRs (Pollutant Release and Transfer Registers) for NGOs in the European part of Russia; studies were carried out for the presence of pesticides in agricultural products grown in the Volgograd region, in soil and water bodies; with the support of the regional Ecological Fund, a seminar was organized on the problem of reforming the environmental financing system in the Volgograd region with the invitation of OECD experts; two massive information and educational actions were carried out.

As an example, we invite the reader to get acquainted with the course of both court cases and cases resolved through appeals to the authorities, to the prosecutor's office.

One of the most notorious cases was the trial caused by the mass poisoning of schoolchildren due to a gas leak from an oil refinery in the Krasnoarmeisky District of Volgograd (VNPZ).

On April 17, 2003, an accident occurred at the plant, and a gas cloud covered two nearby high schools. In a short period of time, 94 children and 4 adults were hospitalized.

According to the Act of the Commission for the Investigation of Cases of Infliction of Children Wounded on the Day of the Accident at the Oil Refinery of 17.04.2003, the causal relationship between the poisoning of children and the accident (by composition harmful substances) not found. However, public organizations in Volgograd immediately turned to the prosecutor with a request to investigate the situation and find out the guilt and involvement of VNPZ in the poisoning of people. The prosecutor's office opened a criminal case No. 049484 and as a result of the investigation, the involvement of the VNPZ in the poisoning of children was revealed, and thus the affected townspeople had a real opportunity to judicial procedure submit your claims for compensation for harm to health. In this case, environmental and public organizations played the role of real human rights organizations.

In recent years, the right of public and other non-profit associations has become increasingly important to submit to the state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation, local self-government bodies, the court of appeals to cancel decisions on the design, placement, construction, reconstruction, operation of facilities, economic and other activities of which may have a negative impact on the environment, on the restriction, suspension and termination of economic and other activities that have a negative impact on the environment.

One example of this area of work of public environmental associations is the attempt of the Volgograd Regional Environmental Association "Ecopress" to judicially demand the termination of the construction of residential elite houses in the recreational area of the city of Volgograd.

The conflict between the ecological community of the city of Volgograd with LLC Rosoil and the administration of the city of Volgograd began in the fall of 2002, when, in spite of the tendency in the city of environmental degradation, the Volgograd administration adopted a resolution of October 25, 2002 No. 1273 “On seizure of land plots and provision of a land plot for construction to the limited liability company Rosoil. Part of the specified land plot (4500 sq. M.), Withdrawn for construction from the cultural department of the Volgograd city administration, was previously occupied by the Central Park of Culture and Leisure (hereinafter referred to as the Central Park of Culture and Leisure), which is a municipal cultural institution of Volgograd that carries out cultural and leisure activities, and, using natural resources, organizes mass recreation and entertainment for various groups of the population (clause 1.1 of the Charter of the municipal cultural institution TsPKiO).

The seized land plots were leased to OOO Rosoil for three years for the construction of nine seventeen-storey buildings in blocks 59, 61, 61a of the Central District of Volgograd. In order to prepare the site for construction, it was necessary to destroy acacia, birch, elm, poplar, ash, blue spruce, chestnut - in the amount of 137 pieces, while only on the territory of JSC "Research Institute of Energy Structures" (part of the territory of which was also transferred for construction ), more than 60 half-century trees 25 meters high were cut down.

Meanwhile, according to paragraph 1 of Art. 45 of the Urban Planning Code of the Russian Federation of May 7, 1998, in force at that time, recreational zones are intended for organizing recreation areas for the population and include parks, gardens, urban forests, forest parks, beaches, and other objects (practically literally, this rule is reproduced in clause 9 of article 85 of the RF LC). Green spaces growing in parks that are not part of the forest fund perform the main ecological function of maintaining the ecological balance, although other categories of green spaces in urban and rural settlements are also involved in solving this problem.

Therefore, according to paragraph 2 of Art. 45 City Code of the Russian Federation, in recreational areas not allowed construction and expansion of existing utility and storage facilities not directly related to the operation of health and recreational facilities. Based on the foregoing, the reduction of the park's territory worsens the ecological situation in the territory of the Central District, since the presence of a system of green areas in the city of Volgograd is one of the main factors in improving the ecological situation in the corresponding territory.

In defense of the right of citizens to a favorable environment, with the requirement to invalidate the decree of the head of the administration and to suspend construction in accordance with Art. 3 and paragraph 1 of Art. 22 of the Code of Civil Procedure of the Russian Federation of November 14, 2002, Article 1, Clause 1 of Art. 12 of the Law on Environmental Protection; Clause 1 of Art. 45 City Code of the Russian Federation; clause 9 of Art. 85 of the RF Labor Code, the Volgograd regional public organization "Information Center" Volgograd-Ecopress "spoke. The case was accepted for consideration by the Central District Court of the city of Volgograd, and although the claim was rejected, it seems very important to overcome (at least in a single case) the usual passivity of the public in the matter of environmental protection, since this case was able to acquire a wide public response in Volgograd.

When considering the general human rights practice, it follows that the most widespread is judicial practice in cases related to environmental expertise. Moreover, the courts do not have a clear idea of what may be the subject judicial challenge... In Art. 18 of the Federal Law "On Ecological Expertise" dated November 23, 1995 (as amended on December 18, 2006) provides that the conclusion of the state ecological expertise can be challenged in court. But the conclusion of the state ecological expertise is the conclusion of the state expert commission, approved by the corresponding order. Thus, it is the legality of the law that needs to be challenged in court. solutions(order) of the executive authorities in the field of environmental impact assessment on the approval of the conclusion of the expert commission of the state environmental impact assessment. Thus, a citizen K., a resident of the Komi Republic, applied to the Izhma Federal District Court of the Komi Republic with a statement on the recognition of illegal and invalid the order of the Committee of Natural Resources in the Komi Republic dated May 21, 2002 No. the oil pipeline Makaryelskoye field - terminal "Irael" and Order No. 349 dated July 5, 2002.

The applicant substantiated his claims by the fact that when making the contested decisions, a number of violations of the legislation on environmental impact assessment were committed. In particular, a representative of the institute, which is one of the developers of the facility, took part in the examination; in the materials accepted for the state environmental impact assessment, the project for the construction of the oil pipeline, there were no materials from the discussion of the object of the state environmental impact assessment with citizens and public organizations, organized by local governments, as well as materials from the impact assessment on the environment of the planned economic activity.

The Izhma Federal Court of the Komi Republic found the complaint regarding the absence of draft materials of discussion (public hearings) during the state environmental review as justified, and the order of the Committee of Natural Resources for the Komi Republic No. ) and the order of the Committee of Natural Resources for the Komi Republic No. 349 dated 07/05/2002, were declared illegal and invalid from the moment of signing.

The Judicial Collegium for Civil Cases of the Armed Forces of the Republic of Komi by ruling dated 09.12.200. supplemented the operative part of the court decision, pointing out the illegality of the order No. 274 of 21.05.2002. in terms of approving the composition of the expert commission in accordance with the appendix (clause 2) and the validity of K.'s complaint in terms of violations during the formation of the expert commission by the specified order.

Thus, the stated requirements were satisfied by the court of first and cassation instances in full.

An example of the complained actions there may be a challenge in court of the response of the executive authority in the field of environmental expertise on the refusal to provide the requested information, that is, the response of the official on the letterhead of the organization.

A resident of the city and the Far East MEOO "Ekodal" applied to the court of the Industrial District of Khabarovsk with a statement challenging the actions of the head of the Main Directorate for Environmental Protection and Environmental Protection of the Ministry of Natural Resources of Russia for the Khabarovsk Territory - refusal to provide a copy of the conclusion of the state ecological expertise of the production project preparatory work for the construction of an oil export terminal in the village. De-Kastri Ulchsky district of the Khabarovsk Territory. The applicants referred to a violation of their rights under Art. 42 of the Constitution, art. 3,8,14,18 Federal Law "On Environmental Expertise", Art. 3, 1 of the Federal Law "On Environmental Protection", Article 12 of the Federal Law "On Information, Informatization" (already invalidated). Decree of the President of the Russian Federation of 31.1 1993. No. 2334 "On Additional Guarantees of Citizens' Rights to Information". The applicants considered that the unlawful refusal to submit a copy of the expert opinion of the project for the preparatory work for the construction of the facility violated their right to obtain reliable information about the state of the environment, violated the principles of the state environmental expert review, and created obstacles to the exercise of the right to appeal the opinion in court.

The chairman of the GUPR referring to the fact that, at the request of the applicants, they were sent written information about the results of the state environmental impact assessment - the presence of a positive conclusion on the project, which, in the opinion of the GUPR of the Ministry of Natural Resources of Russia for the Khabarovsk Territory, meets the requirements of clause 1 of Article 19 of the Federal Law "On environmental examination ". The obligation to send a copy of the expert opinion to citizens and public organizations is not provided for by law and other regulatory legal acts.

The court dismissed the claim, and at the cassation instance its decision was upheld.

In the supervisory instance - the Khabarovsk Presidium regional court recognized as subject to cancellation the court decisions in the case due to incorrect interpretation and application of the applicable substantive law.

A new recognition decision was issued in the case illegal refusal The Main Directorate of the Ministry of Natural Resources of Russia in the failure to submit a copy of the conclusion of the state environmental examination of the project for the preparatory work for the construction of an oil export terminal in the village of De-Kastri. The court ordered the GUPR to submit a copy and on October 22, 204, the ruling of the supervisory instance court came into legal force.

An example of cases of challenging regulatory legal acts is challenging the decision of the Governor of the Sakhalin Region on the basis of Chapter 24 of the Code of Civil Procedure of the Russian Federation.

Citizens of the Sakhalin Region and the Regional Public Organization "Ecological Watch of Sakhalin" applied to the Sakhalin Regional Court with a request to invalidate the Resolution of the Governor of the Region No. 29 dated May 23, 2003 "On Amendments to the Resolution of the Governor of the Sakhalin Region No. 245 of 07.07.99 "On the formation of the state natural complex nature reserve of regional significance" Vostochny "in the Smirnykhovsky district."

The Vostochny Wildlife Refuge with an area of 67646 hectares was established in 1999 in order to preserve and restore natural complexes and unique ecosystems in the Pursh-Pursh and Vengeri river basins. According to clause 1 of the Regulations, a 1 km wide sea area along the coast of the Sea of Okhotsk, bounded by the mouth of the Beregovaya River and the watershed of the Kirkyn and Kerosinnaya rivers, was assigned to the territory of the reserve. Clause 5.1 of the Regulations prohibits commercial fishing throughout the territory of the reserve.

The contested resolution of the acting Governor of the Sakhalin Region, the eastern border of the reserve was changed and it became a section of the coast of the Sea of Okhotsk, bounded by the mouth of the Beregovaya River and the watershed of the Kirkyn and Kerosinnaya rivers along the line of the highest tide. From clause 5.1 of the provision, the indication that commercial fishing is prohibited on the territory of the reserve, and in clause 5.5, which allows sports and recreational fishing on the territory of the reserve, a paragraph was added, according to which commercial fishing is allowed in the adjacent sea area.

The applicants pointed out that as a result of the issue of the contested decision, the regime of the protected areas had been violated. Contrary to the requirements of Art. 12 of the Federal Law "On Environmental Expertise", the draft resolution did not pass the state environmental expertise, therefore, the implementation of the contested resolution, taking into account the presumption of environmental hazard, violated constitutional law applicants for a favorable environment. The court on the basis of Art. 253 Code of Civil Procedure recognized the contested resolution of the governor invalid from the date of its adoption.

A certain contribution to the practice of judicial protection against illegal regulations was made by the Supreme Court of the Russian Federation when deciding the case on changing the boundaries of the Lindulovskaya Roscha nature reserve. For example, on December 19, 1995, the government of the Leningrad Region adopted a decree according to which the territory of the Lindulovskaya Roscha nature reserve was reduced (584 out of 939 hectares of forest were withdrawn). However, the reason for changing the boundaries of specially protected natural areas are substantiating materials that have received a positive conclusion of the state ecological expertise. According to the interregional public association "Green Party", the envisaged change in the boundaries of the specially protected natural area of the Lindulovskaya deciduous grove violates the rights of citizens to a favorable environment and may negatively affect the state of the animal world. In the definition The Supreme Court RF dated January 23, 1998, it was indicated that changing the boundaries of the reserve could indeed lead to a deterioration in the state of the natural environment, but this issue should be clarified by the state ecological expertise, which was not carried out. Therefore, the decision of the government of the Leningrad region was canceled.

Thus, at this stage of the formation of civil society, the most indicative is the active human rights movement of environmental organizations. The emerging jurisprudence reflects that to ensure a favorable quality of the environment, it is not enough to have a single normative consolidation of environmental human rights. An effective mechanism for their implementation is needed, including a system of public authorities competently performing the environmental function of the state in the interests of citizens, the presence of a system of environmental education and upbringing of officials, measures legal responsibility allowing to adequately respond to violations of environmental legislation.

Chapter 2. Topical issues of theory and practice

Keywords

ARBITRAGE PRACTICE / ENVIRONMENTAL LEGISLATION / ENVIRONMENTAL PROTECTION / ENVIRONMENTAL POLLUTION / RESPONSIBILITY OF OFFICERS/ GL. 26 of the Criminal Code of the Russian Federation / GL. 8 Administrative Code of the Russian Federation / CH. 8 OF THE ADMINISTRATIVE CODE/ CH. 26 OF THE CRIMINAL CODE / JURISPRUDENCE / ENVIRONMENTAL LEGISLATION / ENVIRONMENTAL PROTECTION / POLLUTION OF THE ENVIRONMENT / RESPONSIBLE OFFICIALS / LITIGATION

annotation scientific article on law, the author of the scientific work is E.V. Adamanova.

The main problems of pre-trial and judicial practice on environmental law enforcement, environmental protection and health protection of citizens. With a relatively small number of litigations on environmental issues, a tendency of their growth is noted, the main reasons why the resolution of environmental disputes or does not reach judicial trial, or, already in court, is not resolved at the proper level. The main problems are: passivity and unwillingness of citizens to go to court if the violation of environmental standards does not affect their personal interests; lack of awareness of the population about the possibility of protecting their rights in court on issues related to the violation of the state of the environment and the right to compensation for damage caused to health as a result of an environmental crime; corruption component in the environmental sphere; problems in judicial system(time and order of the trial, adherence to deadlines, complexity of proof, environmental expertise, etc.); problems associated with the enforcement of articles of the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation on OS protection, such as insufficient clarity of the text of the law (especially in terms of the consequences of violations and concretization of norms in Chapter 26 of the Criminal Code of the Russian Federation and Chapter 8 of the Administrative Code of the Russian Federation), many concepts and signs, difficult to decipher, a large number of blanket dispositions and objective signs that require additional reference to the normative legal acts related natural resource and other sections of legislation; the absence in the legislation of a clearly defined responsibility of the bodies and persons controlling the state of the environment, including due to incomplete information on the emissions of enterprises online; insufficient responsibility for non-compliance, and often a complete lack of preventive measures aimed at preventing environmental crimes.

The text of the scientific work on the topic "Problems of the application of environmental legislation in judicial and pre-trial practice"

ENVIRONMENTAL LAW

PROBLEMS OF APPLICATION OF ENVIRONMENTAL LEGISLATION IN JUDICIAL AND PRE-JUDICIAL PRACTICE

E.V. ADAMANOVA, Ph.D. department rights of MGUL

[email protected] Federal State Budgetary Educational Institution of Higher Professional Education "Moscow State Forest University" 141005, Moscow region, Mytishchi-5, st. 1st Institutskaya, 1, MGUL

The main problems of pre-trial and judicial practice on law enforcement in the field of ecology, environmental protection and health protection of citizens are considered. With a relatively small number of litigations on environmental issues, a tendency of their growth is noted, the main reasons are analyzed due to which the resolution of environmental disputes either does not reach court proceedings, or, already in court, is not resolved at the proper level. The main problems are: passivity and unwillingness of citizens to go to court if the violation of environmental standards does not affect their personal interests; lack of awareness of the population about the possibility of protecting their rights in court on issues related to the violation of the state of the environment and the right to compensation for damage caused to health as a result of an environmental crime; corruption component in the environmental sphere; problems in the judicial system (time and order of the trial, adherence to deadlines, difficulty of proof, environmental expertise, etc.); problems associated with the enforcement of articles of the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation on OS protection, such as insufficient clarity of the text of the law (especially in terms of the consequences of violations and concretization of norms in Chapter 26 of the Criminal Code of the Russian Federation and Chapter 8 of the Administrative Offenses Code of the Russian Federation), many concepts and signs, difficult to decipher, a large number of blanket dispositions and objective signs that require additional reference to the normative legal acts of related natural resource and other sections of legislation; the absence in the legislation of a clearly defined responsibility of the bodies and persons controlling the state of the environment, including due to incomplete information on the emissions of enterprises online; insufficient responsibility for non-compliance, and often a complete lack of preventive measures aimed at preventing environmental crimes.

Key words: judicial practice, environmental legislation, environmental protection, environmental pollution, responsibility of officials, Ch. 26 of the Criminal Code of the Russian Federation, Ch. 8 of the Administrative Code of the Russian Federation.

The issues of ecology and environmental protection (OS) occupy an important place in the life of the citizens of our country. The right of every citizen to a favorable OS, reliable information about its condition and compensation for damage caused to his health or property by an environmental offense is enshrined in Art. 42 of the Constitution of the Russian Federation.

Situations related to violation of environmental laws arise constantly and everywhere. At the same time, judicial practice shows that, in percentage terms, the number of court cases related to violation of environmental rights of citizens and environmental protection is not so great. As of 2011, environmental crimes accounted for 1.6% of all registered crimes on the territory of the Russian Federation, however, researchers note a rather dangerous trend of their growth.

Relatively small number of cases initiated in environmental disputes,

rather, it speaks not of well-being in the field of environmental protection, but of a different kind of reasons:

First, quite often the unwillingness of citizens to go to court is due to their passivity in matters of their own right to a healthy and favorable environment. Citizens rarely apply for judicial protection if the violation of environmental standards does not affect their personal interests.

Secondly, an important role is played by the lack of awareness of the population about the possibility of protecting their rights in court on issues related to the violation of the state of the environment, with the right to compensation for damage caused to health as a result of an environmental offense. Until now, citizens receive basic information about the state of the environment from the media.

Thirdly, it is impossible to exclude the corruption component in issues related to the environment and environmental protection.

Fourthly, if such cases do reach the courts, they often face a number of problems associated with

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the time and order of the trial, compliance with the deadlines provided for the consideration of cases, the complexity of proof, environmental expertise, etc.

Fifth, most researchers point to problems associated with the enforcement of articles of the Criminal Code of the Russian Federation on the protection of OS. First of all, they include the lack of certainty of the text of the law; an abundance of concepts and signs that are difficult to decipher; a plurality of blanket dispositions and objective features, to determine the content of which it is necessary to additionally refer to the normative legal acts of the related environmental and natural resource legislation.

And, finally, the legislation lacks a clearly defined responsibility of the regulatory authorities for insufficient control over the state of the environment, including due to the inaccessibility of information on the emissions of enterprises online.

A feature of the application of legal liability for environmental offenses is that the norms of environmental legislation are reference and, in most cases, determine the lists of offenses in relation to certain types natural resources, and specific penalties for them are established in civil, administrative and criminal legislation. In the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 18, 2012 N 21 "On the application by courts of legislation on liability for violations in the field of environmental protection and natural resource use" it is stated that "when considering cases of environmental offenses, the courts should be guided by the provisions of civil, administrative, criminal and other sectoral legislation, including the provisions of the Land, Forest, Water Codes of the Russian Federation, Federal Law of January 10, 2002 N 7-FZ "On Environmental Protection", other laws and other regulatory legal

acts of the Russian Federation and its subjects in the field of environmental protection and nature management ”. The plaintiffs in such cases are individual citizens, organizations and the prosecutor's office represented by the environmental prosecutor. The prosecutor, by virtue of the powers given to him by Art. 45 of the Code of Civil Procedure of the Russian Federation, may apply to the court with a claim to protect an indefinite circle of persons, regardless of whether harm has been caused to the OS as a result of the economic activity of the defendant (see, for example, the Determination of the Moscow City Court of 22.06.2010 in case No. 33-18218 , The cassational definition of the Amur regional court from 15.02.2012 in case N 33-465 / 2012 and others). The right of the prosecutor to participate in cases related to environmental offenses is indicated by paragraph 30 of the Resolution of the Plenum of the Supreme Court of 18.10.2012 N 21.

Judicial practice shows that individuals rarely apply to courts on environmental issues as plaintiffs. For example, in 2014, the Shchelkovo City Court of the Moscow Region considered only two similar cases: one against citizen I., accused of committing a crime under Art. 260 h. 3 of the Criminal Code of the Russian Federation, which committed illegal logging forest plantations on an especially large scale at the site of the victim V., who initiated this case (Case N ° ... dated 04/28/2014). Another case was considered at the suit of citizen L. to SNT "Luch" with the requirement to liquidate the landfill. (Case No. dated 19.03.2014).

In rural areas and in small towns, courts of general jurisdiction in relation to individuals most often, criminal cases are initiated related to illegal tree felling, illegal hunting and fishing. In particular, the analysis of the judicial practice of the Kemerovo Regional Court for 2007-2009. showed that most of the criminal cases in the Kemerovo region were initiated under Art. 260 (illegal felling of forest plantations). The submitted document notes that the motive and purpose of this

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the types of crimes do not matter, but analysts drew attention to the problem associated with the main reasons explaining such crimes - they are mainly committed by unemployed villagers who either sell illegally felled timber, since they have no other opportunity to feed their families, or let it for heating your home. The same document draws attention to the problem associated with the enforcement of this article, namely, the excessive severity of the courts in relation to the defendants (15 out of 18 convicts were sentenced to imprisonment). Art. 260 of the Criminal Code of the Russian Federation provides for other possible sanctions, such as a fine, suspended sentence or correctional labor. The courts of the Kemerovo region considered the corpus delicti for each crime taking into account individual circumstances, however, they often did not apply such sanctions, citing the fact that it was impossible to provide jobs for correctional work due to unemployment in villages, and the fines for the damage caused are so high that the convicts simply will not able to pay for them. Therefore, as noted in the analysis of judicial practice, when imposing punishment, the courts proceeded from the fact that "the punishment should be such that it was possible to actually execute it."

A generalization of the judicial practice of the Penza region in 2007 showed that 9 criminal offenses were committed in the field of ecology, and all of them were under Art. 260 of the Criminal Code of the Russian Federation (illegal felling of forest plantations). But, in contrast to the Kemerovo region, the main punishment here was conditional imprisonment with a probationary period or correctional labor with a deduction of 15% of the earnings of convicts in the state revenue. In the Federal Law of December 7, 2011 N 420-FZ, the sanctions of Articles of Ch. 26 of the Criminal Code of the Russian Federation have been largely reformed, however, researchers draw attention to the fact that in the Review of activities federal courts general jurisdiction and justices of the peace judicial practice on

There is almost no mention of criminal cases related to the consideration of environmental crimes by the courts, which indicates a certain underestimation of the state of judicial practice in this category of cases. In general, according to researchers, more than 90% of punishments in such cases are still not associated with imprisonment.

More than half of administrative cases (in the Penza region 22 out of 38) are associated with non-compliance with sanitary-epidemiological and environmental requirements when handling production and consumption waste or other hazardous substances, responsibility for which is provided for by Article 8.2 of the Code of Administrative Offenses of the Russian Federation. Most of these proceedings were initiated at the request of prosecutors. Roughly the same picture, in general, is typical for other regions of our country.

Quite often, administrative cases related to violation of environmental management rules are initiated at the request of state organizations. So, administrative proceedings at the request of the Department Federal Service for supervision in the field of environmental management in the Central Federal District was initiated against EcoPoligon-Shchelkovo LLC, which, in connection with violation of the rules for operating the landfill in the course of waste management activities, was involved in administrative responsibility under Art. 8.2 of the Administrative Code of the Russian Federation (Case No. ... dated 13.12.2013). In general, judicial practice shows that the largest number of administrative offenses in the environmental sphere are instituted precisely under Art. 8.2 of the Administrative Code of the Russian Federation.

It should be noted that in a number of cases the courts refuse claims due to lack of evidence of the stated requirements. And this is one of the main problems associated with the avoidance of punishment by persons guilty of violating environmental norms and rules. So, the Kuzminsky District Court of Moscow (Case No. ... dated September 26, 2011) refused to satisfy the requirements of the prosecutor of the South-Eastern Administrative District

of Moscow in the interests of an indefinite

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circle of persons to CJSC "...." on the inventory of emissions of harmful substances into the atmospheric air by stationary sources of the enterprise and obtaining a permit for the emission of harmful (polluting) substances into the atmospheric air. As an argument, the court determined that evidence of the defendant's violation of environmental legislation during the consideration of this case was not provided to the court. This court decision does not indicate the unlawfulness or incompetence of the prosecutor's demands, but the weakness regulatory framework the legislation itself, the complexity of proving the causal relationship, the identification of a specific culprit, the identification of the source of pollution and negative consequences, which often do not appear immediately.

To a large extent, this also applies to the application of Art. 250 of the Criminal Code of the Russian Federation, according to which in 2010 only 2 out of 27 cases were sent to courts across Russia. Such an extremely low indicator speaks of the urgent need to improve and tighten legislation in terms of threats of harm to the environment and the health of citizens, since the very fact of exceeding the maximum permissible concentration of harmful substances, for example, in a water body, is not punishable under criminal law. Therefore, the researchers point out not the inadmissibility of the situation when the environment is contaminated, but at the same time there are no obvious signs of mass death of animals, flora, harm to human life and health and other grave consequences, then they refuse to initiate a criminal case, and the already initiated case is terminated.

Lawyers and environmentalists point out that it is possible to determine the level of pollution of the environment quite accurately, and judicial practice shows that there are significant shortcomings in this matter. Researchers note the ineffectiveness of regulations related to environmental pollution. Environmental crimes resulting in harm to human health are indicated in Ch. 26 of the Criminal Code of the Russian Federation. The creation of a threat of causing significant harm to human health is recorded in Part 1 of Art. 247 of the Criminal Code of the Russian Federation. At the same time, lawyers note that in order to

the norm of this article "worked" in full, in the law, regulatory legal act or clarification of the Supreme Court of the Russian Federation, it is necessary to clearly record which of the excess of the MPC (maximum permissible concentration) harmful substances in the environment is an administrative offense, but which entails criminal liability. Without this concretization, this article remains "only a declaration, a norm not applied, but only" frightening "the persons guilty of environmental pollution." It should be noted that it is necessary to clarify the very concept of MPC, which misleads citizens, when, on the one hand, this excess is already "the maximum (highlighted by the author) permissible concentration", and on the other hand, the excess of MPC by two, three, .. , twenty times, according to the statement of officials and often even medical workers, allegedly does not pose a threat to the health of the population.

This question again became relevant in the fall of 2014, when Moscow residents were subjected to a "gas attack" from repeated air pollution by products of peat bog combustion, burning wood damaged by bark beetles (the so-called "planned burning of felling residues"), and on November 10, 2014 - large-scale pollution metropolitan air with hydrogen sulfide. And if, in the case of the release of hydrogen sulfide, an investigation was initiated (Rosprirodnadzor opened an administrative case under Article 8.21 of the Code of Administrative Offenses of the Russian Federation "violation of the rules for protecting atmospheric air"), then in the case of the burning of wood and peat bogs, no serious conclusions were drawn and not a single fact of violation the rights of citizens did not come to trial. The responsible persons initially reported that there were no fires on their territory, although there were several obvious signs proving a violation of the ecological state and harm to the health of citizens: the presence of an unacceptable concentration of burning in the air and evidence of the presence of numerous fires in the territory of the Moscow region, confirmed by aerial and video footage ... Only after holding forces

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Emergency Situations Ministry of the night (italics ed.) Raids, numerous violations were revealed, fires were extinguished and the burning of felling residues was prohibited until a special order. Thus, there is an obvious irresponsibility, negligence and unwillingness of officials to carry out their work, even in those cases when it concerns their personal health and the health of their family members.

The main reasons contributing to the occurrence of such situations include a lack of funding, actual ownerlessness and inadequate control, and in fact - the homelessness of large areas of the forest, unsatisfactory work of the state forest guard. But the most important thing is the absence in the legislation of clearly fixed preventive measures aimed at the inadmissibility of such situations in the future. That is, on the fact of the violation of the environmental rights of citizens, comprehensive measures were taken to eliminate the consequences, but this does not mean that these violations will not be repeated again until the legal liability for the causes that gave rise to them is toughened.

The lack of proper control over the state of the environment during a period of relative prosperity, that is, not at the time of the next emergency, is a problem that generates uncertainty among citizens and the possibility of various kinds of environmental offenses in various areas. In particular, when flasks with mercury exploded in Moscow during a fire at the Research Institute of Vacuum Technology in November 2014, this caused panic among the residents of the capital. The laboratory at the Main Directorate of the Ministry of Emergency Situations recorded an excess of the MPC for mercury vapors by 7 times in the fire, citizens were assured that no excess was found outside the research institute. At the same time it became known that Mosekomonitoring, an organization that constantly monitors the state of the environment in Moscow, does not have sensors for detecting mercury vapors in the air, which indicates a threat to the health of citizens in the event of unobvious incidents with this dangerous substance. Deputy Head of the Control Center

in crisis situations of the Main Directorate of the EMERCOM of Russia in Moscow, Dmitry Fedotov said that “if there is some kind of incident with mercury at this or that facility, the laboratory of the EMERCOM of Russia in Moscow and Rospotrebnadzor in Moscow will go directly ... population, it is assigned to them. " Thus, the situation with some hazardous substances in Moscow is not constantly monitored, but is recorded on the fact of an emergency. For example, until now, no one is responsible for the improper disposal of devices containing mercury, which will be sold in our country until 2020. This mainly concerns thermometers and lamps (especially now fashionable energy-saving ones), which citizens throw into garbage chutes without worrying about that the entrances of their residential buildings are gradually becoming dangerous to health and even life, but no inspection of the entrances is being conducted. This, in turn, speaks of another problem - an extremely low level of environmental education of citizens and insufficient control by those responsible for environmental safety.

Another environmentally dangerous situation occurred in the sanitary zone of the Moscow oil refinery, when they were looking for a source of air pollution with hydrogen sulfide. Analyzes of samples in various places showed an excess of MPC in the air by 23 and 30 times isopropylbenzene, a substance extremely hazardous to human health. On this fact, a case was initiated under Part 1 of Art. 251 of the Criminal Code of the Russian Federation "violation of the rules for the emission of pollutants into the atmosphere, if these acts entailed pollution and other changes in the natural properties of the air." Thus, gross violations of environmental standards are most often recorded upon the fact of an emergency, and the necessary monitoring by the state of emissions and waste from enterprises that pose a potential threat to residents is absent.

From the above, the low percentage of cases considered in environmental courts becomes explainable.

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Unfortunately, the majority of officials, both those responsible for environmental safety and those posing an environmental threat, evade responsibility and are not subject to any punishment - neither for insufficient actions to prevent environmental crimes, nor for the obvious distortion of information about what is happening. Of course, it cannot be said that work in this direction is not being carried out and no one is brought to justice, but, in comparison with the scale of environmental violations, this is clearly not enough.

It is indicative that the geographical location of various constituent entities of the Russian Federation to a certain extent determines the nature of violations of environmental legislation. In particular, judicial practice shows that in the Astrakhan, Rostov and other southern regions, as well as in the coastal regions of the north and east of the Russian Federation, citizens mainly commit environmental crimes under Art. 256 of the Criminal Code of the Russian Federation (illegal extraction (catch) of aquatic biological resources).

At the same time, we can talk about a number of environmental offenses and crimes that are widespread everywhere. First of all, these include the already mentioned violations under Art. 8.2 of the Code of Administrative Offenses of the Russian Federation and, since our country continues to be one of the largest forest powers, most often in the environmental field, crimes are committed under Art. 260 of the Criminal Code of the Russian Federation (illegal felling of forest plantations). Here, the most dangerous are crimes committed by a group of persons with selfish ends. The indicators of the number of such crimes cannot be compared with the damage caused to the state. In particular, in the Amur Region, out of 198 criminal cases under Art. 260 of the Criminal Code reviewed for the period from 2005 to 2007, only 7 belong to crimes committed by a group of persons, however, the damage from the activities of these groups amounted to about 9 million rubles, which is comparable to the material damage for all other crimes committed under this article.

Judicial practice shows that in large cities quite a lot of cases are initiated related to environmental pollution and destruction of green spaces. This is primarily due to overcrowding in cities and attempts by citizens or public organizations to protect the environment from further pollution and destruction. And in this matter there can be no trifles: even the cutting down of one or several trees, as well as minor damage to the landscaped area, may become the subject of legal proceedings. In particular, the Izmailovsky District Court of Moscow in December 2010 issued a Decree on compensation for damage for violation of environmental legislation in connection with the illegal destruction of the lawn (Case No. ... dated December 23, 2010). In general, only in Moscow for 2009-2010. considered about 350 cases, including for crimes committed under Art. 260 of the Criminal Code of the Russian Federation. The difference between crimes of this kind in cities and rural areas is that the illegal felling of trees is carried out not for the purpose of their further sale or heating residential premises, but for the release of the territory for construction or other types of economic activity. And here, unfortunately, quite often there is a problem associated with the corruption of officials who allow construction in green areas intended for recreation of citizens and improvement of the ecological situation in cities in general.

At the same time there is whole line cities where the problem of harm to the environment and the health of citizens is permanent, but the government does not make any attempts to improve the situation, including because citizens do not know their legal rights to a favorable environment and do not go to court en masse. First of all, this applies to large industrial cities such as Chelyabinsk, Magnitogorsk, etc., as well as to the so-called monotowns, where the entire infrastructure has developed around one enterprise.

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acceptance, which harms the environment, for example, Segezha PPM in the city of Segezha in Karelia. Officials justify their inaction to change the environmental situation by the fact that such enterprises must simply be closed, and the closure will deprive hundreds of people of their jobs. At the same time, if the state control were properly strengthened with the application of the sanctions imposed by the law, the modernization of production would not be long in coming.

In general, judicial practice on the protection of environmental protection shows that this sphere of activity of the courts does not stand idle and that cases that have come down to trial are mainly resolved in favor of the well-being of citizens. At the same time, there are a number of problems, both in the sphere of citizens' attitude to the state of the environment, and in the judicial system, and they must be solved comprehensively, namely:

Actively involve citizens in protecting their "environmental" interests and rights in court, eliminate their legal illiteracy with the involvement of print media, television and the Internet, and work more actively with schoolchildren and students.

Fight the clumsiness of the judicial bureaucratic machine, increase external support government agencies responsible for compliance with environmental legislation.

The state and society should get rid of corruption in the environmental sphere in the most decisive way.

Introduce the necessary amendments and clarifications to the articles of legislation related to harm to the environment and the health of citizens, especially in terms of articles relating to the threat of harm, as well as specifying the norms of Ch. 8 of the Administrative Code of the Russian Federation and Ch. 26 of the Criminal Code of the Russian Federation, providing for administrative or criminal liability.

Legislatively tighten the responsibility of officials for improper performance their duties, for hiding information and misleading citizens on issues related to the protection of the environment and the health of citizens.

Legislatively strengthen control over the state of the environment using all available means and methods in general and over enterprises that pose a potential threat to the health of citizens, in particular.

Legislatively tighten measures for the prevention of environmental offenses and crimes with the definition of the circle of persons responsible for their observance.

All these issues could be resolved with a strict state control and a sufficient number of competent lawyers who are able, and most importantly, willing to protect the interests of citizens on the protection of environmental protection.

Bibliographic list

1. The Constitution of the Russian Federation. Art. 42.

2. Kruglov, V.V. On the effectiveness of measures criminal liability in the field of environmental protection, use and protection of natural resources in the Russian Federation / V.V. Kruglov, E.Yu. Gaevskaya // Russian legal journal. - 2011. - No. 4. - S. 194-200.

3. Resolution of the Plenum of the Supreme Court of the Russian Federation of October 18, 2012 N 21 // Russian newspaper No. 25. (dated October 31, 2012); Federal Law "On Environmental Protection" dated 10.01.2002.

4.http: //kemerovo.news-city. info / docs / sistemse / dok_iegvdo /

5.http: //www.oblsud.penza.ru/artides/2008/04/011.asp

6. Kashepov, V.P. Development of legislation on criminal liability for environmental crimes: http: // www.center-bereg.ru/640.html

7. Luzhbin, A., Schweiger A. Difficulties in applying Art. 250 of the Criminal Code of the Russian Federation / A. Luzhbin, A. Schweiger // Criminal Law.

2012. - No. 3. - S. 53-58.

8. Popov, I.V. In search of a criterion for the criminal punishability of acts infringing on the natural environment // Russian investigator. 2010. No. 9.P. 13 - 20.

9. Bezruk, A.N. Improvement of criminal legislation aimed at combating crimes related to environmental pollution // Legal policy and legal life. - 2010. - № 2 (39).

10. Tyazhkova, I.M. Environmental crimes in the new Criminal Code

RF. http://www.jursites.ru/ tyazhkova_ekologicheskie_

11. What we breathe. http://www.echo.msk.ru/programs/ blogout1 / 1444506-echo /

12. Where does the wind blow from? http://interfax-russia.ru/Moscow/view. asp? id = 557407

14. The practice of applying criminal and criminal procedural legislation when considering cases of liability for illegal logging (based on the judicial practice of the Amur Region) http: // greenpressa.ru/forum/viewtopic.php?f=30&t=1873

15. Mayorova, E.I. Modern problems of environmental education // Vestnik MGUL - Lesnoy Vestnik. - 2013.

- No. 5 (97). - S. 119-123.

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PROBLEMS OF APPLICATION OF ENVIRONMENTAL LEGISLATION IN THE PRE-TRIAL AND JUDICIAL PRACTICE

Adamanova E.V., pg MSFU

[email protected]

Moscow State Forest University (MSFU), 1st Institutskaya st., 1,141005, Mytischi, Moscow reg., Russia

The main problems of pre-trial and judicial practice of law enforcement in the field of ecology, environmental protection and public health protection are regarded. With a relatively small number of trials on environmental issues there is a trend of their growth, the main reasons because of which the solution of environmental disputes either is not considered in the court or if considered not at the appropriate level are analyzed. The main problems are: passivity and unwillingness of citizens to go to court, if the violation of environmental regulations does not affect their personal interests; population’s unawareness of the possibility to defend their rights in court on matters relating to the violation of the state of the ecological system and population’s unawareness of its right for compensation for damage caused to health as a result of environmental crime; corruption component in the environmentalfield; problems in the judicial system (time and manner of the trial process, adherence to deadlines, the complexity of proof, conduction of environmental assessments, etc.); problems related to the enforcement of articles of the Criminal Code and of the Administrative Code on the Protection of the environment, such as: vagueness of the text of the law (especially considering the consequences of violations and specification of standards in ch. 26 of the Criminal Code and ch. 8 of the Administrative Code), a number of concepts and features that are difficult to interpret, a large number of blanket dispositions and objective evidence requiring further treatment to normative legal acts related to environmental legislation; a lack of well-defined responsibility of those who control the state of the environment in the legislation, including incomplete information on industrial emissions in the "online" regime; a lack of responsibilityforfailure to comply with it, and often a complete lack of preventive measures to prevent environmental crimes.

Key words: jurisprudence, environmental legislation, environmental protection, litigation, pollution of the environment, responsible officials, Ch. 26 of the Criminal Code, Ch. 8 of the Administrative Code.

1. Constitutsiya RF. Statya 42.

2. Kruglov V.V., Gayevskaya E.U. Ob effectivnosti mer ugolovnoy otvetstvennosti v oblasti okhrany okruzhayuschey sredi, ispolzovaniya e okhrany prirodnikh resursov Rossiyskiy yuridicheskiy zhurnal, 2011, no. 4, pp. 194-200.

3. Postanovleniye Plenuma Verkhovnogo Suda Rossiiskoy Federatsii ot 18 octyabrya 2012, No. 21; FZ "Ob okhrane okruzhayuschey sredi" "ot 10.01.2002.

4.http: //kemerovo.news-city.info/docs/sistemse/dok_iegvdo/

5.http: //www.oblsud.penza.ru/articles/2008/04/011.asp

6. Cashepov V.P. Razvitiye zaconodatel'stva ob ugolovnoy otvetstvennosti za ecologicheskiye prestupleniya. Available at: http://www.center-bereg.ru/640.html

7. Luzhbin A., Shveiger A. Slozhnosty primeneniya st. 250 UC RF Ugolovnoyepravo, 2012, no. 3, pp. 53-58.

8. Popov I.V Vpoiskakh criteriya ugolovnoy nakazuemosty deyaniy, posyagayuschikh na prirodnuyu sredu Rossiiskiy sledovatel ’2010, no. 9, pp. 13-20.

9. Bezruc A.N. Sovershenstvovaniye ugolovnogo zaconodatel'stva, napravlennogo na bor'bu s prestupleniyami, svyazannymy s zagryazneniem ocruzhayuschey sredi Pravovayapolitica ipravovayazhizn ’pp. No. 2 (39) 154-159.

10. Tyazhkova I.M. Ekologicheskie prestupleniya v novom UC RF. Available at:

http://www.jursites.ru/ tyazhkova_ekologicheskie_pres.

11. Chem me dishim Available at: http://www.echo.msk.ru/programs/blogout1/1444506-echo/

12. Otcuda veter duyet Available at: http://interfax-russia.ru/Moscow/view.asp?id=557407

13.https: //rospravosudie.com/law

14. Practica primeneniya ugolovnogo i ugolovno-protsessual'nogo zacodatel'stva pri rassmotrenii del ob otvetstvennosty za nezaconnuyu rubku lesa (po materialam sudebnoypractikiAmurskoyasty) Available at fic. 1873

15. Maiorova E.I. Sovremenniyeproblemy ecologichescogo obrazovaniya. Moscow State Forest University Bulletin - Lesnoi vestnic. 2013, no. 5 (97), pp. 119-123.

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Article 250 of the Criminal Code of the Russian Federation

Tadjiev V.M. committed pollution of surface waters, which caused significant harm to fish stocks, harm to human health and massive death of animals. The crime took place in the Kuvshinovsky district of the Tver region. Based on the above, guided by art. 296-300, 303-304, 307-309, 316 and 317 of the Criminal Procedure Code of the Russian Federation, the court sentenced V.M. found guilty of a crime, foreseen in part 2 article 250 of the Criminal Code of the Russian Federation and impose a fine on him in the amount of 100,000 (one hundred thousand) rubles.

Art. 258 of the Criminal Code of the Russian Federation

The prosecutor of the Firovsky district of the Tver region went to court with statement of claim in the interests of the Ministry of Natural Resources and Ecology of the Tver Region to the defendant Kalendrik Aleksey Alekseevich for compensation for damage caused to the state by a crime, in the amount of<данные изъяты>... He motivated his demands by the fact that DD.MM.YYYY at about 19 o'clock A.A. near<адрес>At the indicated time, at Kalendrik A.A., who saw in the forest on the territory<адрес>an individual of a wild animal - a moose, there was a criminal intent for illegal hunting, namely unauthorized prey, that is, shooting a moose. Realizing a criminal intent, Kalendrik A.A., aware that hunting at a given period of time in the Tver region for objects of the animal world is prohibited, without a license for their production, realizing the social danger of his actions, anticipating the onset of socially dangerous consequences in the form of causing environmental harm to the state, in the forest on the territory<адрес>DD.MM.YYYY took aim at about 19 o'clock and deliberately, with the aim of using the elk carcass for personal purposes, fired 2 shots from the TOZ-34R double-barreled hunting rifle, loaded with two cartridges filled with bullets at the elk (female). By his deliberate actions Kalendrik A.A. committed illegal (unauthorized) shooting of a moose (female), causing environmental damage to the state as a result of the destruction of the moose, which, regardless of the cost of the moose, is recognized as major damage, i.e. a crime under paragraph a of Part 1 of Art. 258 of the Criminal Code of the Russian Federation.

Guided by Art. 44, 45, 193-199 Code of Civil Procedure of the Russian Federation, Art. 1064 of the Civil Code of the Russian Federation, the court decided:

The claims of the prosecutor of the Firovsky district of the Tver region in the interests of the Russian Federation represented by the Ministry of natural resources and ecology of the Tver region against Aleksey Alekseevich Kalendrik for compensation for damage caused by the crime shall be satisfied. To recover from Aleksey Alekseevich Kalendrik in favor of the Russian Federation represented by the Ministry of Natural Resources and Ecology of the Tver Region to the budget of the Russian Federation for the damage caused by the crime in the amount of<данные изъяты>To collect from Aleksey Alekseevich Kalendrik to the budget of the municipal formation - Firovsky district of the Tver region, the state fee in the amount of<данные изъяты>

In connection with the issues raised by the courts, and in order to ensure the unity of judicial practice in the application of legislation on liability for violations in the field of environmental protection and natural resource use, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation and Articles 9, 14 of the Federal Constitutional Law of February 7, 2011 No. 1-FKZ "On courts of general jurisdiction in the Russian Federation", states:

1. To draw the attention of the courts to the fact that everyone's right, guaranteed by Article 42 of the Constitution of the Russian Federation, to a favorable environment, reliable information about its condition and to compensation for damage caused to his health or property by an environmental offense, as well as the implementation of the provisions provided for in Part 1 of Article 9 , part 2 of article 36, article 58 of the Constitution of the Russian Federation, is ensured, inter alia, through the correct application of legislation on liability for violations in the field of environmental protection and nature management.

When considering cases of environmental offenses, courts should be guided by the provisions of civil, administrative, criminal and other sectoral legislation, including the provisions of the Land, Forest, and Water Codes of the Russian Federation, Federal Law No. 7-FZ of January 10, 2002 “On Environmental Protection ", Other laws and other regulatory legal acts of the Russian Federation and its subjects in the field of environmental protection and nature management.

The courts should find out what regulatory legal acts govern the relevant environmental legal relations, and indicate in the court decision what their violations were directly expressed with reference to specific norms (paragraph, part, article).

In the absence of such data in the indictment or indictment, which cannot be replenished in the court session, the criminal case must be returned to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure of the Russian Federation in order to remove obstacles to its consideration by the court.

2. Under the infliction of harm to human health in the commission of crimes provided for in Article 246, part 2 of Article 247, part 1 of Article 248, part 2 of Article 250, part 2 of Article 251, parts 1 and 2 of Article 254 of the Criminal Code of the Russian Federation, it should be understood that harm to the health of any severity to one or more persons.

3. Persons using their official position in the commission of crimes provided for in part 3 of article 256, part 2 of article 258 and paragraph "c" of part 2 of article 260 of the Criminal Code of the Russian Federation should include both officials and civil servants and employees of local government , not belonging to the number of officials, as well as persons permanently, temporarily or by special authority performing organizational and administrative or administrative and economic functions in commercial organization regardless of the form of ownership or in non-profit organization that is not a state or municipal institution.

Explain that the use of official position is expressed not only in the deliberate use of the above-mentioned persons of their official powers, but also in influencing, based on the significance and authority of the position they hold, on other persons in order to carry out illegal harvesting (catching) of aquatic biological resources, hunting or felling of forest plantations.

Due to the fact that these norms specifically provide for liability for acts committed with the use of official position, the deed is qualified only under Part 3 of Article 256, or Part 2 of Article 258, or paragraph "c" of Part 2 of Article 260 of the Criminal Code of the Russian Federation without aggregate with crimes under Articles 201 or 285, 286 of the Criminal Code of the Russian Federation.

In cases where the named persons commit other environmental crimes, they should be held liable under the relevant articles of Chapter 26 of the Criminal Code of the Russian Federation, and if there are signs in their actions of abuse of official powers or the powers of a person performing managerial functions in a commercial or other organization, or exceeding official powers the deed is classified in conjunction with the crimes provided for in Articles 201 or 285, 286 of the Criminal Code of the Russian Federation.

4. Based on the provisions of part 2 of Article 24 of the Criminal Code of the Russian Federation, if the form of guilt is not specified in the disposition of Article 26 of the Criminal Code of the Russian Federation, then the corresponding environmental crime may be committed intentionally or through negligence, provided that the content of the act, the methods of its commission and other signs of the objective aspect of an environmental crime. For example, the crimes provided for in Article 246, Part 2 of Article 247, Part 1 of Article 248, Parts 1 and 2 of Article 250 of the Criminal Code of the Russian Federation can be committed both intentionally and through negligence, while the crimes provided for in Part 3 of Article 247 of the Criminal Code of the Russian Federation, Part 2 of Article 248 of the Criminal Code of the Russian Federation, Part 3 of Article 250 of the Criminal Code of the Russian Federation, are committed only through negligence.

5. Other grave consequences in relation to Article 246 of the Criminal Code of the Russian Federation should be understood, in particular, such a deterioration in the quality of the environment and its components, the elimination of which requires a long time and large financial costs (for example, mass diseases or the death of objects of the animal world, including fish and other aquatic biological resources; destruction of conditions for their habitation and reproduction (loss of feeding, spawning and wintering pits, disruption of migration routes, destruction of food resources); destruction of flora, which entailed a significant reduction in the number (biomass) of these objects; land degradation ). In this case, mass death (disease) is considered to be an excess of the average level of death (disease) of animals by three or more times.

6. Creation of a threat of causing significant harm to human health or the environment (part 1 of Article 247 of the Criminal Code of the Russian Federation) means the occurrence of such a situation that would entail harmful consequences provided for by law if they were not prevented by timely measures or other circumstances beyond the control of the will a person who has violated the rules for handling environmentally hazardous substances and waste. Such a threat presupposes the presence of a specific danger of real causing significant harm to human health or the environment.

Explain that in relation to part 1 of Article 247 of the Criminal Code of the Russian Federation, significant harm to human health is expressed in severe or moderate harm to the health of at least one person, and significant harm to the environment - in its pollution, poisoning or infection, changes in the radioactive background to values that pose a danger for human health or life, etc.

To establish in the deed a sign of a mass illness of people (part 3 of Article 247 of the Criminal Code of the Russian Federation), it is recommended to involve relevant specialists or experts, for example, representatives of federal executive bodies authorized to exercise supervision in the field of consumer protection and human well-being.

7. Pollution, clogging, depletion of surface or underground waters, sources of drinking water supply or any other change in their natural properties (Article 250 of the Criminal Code of the Russian Federation) may be the result of violation of not only the rules of water use (for example, the operation of industrial, agricultural, municipal and other facilities with faulty treatment plants). facilities and devices, shutdown of treatment facilities and devices), but also other rules in the field of environmental protection and nature management (in particular, transportation, storage, use of mineral fertilizers and preparations).

Pollution, clogging, depletion of surface or underground waters, sources of drinking water supply or any other change in their natural properties, committed on the territory of a nature reserve or a wildlife sanctuary or in an ecological disaster zone or in an ecological emergency zone, should be qualified under Part 2 of Article 250 of the Criminal Code of the Russian Federation only if when the deed caused significant harm to the animal or plant world, fish stocks, forestry or agriculture.

8. When considering criminal cases on illegal hunting (Article 258 of the Criminal Code of the Russian Federation), the courts should take into account that, in accordance with paragraph 5 of Article 1 of the Federal Law of July 24, 2009 No. 209-FZ "On hunting and on the preservation of hunting resources and separate legislative acts Of the Russian Federation ”hunting means the search, tracking, pursuit of hunting resources, their extraction, primary processing and transportation.

It is illegal to hunt in violation of the requirements of the hunting legislation, including hunting without an appropriate permit for the extraction of hunting resources, outside the designated areas, outside the hunting deadlines, etc.

9. Responsibility for illegal hunting, provided for in paragraph "a" of Part 1 of Article 258 of the Criminal Code of the Russian Federation, arises only in the presence of major damage. The damage caused by illegal hunting is large, based not only on the number and value of the killed, damaged and destroyed animals, but also taking into account other circumstances of the deed, in particular the ecological value, significance for a particular habitat, and the size of the population of these animals. The damage caused, for example, by the shooting of elk, red deer (maral, red deer), musk ox, brown and white-breasted (Himalayan) bears, is large.

The crimes provided for in clauses "b", "c" and "d" of part 1 of Article 258 of the Criminal Code of the Russian Federation are recognized as completed from the moment the actions are taken directly aimed at searching, tracking, pursuit for the purpose of extracting hunting resources, as well as their extraction , primary processing, transportation.

10. Power-driven vehicles (clause "b" of Part 1 of Article 258 of the Criminal Code of the Russian Federation) should be understood as cars, motorcycles, motonarts, snowmobiles, boats, motor boats and other vehicles driven by an engine. Aircraft may include airplanes, helicopters and any other aircraft in accordance with Part 1 of Article 32 of the Air Code of the Russian Federation.

A person can be found guilty of illegal hunting committed with the use of a power-driven vehicle or aircraft only if they were used to search for animals, track them down or pursue them for the purpose of prey, or they were used directly in the process of their prey (for example, shooting birds and animals were produced from the vehicle during its movement), as well as the transportation of illegally acquired animals.

The use of these means for the delivery of people or hunting tools to the place of its conduct is not hunting with the use of a power-driven vehicle or aircraft. These actions, if there are grounds for that, can be qualified as complicity in illegal hunting in the form of complicity.

11. The methods of mass destruction of birds and animals (clause "b" of Part 1 of Article 258 of the Criminal Code of the Russian Federation) are understood as actions associated with the use of such illegal tools or methods of extraction, which have entailed or could have led to mass death of animals (for example, burning vegetation in habitats animals).

When resolving the question of whether a crime was committed by the method of mass destruction of birds and animals, the courts should take into account not only the prohibited type of weapon or method of extraction, but also establish whether their use may entail the indicated consequences. In necessary cases, it is advisable to involve appropriate specialists or experts in the study of the properties of such tools or the methods of extraction used.

12. When an illegal hunt is committed by a group of persons by prior agreement (part 2 of Article 258 of the Criminal Code of the Russian Federation), the perpetrators of the crime are persons who searched, tracked, pursued and extracted hunting resources, carried out their primary processing and (or) transportation.

Persons who did not directly participate in illegal hunting, but contributed to the commission of this crime with advice, instructions, provision of hunting tools, vehicles, as well as purchasing, storing or selling products of illegal hunting according to a promise made in advance, are prosecuted as accomplices with reference to part 5 of article 33 of the Criminal Code of the Russian Federation, provided that they were reliably aware of the illegality of hunting.

13. The actions of persons who have committed illegal seizure of captive animals or their killing for mercenary purposes are subject to qualification as theft or destruction of someone else's property.

14. The distinction between illegal hunting (article 258 of the Criminal Code of the Russian Federation) and violations of hunting rules (part 1 of article 8.37 of the Code of Administrative Offenses of the Russian Federation) is carried out on such grounds as causing major damage, the use of a power-driven vehicle or aircraft, explosives, gases or other methods of mass destruction birds and animals, committing an act against birds and animals, hunting for which is completely prohibited, or in a specially protected natural area, in an ecological disaster zone or in an ecological emergency zone.

To draw the attention of the courts to the fact that the objective side of the composition of the administrative offense provided for in Part 1 of Article 8.37 of the Administrative Code of the Russian Federation is a violation of hunting rules, that is, the requirements for hunting and preserving hunting resources throughout the territory of the Russian Federation, in particular the presence of individuals in hunting grounds with hunting implements and (or) hunting products, hunting dogs, hunting birds without a permit. Such actions are subject to qualification under Part 1 of Article 8.37 of the Code of Administrative Offenses of the Russian Federation if they do not contain signs of a crime under Article 258 of the Criminal Code of the Russian Federation.

It should be borne in mind that hunting rules were approved by order of the Ministry of Natural Resources and Ecology of the Russian Federation dated November 16, 2010 No. 512 "On the approval of hunting rules", as well as by the resolution of the Council of Ministers of the RSFSR dated October 10, 1960 No. 1548 "On approval of the regulation on hunting and hunting in the RSFSR "and by the order of the Main Directorate of hunting economy and reserves under the Council of Ministers of the RSFSR No. 1 dated January 4, 1988" On the approval of model hunting rules "(applied in the part in which they do not contradict the Federal Law "On hunting and on the preservation of hunting resources and on amendments to certain legislative acts of the Russian Federation").

In addition, in accordance with part 5 of Article 23 of the Federal Law "On hunting and on the preservation of hunting resources and on amendments to certain legislative acts of the Russian Federation" on the basis of hunting rules by the highest official of the constituent entity of the Russian Federation (the head of the supreme executive body of state power of the constituent entity of the Russian Federation) the types of permitted hunting and the parameters of hunting in the corresponding hunting grounds are determined.

15. The subject of crimes provided for in Articles 260 and 261 of the Criminal Code of the Russian Federation are forest plantations, that is, trees, shrubs and vines growing in forests, as well as trees, shrubs and vines growing outside forests (for example, plantations in parks, alleys, separately trees planted within the city, plantings in the right-of-way of railways and highways or canals). At the same time, it does not matter whether forest plantations are planted or trees, shrubs, vines not classified as forest plantations are artificially planted or they have grown without purposeful human efforts.

They do not belong to the subject of these crimes, in particular, trees, shrubs and vines growing on agricultural land (with the exception of forest plantations intended to ensure the protection of land from the effects of negative (harmful) natural, anthropogenic and man-made phenomena), on household land plots, on land plots provided for individual housing, garage construction, personal subsidiary and suburban farming, gardening, animal husbandry and truck farming, in tree nurseries, nurseries of fruit, berry, ornamental and other crops, as well as windfall, windbreak, dead trees, if otherwise not provided for by special regulatory legal acts. Felling of these plantings, as well as their destruction or damage, if any provided by law grounds can be qualified as theft or destruction or damage to property.

16. Under the felling of forest plantations or trees, shrubs and lianas not classified as forest plantations, in relation to Article 260 of the Criminal Code of the Russian Federation, they should be understood as their cutting, cutting or cutting, that is, the separation of a tree trunk, bush stem and liana from the root in various ways.

It is illegal to cut these plantations in violation of the requirements of the law, for example, cutting forest plantations without registration required documents in volume exceeding the permitted one, either in violation of the species or age composition, or outside the cutting area.

To draw the attention of the courts to the fact that a lease agreement for a forest plot or a decision to grant a forest plot on other rights for timber harvesting or other types of forest use is not a sufficient legal basis for cutting forest stands. In particular, the felling of forest plantations by the lessee of a forest plot is considered illegal in cases where such a person does not have documents for felling forest plantations on the leased plot (for example, a forest development project that has received a positive conclusion of the state or municipal expertise) or trees have been cut down, the felling of which was not envisaged by the forest development project or was carried out in violation of the terms.

17. Damage to the point of stopping the growth of forest plantations or trees, shrubs and vines not related to forest plantations (Article 260 of the Criminal Code of the Russian Federation) includes such damage that irreversibly disrupts the plant's ability to continue to grow (for example, breaking a tree trunk, crumbling a crown, peeling bark).

18. Criminal liability under paragraphs "a" and "c" of part 2 of Article 260 of the Criminal Code of the Russian Federation occurs regardless of whether illegal felling of forest plantations or trees, shrubs and vines not related to forest plantations has been committed in a significant amount.

19. When qualifying illegal logging by an organized group (part 3 of Article 260 of the Criminal Code of the Russian Federation), it should be borne in mind that an organized group is understood as a stable group of two or more persons who have united in advance to commit one or more crimes. The stability of an organized group can be evidenced by the presence of an organizer (leader), a long time interval of its existence, the repeated commission of crimes by members of the group, their technical equipment, the distribution of roles between them, the duration of the preparation of even one crime, as well as other circumstances (for example, special training of participants in an organized groups).

The actions of all members of an organized group who took part in the preparation or commission of illegal logging, regardless of their actual role, should be qualified in accordance with part 3 of Article 260 of the Criminal Code of the Russian Federation without reference to Article 33 of the Criminal Code of the Russian Federation.

20. If a person has committed illegal felling of forest plantations, through the use of another person who is not subject to criminal liability due to age, insanity or other circumstances (including in connection with the termination of a criminal case against this person for lack of corpus delicti), his should be prosecuted as the perpetrator of the crime under Article 260 of the Criminal Code of the Russian Federation.

21. The actions of a person who has committed illegal felling of plantations, and then disposed of timber at his own discretion, do not require additional qualifications under articles of the Special Part of the Criminal Code of the Russian Federation on liability for theft of other people's property.

Illegal seizure of timber harvested by other persons is classified as theft of someone else's property.

22. The main criterion for distinguishing between criminal illegal logging of forest plantations (part 1 of Article 260 of the Criminal Code of the Russian Federation) and illegal logging of forest plantations, for which liability is provided for by Article 8.28 of the Administrative Code of the Russian Federation, is a significant amount of damage caused by an encroachment, which must exceed five thousand rubles (note to article 260 of the Criminal Code of the Russian Federation).

The felling of forest plantations by tenants of forest plots who have a forest development project that has received a positive conclusion of the state or municipal expertise, in violation of the technology of timber harvesting, including felling, without submitting a report on the use of forests, is subject to qualification under Article 8.25 of the Code of Administrative Offenses of the Russian Federation.

Explain that the criterion for delimiting a crime under Article 260 of the Criminal Code of the Russian Federation from an administrative offense (Article 8.28 of the Code of Administrative Offenses of the Russian Federation) is the degree of damage to forest plantations. If the damage to these plantations did not lead to the termination of their growth, the deed entails administrative liability under Article 8.28 of the Administrative Code of the Russian Federation.

23. Reckless handling of fire or other sources of increased danger in relation to Part 1 of Article 261 of the Criminal Code of the Russian Federation means non-compliance with the requirements of fire safety rules in forests, which led to the outbreak of a fire (making and leaving fires without extinguishing, burning out brushwood, forest litter, dry grass, leaving combustible - lubricants, throwing burning matches, cigarette butts, etc.).

Setting fire to forest and other plantations (part 3 of Article 261 of the Criminal Code of the Russian Federation) consists in deliberate actions aimed at destroying or damaging plantings using open fire (lighting grass, making fires, throwing torches, using flammable materials, etc.).

Other generally dangerous methods include any other methods (except for arson) that can lead to the destruction or damage of forest and other plantations (for example, the use of explosives, poisons, bacteriological and other biological agents, the massive spread of diseases and plant pests, emissions, discharges of harmful substances).

24. The destruction of forest and other plantations in relation to Article 261 of the Criminal Code of the Russian Federation is expressed in the complete combustion of plantations or their drying out as a result of the impact of a fire or its dangerous factors, pollutants and toxic substances, production and consumption waste, waste and emissions.

Damage should include cases of partial combustion of plantations, their degradation in certain areas of the forest to the point of cessation of growth, infection with diseases or harmful organisms etc.

25. In cases of violation of the requirements of fire safety rules in forests, it is necessary to distinguish between crimes provided for by Article 261 of the Criminal Code of the Russian Federation, and administrative offenses, the responsibility for the commission of which is established by Article 8.32 of the Administrative Code of the Russian Federation.

If careless handling of fire or other source of increased danger in the forests did not lead to the occurrence of forest fire, destruction or damage to plantings, such actions constitute an administrative offense provided for in Part 1 of Article 8.32 of the Administrative Code of the Russian Federation.

Burning out brushwood, forest litter, dry grass and other forest combustible materials in violation of the requirements of fire safety rules on land plots directly adjacent to forests, protective and forest plantations and not separated by a fire-fighting mineralized strip at least 0.5 meters wide, which did not entail destruction or damage to forest stands, is subject to qualification under Part 2 of Article 8.32 of the Administrative Code of the Russian Federation.

In the event that careless handling of fire or other sources of increased danger led to the outbreak of a forest fire, but the consequences in the form of destruction or damage to forest plantations did not occur, the deed does not constitute a crime under Article 261 of the Criminal Code of the Russian Federation, and if there are appropriate signs, it may be qualified as an administrative offense (for example, under Part 4 of Article 8.32 of the Code of Administrative Offenses of the Russian Federation).

26. Other natural areas specially protected by the state in relation to Article 262 of the Criminal Code of the Russian Federation, based on the provisions of Article 2 of the Federal Law of March 14, 1995 No. 33-FZ "On Specially Protected Natural Areas", include natural parks, dendrological parks and botanical gardens , medical and recreational areas and resorts, formed in accordance with the established procedure.

The list of categories of specially protected areas is open. The Government of the Russian Federation, the relevant executive authorities of the constituent entities of the Russian Federation, local self-government bodies have the right to establish other categories of specially protected natural areas (for example, territories on which there are monuments of landscape gardening, protected coastlines, protected river systems, protected natural landscapes, biological stations, micro-reserves).

When considering criminal cases on crimes provided for in Article 262 of the Criminal Code of the Russian Federation, the courts must check which requirements of the regime established for each category of specially protected natural areas have been violated, and indicate this in the verdict or other court decision.

27. When deciding whether significant damage has been caused as a result of violation of the regime of a specially protected natural area, the courts should proceed from the specific circumstances of the case, in particular the category of specially protected natural areas, their economic, social, historical, cultural, scientific significance, ability natural resource to self-healing, the quantity and value of the destroyed, damaged components of the natural environment. If necessary, the court engages relevant specialists or experts.

28. To draw the attention of the courts to the need to comply with the principle. individualization when imposing punishment on persons guilty of committing environmental crimes. It is recommended to carefully find out and take into account the totality of the circumstances of the case, and above all, the nature of the violations committed, data on the personality of the defendants, the severity of the consequences, the amount of harm caused, etc.

If there are grounds, the courts should discuss the need to impose additional punishments on a person, taking into account the provisions of Articles 47 and 48 of the Criminal Code of the Russian Federation.

In accordance with part 3 of article 47 of the Criminal Code of the Russian Federation, punishment in the form of deprivation of the right to hold certain positions or engage in certain activities can be applied regardless of whether it is provided for by the sanction of a specific norm of Chapter 26 of the Criminal Code of the Russian Federation. In this case, the nature of the committed environmental crime should be predetermined by the position held or the activities carried out.

29. Instruments, equipment or other means of committing a crime, including vehicles, with the help of which illegal hunting or illegal felling of forest stands, included in the case as material evidence, may be confiscated on the basis of paragraph "d" of Part 1 of Article 104.1 Of the Criminal Code of the Russian Federation.

Proceeding from the fact that only tools, equipment or other means of committing a crime belonging to the defendant are subject to confiscation, when deciding on this issue, it is imperative to establish their owner.

Tools, equipment or other means of committing a crime shall not be subject to confiscation if they are the main legitimate source of livelihood for the culprit (for example, tools for the extraction of hunting resources to ensure the livelihoods of the indigenous peoples of the Russian Federation).

The execution of a court decision on confiscation of firearms is assigned to the relevant internal affairs bodies authorized to monitor the circulation of civilian and service weapons.

30. Draw the attention of the courts to the fact that lawsuits involving citizens, organizations, public authorities and local self-government bodies for the protection of violated or disputed rights, freedoms and legitimate interests on disputes arising from environmental legal relations, are aimed at protecting the rights of citizens to a favorable environment, reliable information about its condition and compensation for damage caused to their health or property by an environmental offense, guaranteed by Article 42 of the Constitution of the Russian Federation, which determines the jurisdiction of these cases to courts of general jurisdiction (Article 126 of the Constitution of the Russian Federation, paragraph 1 of part 1 of article 22 of the Code of Civil Procedure of the Russian Federation).

Insofar as property relations participants in civil (economic) turnover arising in the course of the implementation of entrepreneurial and other economic activities by these persons are not the subject of the stated claims in cases of this category, these cases are considered in courts of general jurisdiction, regardless of the subject composition of the persons involved in the case.

Such cases include cases on claims for compensation for damage to the environment, cases on claims for limitation, suspension or termination of activities carried out in violation of the requirements in the field of environmental protection and nature management, in particular cases on claims for suspension of placement, design, construction, reconstruction , commissioning, operation, conservation and liquidation of buildings, structures, structures and other facilities, cases on applications of prosecutors in defense of the rights and legitimate interests of an indefinite number of persons and other civil cases (article 45 of the Code of Civil Procedure of the Russian Federation, paragraph 2 of article 34 of the Federal Law "On environmental protection ").

31. The subjects of applying to the court in cases of violations of legislation in the field of environmental protection and natural resource use are: individuals and legal entities, the prosecutor, federal executive bodies authorized to carry out state environmental supervision, and their territorial bodies, executive authorities of the constituent entities of the Russian Federation authorized to carry out regional state environmental supervision, local self-government bodies, as well as other bodies in cases provided for by law, public and other non-profit associations (their associations, unions) that have the status of a legal entity and carry out activities in the region environmental protection (Articles 45 and 46 of the Code of Civil Procedure of the Russian Federation, Articles 11, 12, 66 of the Federal Law "On Environmental Protection").

When filing applications in cases related to violations of legislation in the field of environmental protection and natural resource use, it is subject to payment government duty in accordance with Articles 333.19, 333.35, 333.36 Tax Code Russian Federation.

32. Federal executive bodies authorized to exercise state environmental supervision, and their territorial bodies, executive bodies of the constituent entities of the Russian Federation authorized to exercise regional state environmental supervision, local self-government bodies, as well as other bodies in cases provided for by law, prior to a court decision in the case, they can enter into the case on their own initiative or on the initiative of the persons participating in the case, and are also involved in the case by the court as authorized bodies entering into the process in order to give an opinion on the case (Articles 34, 47 of the Code of Civil Procedure of the Russian Federation, Article 66 Federal Law "On Environmental Protection").

In accordance with article 45 of the Code of Civil Procedure of the Russian Federation, the prosecutor has the right to enter into the process to give an opinion in order to exercise the powers assigned to him in cases of compensation for harm caused to the health of citizens as a result of violation of legislation in the field of environmental protection and natural resource use. At the same time, the courts must take the necessary measures to timely notify prosecutors about the consideration of civil cases of this category.

33. To draw the attention of the courts to the fact that civil (property) liability for harm caused to the environment may arise as a result of violation of an agreement in the field of environmental management (for example, a lease agreement for a forest plot), as well as as a result of non-contractual (tort) infliction harm.

It should be borne in mind that the Federal Law "On Environmental Protection" does not imply a limitation of the amount of liability for obligations arising from contracts in the field of environmental management.

In addition, in accordance with the provision of paragraph 2 of Article 11 of the Federal Law "On Environmental Protection", citizens have the right to bring claims for compensation for harm caused to the environment and its components, regardless of harm to their health and property, according to the general rules of jurisdiction.

Refusal to initiate a criminal case, termination of the initiated criminal case, and the imposition of a sentence do not exclude the possibility of filing a claim for compensation for harm caused to the environment, if there are grounds for doing so provided by law.

34. Harm caused to the environment, as well as health and property of citizens negative impact the environment as a result of economic and other activities of legal entities and individuals is subject to compensation in full (paragraph 1 of Article 77, paragraph 1 of Article 79 of the Federal Law "On Environmental Protection").

Compensation for harm caused to the life and health of a citizen, including hiding information or providing untimely and inaccurate information about the state of the environment, as well as refusal to provide such information, which led to the onset of the disease, is carried out taking into account the earnings (income) lost by the victim. or could definitely have, as well as additionally incurred costs caused by damage to health, including costs of treatment, additional food, purchase of medicines and other costs (Articles 1069, 1085 of the Civil Code of the Russian Federation, paragraph 2 of Article 11, paragraph 2 of Article 79 of the Federal Law " On environmental protection ").

The court has the right to reduce the amount of compensation for harm caused by a citizen to the environment, taking into account his property status, except for cases when it was caused by actions committed intentionally (paragraph 3 of Article 1083 of the Civil Code of the Russian Federation).

35. In accordance with Article 1064 of the Civil Code of the Russian Federation and Article 77 of the Federal Law "On Environmental Protection", harm caused to the environment is subject to compensation by the guilty person, regardless of whether it was caused as a result of deliberate actions (inaction) or negligence.

The exceptions are cases when harm was caused by legal entities and citizens whose activities are related to increased danger for the environment (article 1079 of the Civil Code of the Russian Federation). In these cases, liability arises regardless of the presence of guilt, if the harm-doer does not prove that the harm arose as a result of force majeure or the intent of the victim.

Lists of hazardous and especially hazardous industries are established by the Urban Planning Code of the Russian Federation (part 1 of Article 48.1), the Merchant Shipping Code of the Russian Federation (subparagraph 3 of paragraph 2 of Article 327), the Code of Inland Water Transport of the Russian Federation (paragraph 1 of Article 86), the Federal Law of April 3 1996 No. 29-FZ "On the financing of highly radiation hazardous and nuclear hazardous industries and facilities" (Article 1), Federal Law of July 21, 1997 No. 116-FZ "On industrial safety dangerous production facilities"(Appendices 1 and 2 to the Law), Federal Law of July 27, 2010 No. 225-FZ" On compulsory insurance of civil liability of the owner of a hazardous facility for causing harm as a result of an accident on dangerous facility"(Article 5).

36. Taking into account the provisions of paragraph 3 of Article 1064 of the Civil Code of the Russian Federation, the Federal Law "On Environmental Protection" allows liability for harm caused by lawful actions (paragraph 3 of Article 1064 of the Civil Code of the Russian Federation). So, for example, paying for negative impact on the environment does not exempt business and other entities from taking measures to protect the environment and compensate for environmental damage (Article 16 of the Federal Law "On Environmental Protection"); the implementation by the customer and (or) the subject of economic and other activities, including activities for the removal of components of the natural environment, implies the obligation of these persons to compensate for the damage to the environment, including when the project of such activities has a positive conclusion of the state ecological expertise (Article 77 of the Federal Law "On environmental protection ").

37. Compensation for harm to the environment caused by violation of legislation in the field of environmental protection and nature management is carried out voluntarily or by a court decision.

In the presence of rates and methods for calculating the amount of harm (damage) caused to the environment, to individual components of the natural environment (land, water bodies, forests, wildlife, etc.), approved federal authorities executive authorities implementing public administration in the field of environmental protection, the specified rates and methods are subject to mandatory application by the courts to determine the amount of compensation for harm in monetary terms.

The absence of rates and methods for calculating the amount of harm to the environment is not a reason for refusing to satisfy claims for compensation for harm caused to the environment. In this case, the determination of the amount of damage to the environment caused by violation of legislation in the field of environmental protection and natural resource use is carried out based on the actual costs of restoring the disturbed state of the environment, taking into account the losses incurred, including lost profits, as well as in accordance with the projects of reclamation and other restoration work.

Within the meaning of paragraph 2 of Article 78 of the Federal Law "On Environmental Protection", the harm caused to the environment, on the basis of a court decision, can be compensated by imposing on the guilty person the obligation to restore the disturbed state of the environment at his expense in accordance with the project of restoration work in the event that restoration of the environment is objectively possible and the offender is able to reasonable time carry out the necessary work to restore the disturbed state of the environment.

38. If the harm caused is a consequence of the operation of an enterprise, structure or other production activity causing harm or threatening new harm, the court has the right to oblige the defendant, in addition to compensation for harm, to suspend or terminate the relevant activity (paragraph 2 of Article 1065 of the Civil Code of the Russian Federation).

The basis for limiting, suspending or terminating the activities of the operating organization may be the operation of the facility without permits and licenses or in violation of the terms of the permits and licenses issued by the operating organization, including exceeding the limits for emissions and discharges of pollutants into the environment, limits for the disposal of waste classified to I-IV hazard class, non-compliance with industrial safety requirements and other violations.

39. The courts should bear in mind that the danger of causing harm to the environment in the future may be the basis for the prohibition of activities that create such a danger (paragraph 1 of Article 1065 of the Civil Code of the Russian Federation).

The court has the right to refuse a claim for the suspension or termination of the relevant activity (for example, the activity of sewage treatment plants, etc.), provided that its suspension or termination is contrary to public interests. Refusal to satisfy such claims does not deprive the victims of the right to compensation for harm caused by this activity.

40. When resolving claims for compensation for harm caused to the environment, the courts must establish not only the fact of harm, but also its consequences, expressed in the form of degradation of natural ecological systems, depletion of natural resources and other consequences. In this regard, and in order to correctly resolve issues requiring special knowledge in the field of ecology, including when determining the amount of harm caused by an environmental offense, appropriate examinations should be carried out in the case with the involvement of specialists: ecologists, sanitary doctors, zoologists, ichthyologists, hunting experts, soil scientists, foresters and others.

41. In cases involving damage to the environment, as well as to the health and property of citizens, the courts must establish a causal link between the acts committed and the resulting consequences or the emergence of a threat of causing significant harm to the environment and human health. To do this, the courts should find out whether such consequences were caused by other factors, including natural ones, and whether they occurred regardless of the established violation, as well as whether unlawful acts were committed in a state of extreme necessity (for example, in order to ensure the functioning and safety of life support facilities).

42. Claims for compensation for environmental damage may be brought within twenty years (paragraph 3 of Article 78 of the Federal Law "On Environmental Protection"). In this case, the limitation period for claims for compensation for losses and harm caused by radiation exposure to the environment is three years from the day when the person learned or should have learned about the violation of his right (Article 58 of the Federal Law of November 1, 1995 No. 170 -FZ "On the Use of Atomic Energy"). Based on the provisions of paragraph 4 of Article 208 of the Civil Code of the Russian Federation for claims for compensation for harm caused to the life or health of a citizen as a result of a negative impact on the environment, the statute of limitations does not apply, however, claims submitted after three years from the moment the right to compensation for such harm arose, satisfied for the past time not more than three years preceding the presentation of the claim.

43. Persons who have jointly caused harm to the environment are jointly and severally liable (paragraph 1 of Article 1080 of the Civil Code of the Russian Federation). The court has the right to impose shared liability on these persons, based on the degree of guilt of each of them, and if it is impossible to determine the degree of guilt, based on the equality of shares (Article 1080 of the Civil Code of the Russian Federation, paragraph 2 of Article 1081 of the Civil Code of the Russian Federation).

It should be borne in mind that in the event of damage to the environment by several persons, they are jointly and severally liable for the damage caused only in cases where their joint participation has been established. The joint nature of such actions can be evidenced by their consistency, coordination and focus on the implementation of a common intention for all actors.

In the event that harm to the environment is caused by joint actions of several persons, the court, by virtue of Article 40 of the Code of Civil Procedure of the Russian Federation, is obliged to involve in the case all persons whose joint actions have caused harm to the environment.

44. The harm caused to the health of citizens by the negative impact of the environment is the basis for compensation for moral harm.

When resolving the issue of compensation for moral damage, the court should establish how the fact of causing harm to the victim is confirmed, by what actions (inaction) it was inflicted, the degree of guilt of the causer of harm, as well as what mental or physical suffering suffered by the victim, in what amount the victim estimates their compensation , and other circumstances relevant to the consideration of the stated requirements.

The degree of moral or physical suffering is assessed by the court taking into account the factual circumstances of the infliction of moral harm, the individual characteristics of the victim and other specific circumstances indicating the severity of the suffering he suffered.

Compensation for moral harm caused to the health of citizens by the negative impact of the environment is carried out regardless of fault, if such harm is caused by legal entities and citizens whose activities are associated with increased danger to the environment (Article 1100 of the Civil Code of the Russian Federation).

45. The courts should bear in mind that illegally obtained objects of the animal world, their parts and products made from them constitute an unjustified enrichment of the person who took them (Article 1102 of the Civil Code of the Russian Federation).

Gratuitous withdrawal or confiscation of objects of the animal world does not exempt citizens, legal entities who illegally procured objects of the animal world, from the obligation to compensate for damage caused to objects of the animal world and their habitat.

When resolving the issue of the fate of illegally obtained objects of the animal world, whose physical condition does not allow them to be returned to the habitat, as well as the products obtained from them, the courts are obliged to proceed from the fact that such objects are subject to sale or destruction in the manner established by the Government of the Russian Federation ( Article 59 of the Federal Law "On the Wildlife", Part 2 of Article 59 of the Federal Law "On Hunting and on the Preservation of Hunting Resources and on Amendments to Certain Legislative Acts of the Russian Federation").

If it is impossible to return in nature illegally obtained objects of the animal world, their parts and products made from them, the court, on the basis of Article 1105 of the Civil Code of the Russian Federation and Article 56 of the Federal Law "On Animal World", must decide the issue of recovering the value of these objects. When citizens, legal entities sell illegally obtained objects of the animal world, their parts and products made from them, the recovered value of these objects must include, among other things, the amount received from the sale of these objects.

46. When resolving the question of which budget the amounts are to be credited monetary penalties(fines), confiscations and compensations for violations of legislation in the field of environmental protection and natural resource use, the courts should be guided by the provisions of paragraphs 1, 4 and 5 of part 1 and part 6 of Article 46 The Budget Code Russian Federation.

47. When considering criminal cases on crimes provided for in Chapter 26 of the Criminal Code of the Russian Federation, and civil cases in the field of environmental protection and natural resource use, courts should respond to violations of the rights and freedoms of citizens, as well as other violations of the law by issuing private rulings (decisions) to the relevant organizations and officials to take the necessary measures (part 4 of article 29 of the Code of Criminal Procedure of the Russian Federation, part 1 of article 226 of the Code of Civil Procedure of the Russian Federation).

If, when considering civil cases in the field of environmental protection and natural resource use, in the order action proceedings or proceedings on cases arising from public legal relations, the court discovers signs of a crime in the actions of a party, other participants in the process, an official or another person, it is necessary to report this to the bodies of inquiry or preliminary investigation (part 3 of article 226 of the Code of Civil Procedure of the Russian Federation).

48. In connection with the adoption of this resolution, to declare invalid: Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 14 "On the practice of the courts' application of legislation on liability for environmental offenses" (as amended by the Resolution of the Plenum of February 6, 2007 . No. 7);

clauses 12, 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 5, 2002 No. 14 "On judicial practice in cases of violation of fire safety rules, destruction or damage to property by arson or as a result of careless handling of fire" (as amended by the resolution Plenum of February 6, 2007 No. 7);

clause 12 and paragraph ten of clause 17 of the resolution of the Plenum of the Supreme Court of the Russian Federation of February 6, 2007 No. 7 "On amendments and additions to certain resolutions of the Plenum of the Supreme Court of the Russian Federation on criminal cases."

Document overview

The issues of application by courts of legislation on liability for violations in the field of environmental protection and nature management are considered.

In particular, the specifics of bringing to responsibility for environmental crimes committed with the use of official position have been clarified.

The concept of other grave consequences has been clarified in relation to violation of the rules of environmental protection in the course of work.

It is noted that pollution, clogging, depletion of surface or underground waters, sources of drinking water supply, or other changes in their natural properties may be the result of violation of not only the rules of water use, but also other rules in the field of environmental protection and nature management (for example, transportation, storage and use mineral fertilizers and preparations).

Attention is drawn to the features that must be taken into account by the courts when considering criminal cases on illegal hunting. Thus, large-scale damage caused by illegal hunting is determined not only from the number and value of the killed, damaged and destroyed animals, but also taking into account other circumstances, in particular the ecological value, significance for a particular habitat, and the size of the animal population.

Attention is drawn to the fact that civil (property) liability for harm caused to the environment may arise as a result of violation of an agreement in the field of environmental management, as well as as a result of non-contractual (tort) infliction of harm.

When resolving claims for compensation for harm caused to the environment, the courts need to establish not only the fact of harm, but also its consequences, expressed in the form of degradation of natural ecological systems, depletion of natural resources, etc.

The courts should also bear in mind that illegally obtained objects of the animal world, their parts and products made from them constitute an unjustified enrichment of the person who took them.

For 2016-2018, the court considered cases of environmental crimes:
2016 - 3 cases, 2017 - 5 cases; 2018 - 1 case.
Of the 9 considered in 2016-2018. cases on crimes provided for by Chapter 26 of the Criminal Code of the Russian Federation, all cases were considered under Part 1 of Article 256 of the Criminal Code of the Russian Federation.
In all the cases considered, convictions were passed, and in one case a penalty was imposed in the form of a fine, in two cases a punishment in the form of compulsory labor, five punishments in the form of correctional labor, and in one case a sentence of imprisonment was imposed.
Of them:
- in 2016, out of 3 sentences, a punishment in the form of compulsory labor was imposed in two cases, and in one case, a punishment in the form of corrective labor was imposed:
By the verdict of the magistrate of the court site No. 3 in the city of Guy Orenburg region dated July 6, 2016, Ya. was found guilty of committing a crime under clause "b", part 1 of article 256 of the Criminal Code of the Russian Federation, in that he was on a section of the Ural River, which is a wintering place for native fish species, acting intentionally , for the purpose of illegal fishing, by the method of mass extermination of fish in the form of two fishing gear, which are prohibited for use by fishing gear, an instrument of mass destruction of aquatic biological resources, made illegal fishing, thereby causing property damage to the state aquatic biological resources in the total amount of 4,135 rubles ... Ya was sentenced to 300 hours of compulsory labor. When choosing the type and amount of punishment, the magistrate took into account the nature and degree of public danger the crime committed, the identity of the perpetrator, the presence of mitigating circumstances, the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family, including that the convicted person was mediocre, has a mental illness, or committed a minor crime for the first time;

By the verdict of the magistrate of the judicial district within the administrative-territorial boundaries of the entire Gaysky district of September 22, 2016, Ya. Was found guilty of committing a crime under paragraph "b, c" of Part 1 of Art. 256 of the Criminal Code of the Russian Federation, in that he, being on the shore of the Iriklinskoye reservoir, which, as a matter of state, is a spawning place and a migration route to it, acting deliberately, with the aim of illegal fishing, knowing that he is acting illegally, by means of mass extermination of fish in the form of three fishing nets, which are prohibited to use fishing gear, instruments of mass extermination of aquatic biological resources, made illegal fishing, which caused property damage to the state aquatic biological resources in the total amount of 4,447 rubles.
When imposing a sentence, the court took into account the presence of circumstances mitigating the punishment, including: compensation for property damage caused by the crime, admission of guilt, remorse for the deed.
The recidivism of crimes in accordance with paragraph "a" of Part 1 of Article 63 of the Criminal Code of the Russian Federation is recognized as an aggravating circumstance.
The defendant committed a crime of small severity, is characterized by mediocre character, no complaints about his behavior in everyday life have been received, he has not been brought to administrative responsibility, has an outstanding conviction.
Taking into account the nature and degree of social danger of the crime committed, the identity of the perpetrator, his state of health, the impact of the imposed punishment on the correction of the convict and on the living conditions of his family, the presence of mitigating and aggravating circumstances, as well as the provisions of Part 2 of Article 68 of the Criminal Code of the Russian Federation in order to restore social justice, the court appointed Ya. a punishment in the form of 1 year of correctional labor with a deduction of 10% of the convict's earnings in state revenue without applying the provisions of Article 73 of the Criminal Code of the Russian Federation.

In 2017, out of 5 sentences, in one case, a penalty was imposed in the form of a fine, in three cases, punishment in the form of correctional labor, and in one case - in the form of imprisonment:
By the verdict of the magistrate of the judicial district within the administrative-territorial boundaries of the entire Gaysky district of February 13, 2017, B. was found guilty of committing a crime under paragraph "b" of part 1 of Art. 256 of the Criminal Code of the Russian Federation, in illegal fishing, by the method of mass extermination of fish in the form of a fishing net, which is prohibited for use as a fishing gear, causing property damage to the state aquatic biological resources for a total amount of 2930 rubles.
When imposing punishment by the court, the following factors were taken into account as circumstances mitigating the punishment of the defendant: compensation for property damage caused as a result of the crime, admission of guilt, repentance for what he had done, as well as active assistance in the disclosure and investigation of the crime, expressed in the message when giving explanations and interrogation as suspect information , which is important for the production of inquiry, namely: about the time, place, motive and method of committing a crime.
B. was the first to commit a crime of a small severity, was characterized positively, there were no complaints about his behavior in everyday life, he is married, is a pensioner, and was not brought to administrative responsibility.
Given the presence of a set mitigating circumstances the defendant, old age, the factual circumstances of the case, the fact of compensation for the damage caused, the property status of B. receiving a pension, as well as his state of health and the requirements of Art. 6 of the Criminal Code of the Russian Federation, art. 7 of the Criminal Code of the Russian Federation, the court concluded that there were exceptional circumstances that significantly reduce the degree of social danger of the crime and with the application of Art. 64 of the Criminal Code of the Russian Federation appointed the defendant the amount of the fine below the lower limit provided for in Part 1 of Art. 256 of the Criminal Code of the Russian Federation in the amount of 10,000 (ten thousand) rubles.

By the verdict of the magistrate of the judicial district within the administrative-territorial boundaries of the entire Gaysky district of August 31, 2017, R. was found guilty of committing a crime under paragraph "b" of Part 1 of Art. 256 of the Criminal Code of the Russian Federation, in illegal fishing by the method of mass extermination of fish in the form of a fishing net, which is a prohibited fishing gear, an instrument of mass extermination of aquatic biological resources, causing property damage to the state aquatic biological resources in the total amount of 5,300 rubles.
By studying the data on the personality of the defendant, it was established that R. had committed a crime of a small degree of gravity, was brought to administrative responsibility for violations in the area road traffic, at the place of residence it is characterized positively, there have been no complaints about his behavior in everyday life, has a permanent place of work, where it is also characterized positively, has two young children.
Taking into account the nature and degree of public danger of the committed environmental crime, the factual circumstances of the case, the identity of the perpetrator, the impact of the imposed punishment on the correction of the convict and on the living conditions of his family, the presence of mitigating circumstances in order to restore social justice, the court sentenced R. to one year of correctional works with a deduction of 10% of the convict's earnings as income to the state.

By the verdict of the magistrate of the judicial district within the administrative-territorial boundaries of the entire Gaysky district of August 10, 2017, M. was found guilty of committing a crime under clause "b, c" part 1 of Art. 256 of the Criminal Code of the Russian Federation for illegal fishing by the method of mass extermination of fish in the form of seven fishing nets, which are prohibited for use as fishing gear, instruments for the mass extermination of aquatic biological resources, causing property damage to the state aquatic biological resources in the total amount of 5,007 rubles.
When sentencing, the court took into account the following as circumstances mitigating the punishment of the defendant by the court: compensation for property damage caused by the crime, admission of guilt, remorse for the deed, the presence of a minor child.
By studying the data on the personality of the defendant, it was established that M., previously convicted for committing a crime of average gravity, conviction forms a recurrence of crimes, was brought to administrative responsibility under Part 1 of Article 12.26 of the Code of Administrative Offenses of the Russian Federation. At the same time, the defendant at the place of residence is characterized positively, there have been no complaints about his behavior in everyday life, he is married, has a young child.
Taking into account the nature and degree of social danger of the committed environmental crime, the factual circumstances of the case, the identity of the perpetrator, the impact of the imposed punishment on the correction of the convict and on the living conditions of his family, the presence of mitigating and aggravating circumstances in order to restore social justice, as well as taking into account Part 2 of Art. .68 of the Criminal Code of the Russian Federation, the court sentenced M. to a sentence of 4 months in prison with serving the sentence in a correctional colony general regime.

In 2018, a punishment in the form of correctional labor was imposed on 1 considered case.
By the verdict of the magistrate of the judicial district within the administrative-territorial boundaries of the entire Gaysky district of March 29, 2018, R. was found guilty of committing a crime under paragraph "b" of Part 1 of Art. 256 of the Criminal Code of the Russian Federation, in illegal fishing by the method of mass extermination of fish in the form of a fishing net, which is a prohibited fishing gear, an instrument of mass extermination of aquatic biological resources, causing property damage to the state aquatic biological resources for a total amount of 2,947 rubles.
When imposing a punishment, the court took into account as circumstances mitigating the punishment of the defendant: admission of guilt, repentance for the deed, voluntary compensation for property damage caused as a result of the crime.
By studying the data on the personality of the defendant, it was established that Rubtsov lives alone and works. At the place of residence and work, it is characterized positively, there were no complaints about his behavior in everyday life, he is not registered with doctors, he was not brought to criminal and administrative responsibility.
Taking into account the nature and degree of public danger of the committed environmental crime, the factual circumstances of the case, the identity of the perpetrator, the impact of the imposed punishment on the correction of the convicted person and on the conditions of his life, the presence of mitigating circumstances, in order to restore social justice, the court believes that R. was sentenced to 1 year of correctional work with a retention of 5% of the convict's earnings to the state, since, according to the court, it will be able to fully ensure the achievement of the goals of punishment, as well as contribute to the correction of the convict and prevent him from committing new crimes. Taking into account the financial situation of the defendant, established in the court session, the court considered it inexpedient to impose a penalty in the form of a fine.
The following were considered in a special court procedure:
in 2016 - 2 out of 3 cases;
in 2017 - 5 out of 5 cases;
in 2018 - 1 out of 1 cases.
Thus, by the verdict of the magistrate of the judicial section within the administrative-territorial boundaries of the entire Gaysky district of March 29, 2018, R. was found guilty of committing a crime under paragraph "b" of Part 1 of Art. 256 of the Criminal Code of the Russian Federation. The case was considered without a trial in accordance with the procedure established by Chapter 40 of the Criminal Procedure Code of the Russian Federation.
Authority inquest of Mr. was accused of being on March 23, 2016, on a section of the Ural River, two kilometers from the village of Uralsk, Gaysky urban district of the Orenburg region, in an area that, as of 03/23/2016, was a wintering place for fish species, acting deliberately, with the aim of illegal fishing, knowing that it is acting illegally, in violation of the requirements of the Federal Law of December 20, 2004 No. 166-FZ "On Fishing and the Preservation of Aquatic Biological Resources" (as amended by the law of June 29, 2015), by the method of mass extermination of fish in the form of a fishing net , which is a fishing gear prohibited for use, an instrument of mass destruction of aquatic biological resources, carried out illegal fishing, which caused property damage to the state aquatic biological resources totaling 2,742 rubles.
As it was seen from the materials of the case initiated against a specific person, G-in his guilt in committing a crime under paragraph "b" of Part 1 of Art. 256 of the Criminal Code of the Russian Federation, recognized the nature, amount of harm caused by the crime, as well as the legal assessment given in the decision to initiate a criminal case, did not dispute, he filed a petition for an inquiry in an abbreviated form in the order of Chapter 32.1 of the Code of Criminal Procedure of the Russian Federation. By the decision of the interrogator, the request for an inquiry in an abbreviated form was satisfied, while the conditions specified in paragraph 2 of Article 226.1 of the Code of Criminal Procedure of the Russian Federation were met. Circumstances precluding the production of an inquiry in an abbreviated form, provided for in Art. 226.2 of the Code of Criminal Procedure of the Russian Federation, the court did not establish.
At the end of the inquiry, in an abbreviated form, when familiarizing himself with the materials of the criminal case, G-v filed a petition for a verdict without a trial in the manner prescribed by Chapter 40 of the Criminal Procedure Code of the Russian Federation.
In the judicial meeting Mr supported this petition, while the magistrate found that the evidence obtained during the investigation in the criminal case was not contested by the defendants, the petition of Gv for the application of a special procedure for the trial was declared voluntarily, after consultation with the defense lawyer, he is aware of the nature and consequences of the sentence without a trial, the sanction of paragraph "b" of Part 1 of Art. 256 of the Criminal Code of the Russian Federation does not exceed 10 years in prison.
Considering that the inquiry was conducted in an abbreviated form, the public prosecutor, defense lawyer, and the victim's representative, according to the submitted application, did not object to the application of a special procedure for the trial.
The accusation of committing a crime, with which the defendant Gv agreed, the court considered justified, confirmed by the evidence collected in the criminal case, and came to the conclusion that it was possible to consider the case in a special order with a guilty verdict.

There were no cases of acquittals or termination of criminal cases in this category.
No juvenile sentences were passed.
The greatest material damage for the considered criminal cases amounted to 8000 rubles.
Cases on the grounds of Articles 25, 25.1, 27, 28 of the Code of Criminal Procedure of the Russian Federation did not stop.
Persons from the assigned punishment in this category of cases were not released in the considered cases.
Decisions on the basis of part 2 of article 443 of the Criminal Procedure Code of the Russian Federation on this category were not issued.
No private decisions were issued on this category of cases.
In the category of cases under consideration in 2016 and 2018, the sentences were not changed and were not canceled in 2017 by the appeal decision of the Gaysky City Court of the Orenburg Region dated 09.21.2017, 1 sentence of the magistrate of the judicial section within the administrative-territorial boundaries of the entire Gaysky District of the Orenburg Region was changed from 10.08. 2017 No. 1-23 / 17, in which M. was found guilty of committing a crime under paragraph "b, c" part 1 of article 256 of the Criminal Code of the Russian Federation, sentenced to 4 months in prison.
Court appellate instance with reference to clause 1 of part 1 of article 389.18 of the Code of Criminal Procedure of the Russian Federation, he indicated that the magistrate, in addition to the presence of M. a minor child, whose father he is, did not take into account that he lives with two other minors, 05/03/2002 and 07/06/2009 year of birth that are dependent on him.
The judgment of the magistrate was changed: the court of appeal recognized it as a circumstance mitigating the punishment of M. A.N. on p.p. "B" Part 1 of Art. 256 of the Criminal Code of the Russian Federation the presence of two young children at the guilty party, the punishment of M. A.N. on p.p. "B" Part 1 of Art. 256 of the Criminal Code of the Russian Federation mitigated to two months in prison.
The type assigned to a convicted person to serve a sentence of imprisonment correctional institution changed from a general regime correctional colony to a settlement colony, since M., in the presence of a relapse, had not previously served a sentence of imprisonment.
In addition, the reference to the application of the rules of Part 2 of Art. 68 of the Criminal Code of the Russian Federation. In the rest of the sentence, the judgment of the magistrate was left unchanged, the prosecutor's appeal was satisfied, and the convict's complaint was dismissed.

Magistrate M. N. Kanakov

annotation scientific article on law, the author of the scientific work is E.V. Adamanova.

Related Topics scientific works on law, the author of scientific work is E.V. Adamanova.

The text of the scientific work on the topic "Problems of the application of environmental legislation in judicial and pre-trial practice"

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