The problems of legal liability for the breach of the water code of the republic of Kazakhstan

Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011

Author: Khassenova Moldir, Kazakh-American Free University, Kazakhstan

Providing for the legal regulation of water consumption relations, the state ensures strict observance of the water code by water consumers, enterprises, organizations, institutions, and citizens. The state defends the rights of water consumers from different infringements and requires the water consumers to fulfill their commitments. Therefore, the state protects the right of water use in subjective and objective senses, i.e. the subjective right of enterprises, organizations, institutions, citizens, and the institute of water right.

To protect the rights of water consumers, legislation provides for a system of measures to prevent offences and restore the broken rights of water consumers. The given measures are applied by means of putting into force a mechanism of legal liability for the breach of the water code. In addition to the system of state administration and control the mechanism of legal liability is of great importance in the concern of the protection of water consumption rights.

The liability for breaching the right of water consumption in certain cases is to force water consumers to fulfill their commitments to the state and other legal subjects. At the same time it purposes to force the public authorities, enterprises, institutions, organizations, and other officials and citizens to behave in a way so as to protect the legal rights and interests of water consumers and the legality of the acts relating to the administration of water use and protection in the country.

First and foremost, the liability is expressed in the ascertainment and application of sanctions on enterprises, institutions, officials, and civilians for their activity or inactivity breaking the requirements to water consumers’ responsibilities or water consumers’ rights. The sanctions are applied to enterprises, institutions, officials, and civilians guilty of breaching the right of water consumption. The fact of an offence and the guilt of an offender are based on the responsibility in subjective and objective senses.

According to the subject there are offences committed by water consumers themselves and offences committed by other officials, civilians, and organizations.

To the first group of offences belong the default of water consumers’ commitments to the state and other subjects of law. To the second group of offences belong the breach of subjective rights of some or other water consumers by state bodies authorized to regulate water consumption, to solve the problems of allocation and withdrawal of water bodies, etc, or by other state bodies, water consumers, and other subjects.

The given classification of offences concerning the breach of water consumption right is important for the detection of the subjects, liability and type of the applied sanctions.

If an offence is the default of water consumers’ commitments, the water consumer is to bear financial liability to the state and other subjects. In the cases stipulated by law the water consumer may be deprived of the right to use water bodies. Furthermore, the guilty officials can be made administratively and disciplinarily responsible for the default of water consumers’ commitments. On condition that a water consumer-offender incurs damages there may arise a question of damages compensation by guilty parties according to the procedure and within the limits of financial responsibility provided for by the legislation.

If the subjective rights of water consumers are broken by the offence of other parties the latter are to be financially responsible to the aggrieved water consumer. The guilty are to be made criminally, administratively, and disciplinarily responsible.

Depending on the objects of infringement there are offences connected with the breach of state property in water bodies, offences connected with the breach of water protection and rational use order, unauthorized water consumption, and unauthorized hydro engineering.

The second group of offences causes changes in water quality, pollution and exhaustion of water bodies: over-dumping of sewage; other cases of water pollution; putting into operation communal and other enterprises without water pollution preventing facilities; failure to take the necessary measures to prevent ill effect of waters, in particular, flood control measures.

The third group of offences includes the breach of water consumption order, destruction and damage to water facilities, unauthorized construction or reconstruction of objects able to cause the changes of water regime, etc.

Each of the enumerated offences is characterized by its specific features lying at the basis of legal qualification of the offences, the choice of types and measures applied.

All the offences are enumerated in the Water Code of the Republic of Kazakhstan dated July 9, 2003. The Water Code provides for the guilty to be criminally and administratively responsible. The latter is of great importance for the whole mechanism of liability in the sphere of water legislation.

With regard to the types of liability the breaches of water consumption right are subdivided into crimes, administrative and disciplinable offences, and civil-law delicts. The given classification of water offences is closely connected with the previous classifications and supplements them.

One of the objectives of the agencies for regulation of water use and protection is to take measures preventing the breach of water consumption conditions provided for by the legislation, to detect the causes and consequences of water legislation violation, and to prepare the documents for making the guilty amenable.

The breaches of water consumption are found as a result of routine inspections of rational water use, taking water conservation measures, operation of sewage works, and the state of sewage dumping; as a result of unscheduled inspections on the instructions of superior bodies, sanitary service, fishing control authority, hydro-meteorological service, and in cases of inferior quality of water.

The determination of legal liability applied in the fight against breaching the water legislation supposes the detection of the following: firstly, the point of liability as a legal category - to make the guilty administratively and criminally responsible; secondly, its role in preventing the breaches of legislation and ensuring the legality in the sphere of water consumption – to prosecute state associations, enterprises, organizations, kolkhozes, cooperatives, public associations, and citizens on damages disgorgement, to submit the materials to public prosecution bodies or internal affairs agencies to make the guilty criminally responsible.

The agencies for water protection may decide to terminate the right of water consumption or to suspend the productive activity of a water consumer. The given agencies are to interpret the right to file petitions for damages compensation to corresponding enterprises and citizens.

The responsibility under administrative law is the most prevailing one for breaching the regulations of water use and protection.

The Administrative Code of the Republic of Kazakhstan provides for the list of water offences involving legal liability.

In contrast to administrative penalties applied to offenders the science and practice of law single out administrative and preventive measures to be applied in the following cases: there is no an administrative offence but security requires to take preventive measures and protect moral and property interests of the state, citizens, and public associations. The main administrative and preventive measure is the suspension and termination of the operation of polluting enterprises, departments, and aggregations.

Unfortunately, the given administrative and preventive measures are not taken in practice. In many cases when it is desirable to suspend or terminate further operation of polluting enterprises, the agencies regulating water use and protection do not fulfill their functions.

Thus, to make the administrative and preventive measures more effective, it is of great importance to improve the status of the agencies for regulation of water use and protection in the system of the State Committee of Nature Preservation. These state bodies are to be independent from the ministries and agencies running water resources.

According to the legislation, criminal responsibility in the sphere of environment protection is provided for ecological offences, i.e. socially-dangerous actions (inactions) infringing on ecological law-and-order, doing harm to environment and population health (or threatening to infringe).

The basic normative form regulating criminal responsibility for ecological offences is the Criminal Code of the Republic of Kazakhstan.

The Water Code provides for financial responsibility of enterprises, organizations, and citizens, i.e. reparation of damages caused by the breach of water legislation.

The comparative analysis of criminal legislation draws the following conclusion: to make the fight against breaching water legislation more effective it is recommended to improve the norms of the Criminal Code, at least, to unify it concerning the majority of offences.

The development of criminal legal protection of waters in the legislation of the Soviet and post-Soviet periods are within the general sketch of legal norms development: casual description of conduct standards; abstract description of general standard of conduct; the concretization of the standard in the form of legal norms of an institution.

A famous ancient Greek fable “The Way Xanf Drank the Sea” presents the hopelessness of separation of rivers, mountain glaciers, and underground sources from sea waters. The pollution of the former causes the pollution of the latter. The evaporation of sea waters precipitates into upper reaches, lakes, and glaciers.

Furthermore, the separation of water protection legislation presents some difficulties concerning nature reservation in the Kaspi Region (“Kaspi – sea – lake”) for neighboring countries.

Nowadays the measure of financial responsibility – reparation of damages – is not taken sufficiently to ensure water rational use and protection.

Kolbassov O.S. subdivides two groups of damages caused by breaching water legislation:

1) the damages of the state - water owner;

2) the damages of enterprises, organizations, and citizens.

There are two types of pays: for emission limits and for the exceeding of the limits. In case of breaching the routine work of enterprises in the bad weather, accident emissions, and placing the factory waste in open places the fine is imposed tenfold. Paying for environment pollution does not release an enterprise from taking nature-conservative measures and observing the legislation.

The structure of damages includes:

1) restoration costs of enterprises, organizations, and citizens;

2) the cost of damaged property (buildings, facilities, crops, etc.);

3) the income enterprises, organizations, and citizens might get in non-breaching of water legislation;

4) the cost for restoration of water bodies’ state.

In case if the damages are resulted from the actions (inactions) of two or more water consumers, the damages are refunded proportionally.

The damages to enterprises, organizations, and citizens are refunded judicially. To the state the damages are refunded under arbitral procedure on the basis of claims by the agencies for regulation of water use and protection if water bodies are damaged.

Along with the measures of legal liability the measures of preventive control and the right to terminate ecologically destructive activity are of great importance in the sphere of nature conservation. The given measures include an ecological examination of projects, plans, etc. and the right of state organs to suspend or terminate the operation of enterprises violating the legislation on nature conservation and rational use of natural resources. But the given measures will be effective only if they are taken openly, with public participation and under public control.

REFERENCES

1. Конституция Республики Казахстан от 30 августа 1995 года - Алматы: ЮРИСТ, 2011.

2. Водный кодекс РК от 09.07.2003 г. - Алматы: ЮРИСТ, 2011. – 69 с.

3. Экологический кодекс РК от 07.01. 2007 г. – Алматы: ЮРИСТ, 2011.

4. Ерофеев Б.В. Экологическое право. М., "Высшая школа", 1992, с. 287

5. Новикова Е.В. Правовые проблемы природопользования в Каспийском регионе// «Государство и право», 2001, №11, С. 76-77



Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011

  
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