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
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
The responsibility under administrative law
is the most prevailing one for breaching the regulations of water use and
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
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
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
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 structure of damages includes:
1) restoration costs of enterprises, organizations, and
2) the cost of damaged property (buildings, facilities,
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
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.
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:
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