Administrative environmental offenses. Administrative environmental offenses Administrative offenses in the environmental sphere
Introduction
Chapter 1. General characteristics of an administrative offense
1.1 The concept and types of administrative offenses.
1.2 Features and distinctive features of administrative offenses
Chapter 2. Environmental offenses: concept, subject, object
2.1 Concept and types of environmental offense
2.2 Subjects and objects of responsibility
Chapter 3. Responsibility for environmental offenses
3.2 Liability for environmental offenses
Chapter 4 Problems of Law Enforcement Practice
4.1 Problems of delimitation of the grounds for bringing to criminal and administrative liability in the field of environmental protection
4.2 Problems of monitoring the solution of issues of environmental and sanitary and epidemiological well-being
population
Conclusion
List of sources used kov
Introduction
Environmental protection is one of the most urgent problems of our time. Scientific and technological progress and increased anthropogenic pressure on the natural environment inevitably lead to an aggravation of the ecological situation: natural resources are depleted, the natural environment is polluted, the natural connection between man and nature is lost, aesthetic values are lost, the physical and moral health of people worsens, economic and political struggle for commodity markets, living space.
As for the Russian Federation, it belongs to the countries of the world with the worst environmental situation. Pollution of the natural environment has reached unprecedented proportions. Only economic losses, not taking into account the harm to the environment and human health, according to experts, annually amount to an amount equal to half of the country's national income. The number one environmental problem in the Russian Federation is environmental pollution.
Every year the number of environmental offenses increases. They increasingly influence the state of public security, in a number of regions they act as a factor of political destabilization. Environmental offenses cause harm not only to the country's economy, but also undermine the very biological foundations of human existence.
All this dictates the need to increase the efforts of all state, including law enforcement agencies, in the protection and restoration of the natural human habitat.
The study of environmental legislation is important because offenses violate the interests that determine the law and are protected by it, and thereby harm public and personal interests, the established legal order. This is expressed in the negative consequences of the offense, which is a violation of the rule of law, the disorganization of social relations and at the same time (although not always) the derogation, destruction of any good, value, subjective right, restriction of their use, restriction of the freedom of behavior of other subjects.
The set of legislative acts existing in the Russian Federation and related to environmental protection is one of the main tools in the conservation and restoration of nature. The object of the research is social relations arising in the field of environmental protection.
The subject is administrative responsibility for environmental offenses. The purpose of this work is to briefly review and analyze the essence of the phenomenon of environmental offenses, as well as to review the types and degrees of liability provided for by law for environmental offenses.
To achieve this goal, it is necessary to solve the following tasks:
Give a definition and classification of the concept and types of environmental offenses;
Analyze the subject, object of the offense, the subjective and objective sides of the offense;
Determine the status of bodies exercising control over environmental activities;
To characterize the features of administrative responsibility for environmental offenses;
Determine the range of problems in the field of administrative responsibility for environmental offenses.
In connection with the stated research problem, as well as certain specifics of the tasks set, it should be noted that consideration of the legal foundations of administrative responsibility for environmental offenses involves the use of appropriate research methods that will allow for more efficient implementation of the available data. The basis of the research approach of this study was the synthesis of the deductive and inductive methods. The theoretical analysis of the current legislation is supplemented by an analysis of the empirical component, the practice of applying these norms in the law enforcement sphere. The formal-legal method was used as a special research method.
In the study of the topic, monographs and articles from periodicals of such authors as A.B. Vengerov, N.S. Malein, Yu.A. Denisov, N.A. Matuzov, A.V. Malko and others were used.
1.1 The concept and types of administrative offenses th
The legal concept of an administrative offense is enshrined in Part 1 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation. It "recognizes an unlawful, guilty action (inaction) of an individual or legal entity, for which administrative responsibility is established by this Code or the laws of the constituent entities of the Russian Federation on administrative offenses."
This definition is formal, since it contains only legal signs of an act.
Wrongfulness is the legal recognition of anti-social behavior that is harmful to citizens, society, and the state.
The antisocial nature of crimes is so great that they are recognized as socially dangerous. And the degree of harmfulness of most administrative offenses is low, they are not socially dangerous.
So, the first sign of an administrative offense is social harm.
The second sign is administrative wrongfulness. Such an act is directly prohibited by the articles of the Special Part of the Code of Administrative Offenses of the Russian Federation or the laws of the constituent entities of the Russian Federation on administrative offenses.
The third sign of an administrative offense is an act, that is, a conscious, volitional action or inaction of one or more people.
The fourth sign characterizes the subjects of the offense - this is an act committed by an individual or legal entity. It cannot be committed by an unorganized group of citizens, a complex organization that is not a legal entity (a party, a financial and industrial group, etc.), a branch and other structural subdivisions of a legal entity.
The fifth sign of an administrative offense is guilt, that is, it is a conscious, volitional act, committed intentionally or carelessly.
The sixth sign of an administrative offense is punishability. The possibility of applying administrative penalties is a common feature of administrative offenses. In most cases, if a misconduct is detected, the perpetrator is brought to administrative responsibility. But in some cases, the punishment cannot be applied, for example, the statute of limitations has expired, the norm has been canceled, etc.
Classification of administrative offenses can be carried out on various grounds.
First of all, it is necessary to take into account the existence of various sources of legal regulation. Administrative responsibility is established by the Code of Administrative Offenses of the Russian Federation and the laws of the constituent entities of the Russian Federation on administrative offenses (Article 1.1 of the Code of Administrative Offenses of the Russian Federation). A special part of the Code of Administrative Offenses establishes administrative liability on issues of federal significance, including for violation of the rules and norms provided for by federal laws and other regulatory legal acts of the Russian Federation (Article 1.3 of the Code of Administrative Offenses of the Russian Federation).
Violation of the law on meetings, rallies, demonstrations, marches and picketing (Article 5.38 of the Code of Administrative Offenses of the Russian Federation), driving a vehicle by a driver who does not have documents provided for by the Rules of the Road (Article 12.3 of the Code of Administrative Offenses of the Russian Federation) knowingly false call of specialized services (Article 19.13 of the Code of Administrative Offenses of the Russian Federation).
As for the relevant laws, we can mention the Law of February 14, 2003 No. 99-OZ “On Administrative Offenses in the Novosibirsk Region” (as amended on March 12, 2004). In chapter 4 of this law, article 4.2. establishes responsibility for committing at night (from 10 p.m. to 6 a.m. local time) any actions that produce noise and disturb the peace and quiet of citizens, including personal actions of citizens, mechanical means and technical devices, with the exception of emergency and rescue operations, as well as other urgent work necessary to ensure the safety of citizens or the functioning of life support facilities for the population.
Administrative offenses can be combined into different groups that have the same main object (subject) of encroachment. It is on this basis that the heads of the Special Part of the Code of Administrative Offenses of the Russian Federation were formed.
Thus, administrative offenses are distinguished that infringe on the rights of citizens (Chapter 5 of the Code of Administrative Offenses of the Russian Federation), infringe on health, sanitary and epidemiological well-being of the population and public morality (Chapter 6), in the field of property protection (Chapter 7), in the field of protection environment and nature management (ch. 8), in industry, construction and energy (ch. 9), in agriculture, veterinary medicine and land reclamation (ch. 10), in transport (ch. 11), in the field of road traffic ( ch. 12), in the field of communications and information (ch. 13), in the field of entrepreneurial activity (ch. 14), in the field of finance, taxes and fees, the securities market (ch. 15), in the field of customs (violations of customs rules) (Chapter 16), encroaching on the institutions of state power (Chapter 17), in the field of protecting the State Border of the Russian Federation and ensuring the regime of stay of foreign citizens or stateless persons on the territory of the Russian Federation (Chapter 18), against the order of management (Chapter 19), encroaching on public order and public safety (ch. 20), in the field of military registration (ch. 21).
Administrative offenses can also be classified according to the subjects of administrative responsibility, which include citizens, officials and legal entities.
For example, violation of the rights of a member of an election commission, a referendum commission, an observer, or an observer, I entail liability for both citizens and officials (Article 5.6 of the Code of Administrative Offenses of the Russian Federation); violation during the election campaign of the conditions for advertising entrepreneurial and other activities - the responsibility of citizens, officials and legal entities (Article 5.9 of the Code of Administrative Offenses of the Russian Federation).
Administrative offenses can also be distinguished by the form of guilt. So, there are intentional offenses, for example, the deliberate destruction or damage to someone else's property (Article 7.17 of the Code of Administrative Offenses of the Russian Federation); offenses committed through negligence, for example, careless storage of a citizen's identity card (passport), resulting in the loss of this certificate (passport) (Article 19.16 of the Code of Administrative Offenses of the Russian Federation).
In some cases, a person is held liable, regardless of whether the offense was committed intentionally or through negligence. This applies, for example, to violations of the requirements for the rational use of subsoil (Article 8.10 of the Code of Administrative Offenses of the Russian Federation), violations of the rules for ensuring the safety of passengers on ships of water transport, as well as on small boats (Article 11.10 of the Code of Administrative Offenses of the Russian Federation), failure to comply with the deadlines for submitting a customs declaration (Art. 16.12 of the Code of Administrative Offenses of the Russian Federation). Administrative punishment is a measure of responsibility established by the state for the commission of an administrative offense, which is applied in order to prevent the commission of new delicts, both by the offender himself and by other persons (Article 3.1 of the Code of Administrative Offenses of the Russian Federation).
There are nine types of administrative penalties. Let us dwell on a brief description of each type of administrative punishment.
A warning is a formal censure of a person or entity. It is issued in writing (Article 3.4 of the Code of Administrative Offenses of the Russian Federation). It mainly applies to persons who have committed minor administrative offenses. An example is smoking in cars (including vestibules) of a suburban train, in places not designated for smoking on a local or long-distance train (Article 11.17 of the Code of Administrative Offenses of the Russian Federation).
It is necessary to distinguish between a warning and an oral remark, which is issued in the event that a person is released from administrative responsibility with the insignificance of the offense committed (Article 2.9 of the Code of Administrative Offenses of the Russian Federation).
An administrative fine is a monetary penalty. It is used most often and is expressed as a multiple of: 1) the minimum wage; 2) the value of the subject matter of the administrative offence; 3) the amount of unpaid taxes, fees or customs duties, or the amount of an illegal currency transaction, or another specially provided amount of money; foreign exchange earnings, the value of domestic and foreign securities, or the amount of an unpaid administrative fine (Article 3.5 of the Code of Administrative Offenses of the Russian Federation). The following offenses can be cited as relevant examples:
1) for violation of sanitary and epidemiological requirements for the organization of catering for the population, an administrative fine is imposed on officials in the amount of 20 to 30 times the minimum wage (Article 6.6 of the Code of Administrative Offenses of the Russian Federation);
2) for petty theft of property, an administrative fine is provided in the amount of up to three times the value of the stolen property (Article 7.27 of the Code of Administrative Offenses of the Russian Federation);
3) the implementation of illegal foreign exchange transactions entails the imposition of an administrative fine in the amount of three-fourths to one amount of the amount of the illegal foreign exchange transaction (part 1 of article 15.25 of the Code of Administrative Offenses of the Russian Federation).
Paid seizure of the instrument of committing or the subject of an administrative offense is their forced seizure and subsequent sale with the transfer to the former owner of the proceeds, minus the costs of selling the seized item (Article 3.6 of the Code of Administrative Offenses of the Russian Federation). An example is the confiscation of weapons and ammunition for compensation by citizens for violation by citizens of the rules for storing, carrying or destroying weapons and ammunition for them (Article 20.8 of the Code of Administrative Offenses of the Russian Federation).
The application of this punishment has a limitation: the paid seizure of hunting weapons, ammunition and other permitted hunting or fishing tools cannot be applied to persons for whom hunting or fishing is the main legal source of livelihood (Article 3.6 of the Code of Administrative Offenses of the Russian Federation).
The confiscation of the instrument of committing or the subject of an administrative offense consists in the gratuitous conversion into federal property or the property of a subject of the Russian Federation, things that have not been withdrawn from circulation (Article 3.7 of the Code of Administrative Offenses of the Russian Federation). An example is the confiscation of weapons and ammunition for them for firing weapons in places not designated for this (Article 20.13 of the Code of Administrative Offenses of the Russian Federation).
The application of confiscation is subject to the same limitation that is established for the confiscation for compensation.
Deprivation of a special right granted to an individual is established for gross and systematic violation of the procedure for using this right (Article 3.8 of the Code of Administrative Offenses of the Russian Federation). Thus, the deprivation of the right to steer a vessel was established for navigating a vessel (including a small one) by a navigator or another person who is in a state of intoxication (Article 11.9 of the Code of Administrative Offenses of the Russian Federation).
The application of this type of punishment also has some limitations. For example, deprivation of the right to drive a vehicle cannot be applied to a person who uses it due to disability (with the exception of cases of driving while intoxicated, etc.). Deprivation of the right to hunt cannot be applied to persons for whom it is the main legal source of livelihood (Article 3.8 of the Code of Administrative Offenses of the Russian Federation).
Administrative arrest consists in keeping the offender in isolation from society (Article 3.9 of the Code of Administrative Offenses of the Russian Federation). It is established and imposed only in exceptional cases. For example, for disobedience to a lawful order of a police officer, a military man, an employee of the authorities for controlling the circulation of narcotic drugs and psychotropic substances, or an employee of the penitentiary system (Article 19.3 of the Code of Administrative Offenses of the Russian Federation).
The maximum term of administrative arrest is 15 days, and for violation of the requirements of the state of emergency or the regime in the zone of the counter-terrorist operation - 30 days (Article 3.9 of the Code of Administrative Offenses of the Russian Federation).
The application of administrative arrest, as mentioned earlier, has certain limitations: it cannot be applied to pregnant women and women with children under the age of 14, persons under the age of 18, disabled people of groups I and II, military personnel and other persons (art. 3.9 of the Code of Administrative Offenses of the Russian Federation). Administrative expulsion from the Russian Federation of foreign citizens or stateless persons is a forced and controlled movement of these citizens and persons across the State Border of the Russian Federation outside the Russian Federation, and in cases provided for by law - controlled independent departure of these citizens and persons from the Russian Federation ( article 3.10 of the Code of Administrative Offenses of the Russian Federation).
This type of punishment is applied, for example, for violation of the regime at checkpoints across the State Border of the Russian Federation (Article 18.4 of the Code of Administrative Offenses of the Russian Federation), for violation of the regime of stay in Russia (Article 18.8 of the Code of Administrative Offenses of the Russian Federation).
Administrative expulsion should be distinguished from deportation, which is a measure of administrative restraint, i.e. from forced expulsion from the Russian Federation of a foreign citizen or stateless person in the event of termination of the legal grounds for residence or stay in the territory of Russia.
Disqualification consists in depriving an individual of the right to hold senior positions in the executive management body of a legal entity, to be a member of the board of directors (supervisory board), to carry out entrepreneurial activities to manage a legal entity, and also to manage a legal entity in other cases. It applies to persons exercising organizational and administrative or administrative and economic functions in the body of a legal entity, to members of the board of directors, as well as to persons engaged in entrepreneurial activities without forming a legal entity (Article 3.11 of the Code of Administrative Offenses of the Russian Federation).
Disqualification is assigned for such offenses as, for example, fictitious or deliberate bankruptcy (Article 14.12 of the Code of Administrative Offenses of the Russian Federation), improper management of a legal entity (Article 14.21). Disqualification is set for a period of six months to three years. Administrative suspension of activities (introduced by Federal Law No. 45-FZ of May 9, 2005). Administrative suspension of activities consists in the temporary cessation of activities of persons engaged in entrepreneurial activities without forming a legal entity, legal entities, their branches, representative offices, structural divisions, production sites, as well as the operation of units, facilities, buildings or structures, the implementation of certain types of activities (works) , provision of services. Administrative suspension of activities is applied in the event of a threat to human life or health, the occurrence of an epidemic, an epizootic, infection (contamination) of quarantine facilities with quarantine objects, the onset of a radiation accident or a man-made disaster, causing significant damage to the state or quality of the environment, or in the event of an administrative offense in the field of turnover narcotic drugs, psychotropic substances and their precursors, in the field of countering the legalization (laundering) of proceeds from crime and the financing of terrorism, in the field of restrictions on the implementation of certain types of restrictions established in accordance with federal law in relation to foreign citizens, stateless persons and foreign organizations activities, in the field of rules for attracting foreign citizens and stateless persons to labor activities carried out at shopping facilities (including shopping malls), in the field of management procedures, in the field of public order and public security, as well as in the field of urban planning activities (in ed. Federal Laws No. 189-FZ of 05.11.2006, No. 232-FZ of 18.12.2006, No. 211-FZ of 24.07.2007) will not be able to achieve the goal of administrative punishment. Administrative suspension of activities is established for a period of up to ninety days.
The Code of Administrative Offenses provides for basic and additional administrative penalties. A warning, an administrative fine, deprivation of a special right, administrative arrest, disqualification and administrative suspension of activities may be established and applied only as basic punishments. At the same time, seizure for compensation and confiscation of the instrument of committing or the subject of an administrative offense, as well as administrative expulsion, can be established and applied as both basic and additional punishments (Article 3.3 of the Code of Administrative Offenses of the Russian Federation).
The laws of the constituent entities of the Russian Federation can establish penalties only in the form of a warning and an administrative fine (Article 3.2 of the Code of Administrative Offenses of the Russian Federation).
It should be borne in mind that the following administrative penalties may be applied to legal entities: warning, fine, paid seizure, confiscation and administrative suspension of activities (Article 3.2 of the Code of Administrative Offenses of the Russian Federation). This is quite obvious, since other types of punishments in their content can only be applied to individuals.
The appointment of an administrative penalty is carried out in accordance with the rules established by the Code of Administrative Offenses of the Russian Federation.
The general rules for imposing an administrative penalty are formulated in Art. 4.1 of the Code of Administrative Offenses of the Russian Federation. They include the following provisions.
First, administrative punishment is imposed within the limits established by law, providing for liability for the offense committed. This means that when choosing the type and measure of punishment, one should be strictly guided by the sanction of the relevant legal norm.
Secondly, administrative punishment is imposed in accordance with the requirements of the Code. This refers to normative instructions concerning, first of all, the procedure for carrying out activities for the consideration and resolution of cases of administrative offenses, as well as for the revision of decisions and decisions made.
Thirdly, when imposing an administrative penalty, various circumstances must be taken into account. These include the nature of the offense committed (the way it was committed, the severity of the consequences, etc.), circumstances, both mitigating and aggravating responsibility.
With regard to a natural person, the identity of the perpetrator and his property status are also taken into account. With regard to a legal entity, its property and financial position is taken into account.
It should be noted that the imposition of an administrative penalty does not relieve a person from the performance of a duty, for failure to perform which he was punished (Article 4.1 of the Code of Administrative Offenses of the Russian Federation).
The circumstances mitigating administrative responsibility include the following: 1) repentance of the person who committed the offense; 2) voluntary reporting by a person of an offense committed by him; 3) prevention by this person of the harmful consequences of the committed violation, voluntary compensation for the damage caused or elimination of the damage caused; 4) the commission of an offense in a state of strong mental agitation (affect) or in the event of a combination of difficult personal or family circumstances; 5) commission of an offense by a minor; 6) commission of an offense by a pregnant woman or a woman with a small child. In addition, the subjects considering the case of an offense may recognize other circumstances as mitigating ones (Article 4.2 of the Code of Administrative Offenses of the Russian Federation), therefore, the list of such circumstances is open.
The list of circumstances aggravating administrative responsibility, on the contrary, is closed. Any other than the following may not be considered as such circumstances, except for the following: 1) the continuation of unlawful behavior, despite the demand of authorized persons to stop it; 2) repeated commission of a homogeneous administrative offense, if the person continues to be considered administratively punished for the previous violation; 3) involvement of a minor in the commission of an administrative offense; 4) commission of an offense by a group of persons; 5) committing an offense in a natural disaster or other emergency circumstances; 6) the commission of an administrative offense in a state of intoxication (depending on the nature of the violation committed, this circumstance may not be recognized as aggravating) (Article 4.3 of the Code of Administrative Offenses of the Russian Federation).
When imposing administrative penalties for a person committing several offenses, the following should be borne in mind. As a general rule, punishment is assigned for each committed violation. However, if a person has committed one action (inaction) containing elements of administrative offenses, the responsibility for which is provided for by two or more articles (parts of articles) of the Code of Administrative Offenses of the Russian Federation and the consideration of cases for which is under the jurisdiction of one and the same subject (judge, body, official person), then the punishment is imposed within the limits of the sanction, which provides for the imposition of a more severe punishment. In this case, additional penalties may be imposed, provided for by each of the relevant sanctions.
Statute of limitations for bringing to administrative responsibility, i.e. the period during which a punishment can be imposed is established in Art. 4.5 of the Code of Administrative Offenses of the Russian Federation. The general term for issuing a decision on the case is two months from the date of the offense, and the special term relating to certain categories of offenses (violation of the legislation of the Russian Federation on internal sea waters, territorial sea, continental shelf, etc.), including offenses that entail the application of punishment in the form of disqualification is equal to one year.
There are two exceptions to the established rule. In the case of a continuing offense, the above periods begin to be calculated from the day the violation was discovered. If a decision is made to refuse to initiate a criminal case or to terminate a criminal case, but if there are signs of an administrative offense in the person’s actions, these time limits begin to be calculated from the date the relevant decision is made.
If the petition of the person in respect of whom the proceedings are being conducted to consider the case at the place of his residence is satisfied, the limitation period is suspended from the moment the petition is satisfied until the receipt of the case materials by the subject authorized to consider it (Article 4.5 of the Code of Administrative Offenses of the Russian Federation).
The period during which a person is considered subjected to administrative punishment (i.e., is administratively punished) is set as follows: within one year from the date of the end of the execution of the decision to impose this punishment (Article 4.6 of the Code of Administrative Offenses of the Russian Federation). The end date for the execution of the issued decision is determined based on the content of the punishment (full payment of the amount of the imposed fine, the end of serving an administrative arrest, etc.).
When imposing an administrative penalty, questions may arise about compensation for property damage and moral damage caused by an administrative offense. As a general rule, these issues are considered by the court in civil proceedings. There is one exception: in the absence of a dispute on compensation for property damage, the judge has the right to decide on the issue of compensation for property simultaneously with the imposition of punishment damage (Article 4.7 of the Code of Administrative Offenses of the Russian Federation).
In the general theory of law, at present, the following properties of an offense are distinguished, which together form its concept:
1. an offense is always an act (action or inaction);
2. always a guilty act;
3. act socially dangerous, i.e. causing or likely to cause harm to society;
4. an act contrary to the rule of law;
5. an act for which legal responsibility is envisaged.
The listed signs constitute the content of the concept of an offense developed in the general theory of law and are summarized in its definitions given in the scientific and educational literature.
In terms of formal logic, its characterization as a socially dangerous act indicates a generic sign of an offense, wrongfulness and guilt form its specific differences.
The first sign of an offense is that any offense is always a certain act, which is under the constant control of the will and mind of a person. This is a volitional, conscious act, expressed in the action or inaction of a person.
Another important sign of the offense is wrongfulness. Not every act - action or inaction is an offense. And only that which is done contrary to the legal decrees violates the law.
A specific expression of the wrongfulness of an act can be either a violation of a prohibition expressly established in a law or any other legal act, or a failure to fulfill the obligations imposed on subjects of law by law or an agreement concluded on its basis.
Thus, an offense is only an act that is committed contrary to legal orders, violates the law.
The next most important sign of an offense is the presence of guilt.
State legal theory and practice in Russia and other countries proceed from the fact that not every illegal act should be considered an offense, but only that which is committed intentionally or through negligence. In other words, it is the fault of the person.
The offense is committed by delinquent people, i.e. able to control their will and their behavior, to be accountable for their actions, to realize their wrongfulness and to be able to bear responsibility for their consequences.
Delicacy is determined in laws and other regulatory legal acts. All sane persons who have reached a certain age are recognized as delinquent.
So, according to the Civil Code of the Russian Federation, full delinquency comes from the age of 18.
In the theory of law, as well as in practice, domestic and foreign lawyers, the signs of an offense include the presence of harm caused to a person or organization by another person or organization, and the presence of a causal relationship between the wrongful act and the harm caused.
As for the presence of harm, not all authors share this point of view. Referring to the current legislation, they quite reasonably note, for example, that a number of norms of criminal and some other branches of law define as offenses such actions or omissions that are likely to entail harmful consequences, but have not yet entailed them. As an example, we can refer to violations of safety regulations at nuclear power plants, mines, factories, which could lead to tragic consequences; to violations of working conditions, requirements of sanitary and epidemiological services, etc., which could also lead to tragic consequences.
Thus, it follows from the foregoing that offenses should be considered not only such unlawful acts that have already entailed harmful consequences, but also those that can cause harm to society, a person or the state.
Administrative offenses have certain distinctive features.
Crimes from misconduct (administrative, disciplinary) are distinguished by a number of properties. The primary differences are the social danger and the type of wrongfulness. Of course, first of all, the material criterion is taken into account - the level of harm caused to society. And on the basis of such an assessment, they solve questions about the type of wrongfulness: criminal, administrative, disciplinary.
Secondary criteria for distinctions operate after the question of the type of wrongfulness is resolved. We are talking about different procedural norms, the difference between criminal, administrative and disciplinary sanctions, the state of a criminal record or administrative (disciplinary) punishment, and other secondary signs.
In the legal literature, there are two opinions about the social danger of offenses. Many scientists believe that all of them are socially dangerous, but crimes are more dangerous, and misdemeanors are less.
The definition of a crime is contained in Part 1 of Art. 14 of the Criminal Code of the Russian Federation: “A socially dangerous act guilty of a guilty act, prohibited by this Code under the threat of punishment, is recognized as a crime.”
In part 2 of Art. 14 of the Criminal Code of the Russian Federation states: “An action (inaction) is not a crime, although it formally contains signs of any act provided for by this Code, but due to its insignificance it does not pose a public danger.” Consequently, an insignificant act cannot be recognized as a crime, since it is not socially dangerous. The solution of the issue of the insignificance of the act belongs to the competence of the investigation and is based on an analysis of the signs of the offense.
In the legal literature, for quite a long time there has been a discussion about whether to recognize social danger as a sign of exclusively crimes or whether it is a criterion that is universal for all offenses.
Supporters of the point of view that offenses are socially dangerous referred to Art. 7 of the Fundamentals of Criminal Law, and now on Art. 14 of the Criminal Code of the Russian Federation, which stipulates that “a socially dangerous act guilty of a guilty act, prohibited by this code under threat of punishment, is recognized as a crime.” But after all, “any type of legal liability used by the state is justified in cases where the illegal act has a certain (greater or lesser) degree of public danger. In the absence of public danger in the action or inaction of a person, he should not be held accountable for anything. These words of the famous scientist A.E. Lunev reflect the position of most modern authors that both crimes and administrative offenses, as well as partly labor (disciplinary) and civil offenses, are socially dangerous. Indeed, drinking alcohol at work or driving while intoxicated can lead to unpredictable and often very serious consequences, as a result of which they are socially dangerous acts, although they are not criminal in themselves.
In this case, the problem of distinguishing between a crime and administrative offenses arises, especially when they are related, for example, hooliganism as a type of crime and petty hooliganism as a type of administrative offense. Such a criterion should be the degree of public danger, which is expressed in the presence or absence of serious consequences, the amount of material damage actually caused, the method and place of the offense and other indicators enshrined in the law and characterizing the individual elements of the offense and the entire composition as a whole.
So, for example, by the presence or absence of grave consequences, it is possible to delimit the composition of an administrative offense under Art. 12.24 of the Code of Administrative Offenses of the Russian Federation “Violation of the Rules of the Road or the rules for operating a vehicle, which caused minor harm to the health of the victim” (i.e., causing harm to health that caused him a short-term disorder), from an adjacent corpus delicti under Art. 264 of the Criminal Code of the Russian Federation “Violation of the Rules of the Road and the Operation of Vehicles”, where liability arises when a person driving a car, tram or other mechanical vehicle violates the Rules of the Road and the operation of vehicles, which negligently caused serious or moderate harm to human health or his death.
Earlier, before the adoption in 1996 of the Criminal Code of the Russian Federation, there were types of crimes with the so-called “administrative prejudice”, when such signs of the objective side of the offense as repetition, repetition and systematicity of its commission, turned an administrative offense into a crime, provided that a person was previously involved for them to administrative responsibility. And this was also considered a criterion for delimiting criminal acts from non-criminal ones. Now this is not the case, since this criterion characterizes only the personality of the offender, and not the degree of public danger of the offense itself, although the repeated commission of an administrative offense is recognized by the legislator as a circumstance aggravating administrative responsibility (Article 4.3 of the Code of Administrative Offenses of the Russian Federation).
At the same time, the objective side itself often characterizes the degree of social danger of an offense.
It will hardly be possible to come to a unified decision if the criteria for a socially dangerous act are not clearly defined. It seems that only an act that has caused or is really capable of causing significant damage to social relations should be considered socially dangerous. Such acts in their totality in a certain historical situation violate the conditions for the existence of a given society. From this point of view, most administrative offenses cannot be considered socially dangerous.
So, the main difference between a crime and a misdemeanor is the public danger of the act. An additional feature is the type of wrongfulness. This formal sign is especially important when the offense is committed by a legal entity. After qualifying an act as a crime or an administrative offense, secondary differences also appear: the procedure for bringing to responsibility, the types and sizes of punishments, etc.
Public danger is a systemic sign of an offense. It arises from the interaction of simple, primary signs of the composition of the offense, named in the norms of the Criminal Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Labor Code of the Russian Federation: the form of guilt, the amount of damage, the method, time, place of the act, the signs of its subject, etc. Therefore, to qualify an act as a crime under the relevant article of the Criminal Code of the Russian Federation or as a misdemeanor under the article of the Code of Administrative Offenses of the Russian Federation, it is necessary to analyze the signs of specific compositions. Thus, administratively punishable theft differs from the corresponding crime in such signs as the value of the stolen, the method of theft (robbery and robbery, regardless of the harm caused, are a crime) committed by a group, repeatedly, by a person previously convicted two or more times for theft.
A number of criteria to determine whether hooligan actions are socially dangerous or not can be identified by comparing the texts of Art. 213 of the Criminal Code of the Russian Federation and 20.1 of the Code of Administrative Offenses of the Russian Federation. Hooligan actions form a crime if they grossly violate public order, express clear disrespect for society, accompanied by the use of violence against citizens or the threat of its use, as well as the destruction or damage to other people's property. Hooliganism is recognized as petty if it consists of swearing in public places, insulting harassment of citizens or other actions that defiantly violate public order and peace of mind of citizens.
Article 7.17 of the Code of Administrative Offenses of the Russian Federation establishes the administrative responsibility of citizens for the deliberate destruction or damage to someone else's property. But for such actions, criminal liability may also arise if they caused significant damage (part 1 of article 167 of the Criminal Code of the Russian Federation), committed in a hooligan way (article 213 of the Criminal Code of the Russian Federation), by arson (part 2 of article 167 of the Criminal Code of the Russian Federation).
Comparing administrative offenses with disciplinary ones, first of all, it should be said that both of them, as a rule, are not socially dangerous.
As for the formal sign - wrongfulness, there are serious features here. Everything related to administrative offenses: their composition, the system of sanctions and others, is regulated by administrative law.
The fight against disciplinary offenses is regulated by labor law, but the disciplinary responsibility of students, military personnel, employees of paramilitary services - administrative law, and prisoners - penitentiary law. At the same time, the components of disciplinary offenses are fixed in the most general form, not specified.
Significant differences exist between the subjects of these offenses. The subject of a disciplinary offense can only be a citizen - an employee of a certain organization. And this responsibility comes for violation of labor, official duties.
The leader, the subject of linear authority, is held liable for disciplinary offenses, and the representative of authority, the subject of functional authority, is held administratively liable in relation to persons who are not in official dependence on him.
2.1 Concept and types of environmental offense
An environmental offense is a guilty, unlawful act that violates the environmental legal order established by environmental protection, natural resource and other legislation and causes harm to the natural environment and human health, or to the environmental rights and interests of citizens and legal entities.
An environmental offense causes harm to the environment. When it comes to environmental harm, various terms are used in the legislation: harm, damage, lost profits, losses. For example, the Law “On the Protection of the Environment” refers to compensation for harm caused by an environmental offense. The Constitution of the Russian Federation establishes the right of everyone to compensation for damage caused to his health or property by an environmental offense (Article 42). The law "On the Protection of the Environment" provides for compensation for harm caused to the health of citizens by the adverse effects of the environment (Article 89).
There is no clear legislative concept of administrative environmental offense. Federal Law "On Environmental Protection" dated January 10, 2002 No. 7-FZ does not contain, in contrast to the previous basic environmental act, either a definition of an environmental offense or an environmental crime, or a list of offenses. But in the doctrine of environmental law, such a concept has been developed. An administrative environmental offense is understood as an unlawful, guilty (deliberate or negligent) action (or inaction) that infringes on the ecological order, the rights and freedoms of citizens in the field of environmental protection and use, the ownership of natural resources and the procedure for managing environmental management, which caused or could cause harm to the environment and for which the legislation provides for administrative liability.
In the science of environmental law, less attention is paid to the study of administrative environmental offenses than criminal liability for environmental crimes.
The Civil Code of the Russian Federation defines the concept of “losses” (Article 15) - these are expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (actual damage), as well as lost income, which this person would have received under normal conditions of civil circulation if his right had not been violated (lost profit).
Environmental damage is understood as any deterioration of the state of the environment that occurred as a result of violation of legal environmental requirements, and any derogation associated with it of a material and intangible benefit protected by law, including human life and health, property of individuals and legal entities. The components of environmental damage are damage, lost profits and moral damage. Environmental damage primarily manifests itself in the form of environmental pollution, damage, destruction, damage, depletion of natural resources, destruction of ecological systems. As a result, damage to the health and property of citizens and legal entities may be caused.
Environmental harm is often associated with the loss of benefits, i.e. non-receipt by the nature user of the income that he could receive under normal conditions. For example, a farmer could get a higher crop yield if the environment was not polluted.
According to the Federal Law of November 23, 1995 N 174-FZ "On Environmental Expertise", the objects of state environmental expertise of the federal level include feasibility studies and projects for construction, reconstruction, expansion, technical re-equipment, conservation and liquidation of organizations and other objects of economic activity Russian Federation and other projects, regardless of their estimated cost, departmental affiliation and forms of ownership, the implementation of which may have an impact on the environment within the territory of two or more constituent entities of the Russian Federation, including materials on the creation by citizens or legal entities of the Russian Federation with the participation of foreign citizens or foreign legal entities organizations, the volume of foreign investments in which exceeds 500 thousand US dollars. An exhaustive list of objects of state environmental expertise, carried out at the federal level and the level of subjects of the Federation, is defined in accordance with Art. 11, 12 of the Federal Law "On Ecological Expertise".
A positive conclusion of the state environmental review is one of the mandatory conditions for financing and implementation of the object of the state environmental review. A positive conclusion of the state environmental review shall have legal force for a period determined by the specially authorized state body in the field of environmental review, conducting a specific state environmental review. The legal consequence of the negative conclusion of the state environmental expertise is the prohibition of the implementation of the object of the state environmental expertise.
The Ministry of Natural Resources of the Russian Federation has the right to terminate, suspend or restrict economic and other activities carried out in violation of the conclusions of the state environmental review, as well as prohibit the commissioning of facilities, the construction or reconstruction of which was carried out in violation of these conclusions. The consideration of cases of administrative offenses is referred to the jurisdiction of officials of the Ministry of Natural Resources of Russia and its territorial bodies exercising state environmental control, specified in Part 2 of Art. 23.29 of the Code of Administrative Offenses.
According to Art. 1 of the Federal Law "On Environmental Protection", control in the field of environmental protection (environmental control) means a system of measures aimed at preventing, detecting and suppressing violations of legislation in the field of environmental protection, ensuring environmental protection, ensuring compliance by economic and other activities requirements, including standards and regulations in the field of environmental protection.
According to Art. 1 of the Federal Law "On Environmental Protection" environmental pollution refers to the entry into the environment of a substance and (or) energy, the properties, location or amount of which have a negative impact on the environment.
Information on the radiation situation, referred to as environmental information, within the meaning of the Federal Law of January 9, 1996 N 3-FZ "On radiation safety of the population" must contain information about the negative impact of ionizing radiation on the environment.
Environmental information also includes information on the state of the natural environment, its pollution and man-made emergencies that have had, are having, and may have a negative impact on the natural environment. In accordance with the Federal Law "On the Hydrometeorological Service", the specified information must be provided by legal entities, regardless of the organizational and legal form, and individuals who collect information about the state of the environment and its pollution. The procedure for providing Roshydromet with information on the state of the natural environment, its pollution and man-made emergencies that have had, are having, may have a negative impact on the environment, is determined by the Regulation approved by Decree of the Government of the Russian Federation of February 14, 2000 N 128.
According to the Regulations, this information is obtained on the territory of the Russian Federation, including internal sea waters, the territorial sea and the airspace above them, as well as within the exclusive economic zone, on the continental shelf of the Russian Federation, in the ionosphere and near-Earth space using various means of collecting information.
The fertile soil layers include, in particular, chernozem - soil rich in humus, mainly in the steppe and forest-steppe regions. In accordance with the Federal Law of July 16, 1998 N 101-FZ "On State Regulation of Ensuring the Fertility of Agricultural Lands", the fertility of agricultural land is understood as the ability of the soil to satisfy the needs of agricultural crops in nutrients, air, water, heat, biological and physical and chemical environment and ensure the harvest of agricultural crops. According to Art. 8 of this Federal Law, owners, owners, users, including tenants, of land plots are required to provide information on the use of agrochemicals and pesticides to the relevant executive authorities.
In accordance with Art. 13 of the Land Code of the Russian Federation, land users, land owners and tenants of land plots are obliged to take measures to reclaim disturbed lands, restore soil fertility, timely involve land in circulation, as well as to preserve soil fertility and use them when carrying out work related to land disturbance.
When carrying out construction works related to the disturbance of the soil layer and mining operations, the fertile soil layer is removed and used to improve unproductive lands.
With regard to land plots from agricultural land, the obligation of owners, land users, landowners, tenants to use this category of land in ways that should not harm the land as a natural object, including degradation, pollution, littering of land, poisoning, damage, destruction natural soil layer and other negative (harmful) impacts of economic activity, paragraph 1 of Art. 6 of the Federal Law of July 24, 2002 N 101-FZ "On the turnover of agricultural land".
Non-fulfillment, improper fulfillment by the owners of land plots from agricultural land, land users, landowners, tenants of these land plots of this obligation are qualified as improper use of the land plot in question and entail sanctions in the form of its forced withdrawal from the owner, forced termination of the lease, forced termination of the right to permanent (unlimited) use, the right of lifetime inheritable possession, the right of gratuitous fixed-term use of a land plot from agricultural land, applied in the manner prescribed by the Land Code of the Russian Federation, the Civil Code of the Russian Federation, Art. 6 of the Federal Law "On the turnover of agricultural land", regardless of bringing the violator to the measures of administrative responsibility established by the commented article.
Damage to the land is expressed in actions (inaction), leading to the loss of the natural properties of the fertile layer or their deterioration. This offense is expressed in non-compliance with the rules of land use established by the current legislation, the consequence of which is the infliction of the specified harm.
In accordance with paragraph 2, 3 of Art. 38 of the Federal Law "On Environmental Protection" it is prohibited to commission buildings, structures, structures and other objects without completing the land reclamation work provided for by the projects. Violation of this instruction by the heads and members of the commissions for the commissioning of these facilities is qualified in accordance with the commented article.
The obligations of owners of land plots from agricultural land, land users, landowners, tenants for the use of these land plots in accordance with the intended purpose of this category of land, in ways that exclude damage to land as a natural object, are established by paragraph 1 of Art. 6 of the Federal Law of July 24, 2002 N 101-FZ "On the turnover of agricultural land".
General requirements in the field of environmental protection in the placement, design, construction, reconstruction, commissioning, operation, conservation and liquidation of buildings, structures, structures and other objects are defined by Art. 34 of the Federal Law of January 10, 2002 N 7-FZ "On Environmental Protection", according to which the design, construction, reconstruction, commissioning, operation, conservation and liquidation of these facilities that have a direct or indirect negative impact on the environment, carried out in accordance with the requirements in the field of environmental protection.
At the same time, measures should be taken to protect the environment, restore the natural environment, rational use and reproduction of natural resources, and ensure environmental safety.
Violation of the requirements in the field of environmental protection entails the suspension of the placement, design, construction, reconstruction, commissioning, operation, conservation and liquidation of buildings, structures, structures and other objects according to the instructions of the executive authorities exercising state administration in the field of environmental protection .
Termination in full of placement, design, construction, reconstruction, commissioning, operation, conservation and liquidation of these facilities in case of violation of requirements in the field of environmental protection is carried out on the basis of a court decision and (or) arbitration court.
According to paragraph 3 of Art. 37 of the Federal Law "On Environmental Protection" in the construction and reconstruction of buildings, structures and other objects, measures are taken to restore the natural environment and land reclamation.
Requirements in the field of environmental protection during land reclamation, placement, design, construction, reconstruction, commissioning and operation of reclamation systems and separately located hydraulic structures are defined by Art. 43 of the Federal Law "On Environmental Protection".
Failure to fulfill or untimely fulfillment of obligations to bring lands into a condition suitable for use for their intended purpose, or to recultivate them after the completion of the development of mineral deposits, including common minerals, construction, reclamation, logging, prospecting and other works, including those carried out for on-farm or own needs, - shall entail the imposition of an administrative fine on citizens in the amount of from ten to fifteen times the minimum wage; on officials - from twenty to thirty times the minimum wage; for legal entities - from two hundred to three hundred times the minimum wage.
2.2 Subjects and objects of responsibility
All environmental offenses (as well as others) are divided into misdemeanors and crimes. The composition of an environmental offense (like any other) includes four elements: object, objective side, subjective side, subject.
The object is a set of public relations for the protection of the natural environment, the rational use of its resources and ensuring environmental safety.
The natural environment as a whole and its individual components (water, air, animals, for example) are the subject of an offense. This is one of the most important signs of an environmental offense.
It is he who allows you to determine in the orbit of which relations a natural resource is involved (what is its socio-economic essence) and to distinguish the offenses under consideration from others. Thus, fishing in a river in violation of the established rules constitutes illegal fishing, and the same actions committed in a fishery pond constitute theft of property, since in the latter case, fish is not a natural resource in a natural setting, but is a commodity. - material value. Air pollution in industrial premises (mines, workshops, etc.) cannot be considered as an environmental offense. Here, the act encroaches not on relations for the protection of a natural object, but on relations for the protection of health in the performance of labor functions.
In environmental offenses, their subject should always be considered in connection with the object. An isolated analysis of the subject does not make it possible to clarify the attitude to which the damage is caused, it generates errors and confusion in the legal assessment of the offense.
The sanctions of the above articles provide for fines in various sizes, restriction of freedom, correctional labor, arrest for various periods, imprisonment, deprivation of the right to hold certain positions or engage in certain activities.
The direct object of environmental crimes are public relations protected by criminal law on the use of certain types of natural resources and objects, ensuring law and order in the implementation of specific types of environmental impact, environmental safety of the population and territories, and maintaining the state and quality of the environment and its components.
The objective side is expressed through an act (action or inaction), various rules, criminal consequences and the cause of the connection between them.
The subjective side is both intentional and careless guilt.
In the event of an environmental offense, damage is caused to natural objects.
Thus, illegal felling of trees and shrubs (Article 8.28 of the Code of Administrative Offenses of the Russian Federation), clogging of forests with household waste and refuse (Article 8.31 of the Code of Administrative Offenses of the Russian Federation) are committed intentionally, and destruction or damage to the forest as a result of careless handling of fire (Article 8.32 of the Code of Administrative Offenses of the Russian Federation, Art. 261 of the Criminal Code) only through negligence.
A number of acts, such as, for example, pollution of the natural environment (Article 8.2 of the Code of Administrative Offenses of the Russian Federation, Articles 250, 251, 252 of the Criminal Code of the Russian Federation), violation of the requirements for the protection of subsoil and hydro-mineral resources (Article 8.9 of the Code of Administrative Offenses of the Russian Federation) can be committed intentionally, attitude towards the consequences are careless. The motives and goals of intentional environmental offenses can be different and, as a rule, they are not indicated as signs of an offense, but can be taken into account when sentencing as aggravating or mitigating circumstances.
The subjects of an environmental offense can be both individuals and legal entities, including business entities of various forms of ownership and subordination, as well as foreign organizations and citizens.
The problem of distinguishing between environmental offenses and crimes will be described in detail in the second section of this paper. Since (as will be shown below) the difference between a misdemeanor and an offense very often consists only in the scale of the damage caused, but not in the nature of the action as such, we will analyze those acts that are qualified by modern Russian legislation as environmental crimes. The analysis of misdemeanors in this work is omitted, since they are for the most part veiled forms of crimes.
So, environmental offenses are:
Pollution, clogging, depletion of surface or ground water, sources of drinking water or change in their natural properties; - violation of the rules for the release of pollutants into the atmosphere or violation of the operation of installations, structures and other objects, if this caused pollution or a change in the natural properties of the air;
Marine pollution;
Poisoning, pollution or other damage to land by harmful products of economic or other activities due to violation of the rules for handling fertilizers, plant growth stimulants, pesticides and other hazardous chemical and biological substances during their storage, use and transportation, resulting in harm to human health or the environment; - destruction or damage to forests (as well as plantations not included in the forest fund) as a result of careless handling of fire or other source of increased danger;
Illegal felling (without an appropriate permit), as well as damage to the extent of stopping the growth of trees, shrubs and lianas in the forests of the first group or in specially protected areas of forests of all groups, as well as trees, shrubs and lianas that are not included in the forest fund or prohibited for felling if they are committed in a significant amount;
Destruction of critical habitats for organisms listed in the Red Book of the Russian Federation, resulting in a sharp reduction in the number or death of populations of these organisms;
Illegal hunting, if this act is committed with causing major damage, using a mechanical vehicle or aircraft, explosives, gases or other methods of mass destruction of birds and animals, in relation to birds and animals, hunting of which is completely prohibited, on the territory of the reserve or the reserve or in the zone of ecological disaster or in the zone of emergency ecological situation; - illegal harvesting of fish, sea animals and other aquatic animals or commercial marine plants, if it caused major damage or was carried out using a self-propelled floating vehicle, electric current, chemical and explosive substances or in an ecological disaster zone, in spawning areas or on migration routes to him;
Felling, construction of bridges, dams, transportation of wood and other forest products from cutting areas, carrying out breaking and other works, as well as the operation of water intake facilities and pumping mechanisms in violation of the rules for the protection of fish stocks, if they caused the mass death of fish or other aquatic animals; - violation of the provisions of the Federal Law of the Russian Federation "On Environmental Protection" in the design of industrial, agricultural, scientific and other facilities by persons responsible for their observance, if this entailed significant changes in the radiation background, causing harm to human health, mass death of animals or other serious consequences, or other serious consequences; - production of prohibited types of hazardous wastes, transportation and storage, burial, use or other handling of radioactive, bacteriological, chemical substances and wastes in violation of established rules, if this created a threat of causing significant harm to human health or the environment; - illegal manufacture, processing, acquisition, storage, transportation or transfer for the purpose of sale, as well as illegal sale of potent or toxic substances or equipment for manufacturing and processing;
Violation of the rules for the protection and use of subsoil during the design, placement, construction, commissioning and operation of mining enterprises and underground structures not related to the extraction of minerals, as well as unauthorized development of mineral deposits, if these actions caused significant damage; - Violation of the regime of specially protected natural areas and natural objects (reserves, wildlife sanctuaries, natural monuments), resulting in significant damage;
Destruction and damage of monuments of cultural history, natural complexes and objects taken under state protection; - concealment or distortion of information about events, facts or phenomena endangering the life and health of people or the environment committed by a person obliged to provide the population with such information;
Illicit handling of radioactive materials, i.e. destruction of radioactive materials;
Theft or extortion of radioactive materials;
Violation of safety rules in the placement, design, construction and operation of nuclear facilities, if this could lead to the death of a person or radioactive contamination of the environment;
Violation of safety rules when handling microbiological or other biological agents or toxins, if this caused harm to human health, the spread of epidemics or epizootics, or other grave consequences;
Violation of veterinary rules, which negligently entailed the spread of epizootics.
3.1 Bodies exercising control over environmental activities
The system of measures aimed at preventing, detecting and suppressing violations of legislation in the field of environmental protection, ensuring compliance by subjects of economic and other activities with the requirements, including standards and regulatory documents, in the field of environmental protection, is control in the field of environmental protection (environmental control).
Environmental control can be not only state. In accordance with the legislation, the following types of environmental control are distinguished:
State environmental control;
Industrial environmental control;
Municipal environmental control;
Public environmental control.
There are also general environmental control, carried out by the highest bodies of state power and administration, and special - carried out by bodies authorized in the field of environmental protection.
Any of these types of control should be carried out in order to:
Ensuring the implementation of legislation in the field of environmental protection by the relevant bodies, legal entities and individuals;
Compliance with requirements, including standards and regulations, in the field of environmental protection;
Ensuring environmental safety.
To determine the objects of economic and other activities, natural objects subject to federal state environmental control, was adopted by the Government of the Russian Federation in the framework of the Decree of October 29, 2002 N 777 The list of officials of the federal executive body exercising federal state environmental control (federal state inspectors in areas of environmental protection).
The rights, duties and responsibilities of state inspectors in the field of environmental protection are defined in Art. 66 of the Federal Law "On Environmental Protection". Among them, the following can be distinguished: for the purpose of checking organizations, objects of economic and other activities, regardless of the form of ownership, including objects subject to state protection, defense facilities, civil defense facilities, get acquainted with documents and other materials necessary for the implementation of state environmental control ; check compliance with regulations, state standards and other regulatory documents in the field of environmental protection, the operation of treatment facilities and other neutralizing devices, controls, as well as the implementation of plans and measures for environmental protection; check compliance with the requirements, norms and rules in the field of environmental protection during the placement, construction, commissioning, operation and decommissioning of production and other facilities; suspend economic and other activities of legal entities and individuals in case of their violation of the legislation in the field of environmental protection; bring to administrative responsibility persons who have committed violations of legislation in the field of environmental protection; other powers determined by the legislation.
Environmental control is one of the means of environmental protection management. In the context of environmental degradation and changing socio-economic conditions of life, the Russian state is taking measures to strengthen state environmental control and its legal framework. The regulations approved by the Government of the Russian Federation on specially authorized state bodies in the field of environmental protection, on other ministries, state committees and departments provide for powers designed to ensure constant, systematic and universal environmental control.
Production environmental control, as a rule, is carried out by the environmental service of legal entities and entities. This type of control "includes verification of the implementation of plans for environmental protection, including those providing for the improvement of technologies and improvement of product quality, compliance with environmental rules, standards and norms of production activities, construction of environmental facilities, reclamation of disturbed lands, elimination of other negative consequences of production activities".
Municipal control in the field of environmental protection (municipal environmental control) is carried out on the territory of the municipality by local governments or bodies authorized by them in accordance with the legislation of the Russian Federation and in the manner established by regulatory legal acts of local governments.
According to the legislation of the Russian Federation, public environmental control can be carried out in various forms: a) public hearings and their specific form - parliamentary hearings; b) referenda; c) public ecological expertise; d) appeals to the media; e) sending complaints, statements, lawsuits to law enforcement agencies and the court.
Legislation on administrative offenses consists of the Code of Administrative Offenses of the Russian Federation, which entered into force on July 1, 2002, and the laws of the constituent entities of the Russian Federation on administrative offenses adopted in accordance with it. The Code of Administrative Offenses of the Russian Federation separately in the Special Part allocates Ch. 8 - administrative offenses in the field of environmental protection and nature management. "The generic object of environmental offenses are public relations for the protection of the environment, for the rational use of natural resources and ensuring environmental safety." In a special article 23.29 of the Code of Administrative Offenses of the Russian Federation defines the powers of the bodies exercising state environmental control to consider cases of administrative offenses; in Art. 23.21 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of bodies exercising state control over the use and protection of land; in Art. 23.22 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of bodies exercising state geological control, in Art. 23.23 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of bodies exercising state control over the use and protection of water bodies; in Art. 23.24 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of bodies authorized in the field of use, protection and protection of the forest fund; in Art. 23.25 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of the bodies for the protection of the territories of state natural reserves and national parks; in Art. 23.26 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of bodies authorized in the field of protection, control and regulation of the use of wildlife objects classified as hunting objects and their habitat; in Art. 23.27 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of fish protection bodies; in Art. 23.28 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of hydrometeorological and environmental monitoring bodies, in Art. 23.31 of the Code of Administrative Offenses of the Russian Federation defines the powers to consider cases of administrative offenses of the bodies of state mining and industrial supervision, and in Art. 28.3 determines officials authorized to draw up protocols on administrative offenses.
An administrative environmental offense is an unlawful, guilty action or inaction that infringes on the environmental law and order established in the Russian Federation, the health and environmental safety of the population, causing harm to the natural environment or containing a real threat of causing, for which administrative responsibility is provided.
The main features that serve as a distinction between the composition of an administrative offense. These are repetition (Article 260, paragraph 2), the presence of intent (Article 258), major damage, causing harm to human health, animals, agricultural production (Articles 248, 249, 252 of the Criminal Code of the Russian Federation, etc.).
The following types of administrative penalties are applied to offenders in the field of administrative proceedings: a fine, a warning, a paid seizure of the instrument for committing or the subject of an administrative offense, confiscation of the instrument for committing or the subject of an administrative offense; deprivation of a special right granted to an individual. The imposition of a fine does not release the perpetrators from the obligation to compensate for the harm caused and eliminate the consequences of an administrative offense.
Chapter 4. Problems of law enforcement practice
4.1 Problems of delimitation of the grounds for bringing to criminal and administrative liability in the field of environmental protection
The currently actively developing law enforcement practice on environmental offenses in the administrative and criminal sectors requires the specialization of individual departments of the internal affairs bodies in the environmental direction, and justifies the creation of an environmental prosecutor's office in many cities.
The high degree of public danger of environmental offenses is due to the fact that the object of their encroachment is the stability of the environment and natural resource potential, as well as the guaranteed art. 42 of the Constitution of the Russian Federation, the right of everyone to a favorable environment.
According to the Constitution of the Russian Federation, "everyone has the right to a favorable environment, reliable information about its condition and compensation for damage caused to his health or property by an environmental offense" (Article 42).
In accordance with Art. 1 of the Law of the Russian Federation of April 27, 1993 "On Appeal to the Court of Actions and Decisions Violating the Rights and Freedoms of Citizens" every citizen has the right to file a complaint with the court if he considers that illegal actions (decisions) of state bodies, local self-government bodies, institutions, enterprises and their associations, public associations or officials violated his rights and freedoms.
Article 41 of the former Law of the RSFSR dated December 19, 1991 "On the Protection of the Environment" establishes:
1) when placing enterprises, structures and other facilities, compliance with the requirements for the protection of the natural environment, rational use and reproduction of natural resources, accounting for the immediate and remote environmental, economic, demographic, and moral consequences of the activities of these facilities should be ensured with the priority of protecting human health and welfare population;
2) determination of construction sites for enterprises, structures and other objects is carried out in accordance with Art. 28 of the Land Code of the RSFSR and art. 11 of the Law of the RSFSR "On the sanitary and epidemiological well-being of the population" in the presence of a positive conclusion from the specially authorized state bodies of the Russian Federation in the field of environmental protection, sanitary and epidemiological surveillance and the decision of local self-government bodies. In necessary cases, when placing objects that affect the environmental interests of the population, a decision is made based on the results of a discussion or a referendum.
When considering criminal cases that have arisen in connection with the violation of environmental legislation, there are problems with distinguishing environmental crimes from environmental offenses, that is, guilty illegal acts that harm the environment and human health, for which administrative responsibility is established.
The problem of determining the grounds for distinguishing between criminal and administrative liability leads to the concealment of environmental crimes from accounting, since they are recorded in the form of administrative offenses.
In the event of difficulties in distinguishing between a criminally punishable act and an administrative offense, special attention should be paid to clarifying all the circumstances characterizing the composition of the environmental offense, the consequences of the unlawful act, the amount of harm and damage caused.
When considering cases involving violations of environmental legislation, it is of particular importance to establish a causal relationship between the acts committed and the harmful consequences that have occurred or the emergence of a threat of causing significant harm to the environment and human health. It is also necessary to find out whether the harmful consequences are caused by other factors, including natural ones, and whether they occurred regardless of the established violation, as well as whether illegal acts were committed in a state of emergency.
Thus, the distinction between criminally punishable hunting of aquatic animals and plants (Article 256 of the Criminal Code of the Russian Federation) and a similar administrative offense must be carried out on the grounds of major damage, the use of a self-propelled floating vehicle or explosives and chemicals, electric current or other methods of mass extermination, as well as according to the circumstances of the place where the act was committed (spawning places or migration routes to them, the territory of a nature reserve, wildlife sanctuary, zone of ecological disaster or zone of ecological emergency).
Distinguishing illegal hunting, punishable under criminal procedure (Article 258 of the Criminal Code of the Russian Federation), and administrative offense - violations of the rules of hunting should be carried out according to the qualifying signs of the crime: causing major damage, using a motor vehicle or aircraft, explosives, gases and other methods mass destruction of birds and animals, as well as if the act is committed in relation to birds and animals, hunting of which is completely prohibited, either on the territory of a nature reserve, sanctuary, or in an ecological disaster zone or in an ecological emergency zone.
When considering cases of illegal felling of trees and shrubs (Article 260 of the Criminal Code of the Russian Federation), it should be borne in mind that the distinction with an administrative offense, responsibility for which is provided for in Art. 63 of the Code of Administrative Offenses of the RSFSR, is carried out on the subject: corpus delicti, under Part 1 of Art. 260 of the Criminal Code of the Russian Federation, forms illegal felling of trees, shrubs and lianas in the forests of the first group, in specially protected areas of forests of all groups that are not included in the forest fund or prohibited for felling, if these acts are committed in a significant amount.
Considering cases related to violations of environmental legislation. Courts should determine the extent of the damage in each particular case. When determining the amount of compensation for environmental damage and calculating the amount of damage caused by an environmental offense and subject to compensation, one should be guided by both centrally approved calculation methods and established rates, as well as regional norms specifying the provisions of federal legislation.
By virtue of Art. 4.5 of the Code of Administrative Offenses of the Russian Federation for violation of the legislation of the Russian Federation on the protection of the natural environment, a person may be held administratively liable within one year from the date of the administrative offense.
According to the protocol, the environmental offense was committed in July 2005. Consequently, the one-year period established by law for bringing K. to administrative responsibility at the time of the consideration of the case by the city court had not expired.
Under such circumstances, the judicial board had no legal grounds for terminating the proceedings on an administrative offense.
4.2 Problems of monitoring the solution of issues of environmental and sanitary and epidemiological well-being of the population
Control over the solution of issues of environmental and sanitary-epidemiological well-being of the population is urgently needed, since natural, man-made and terrorist situations dictate the need to strengthen the entire range of measures on these problems.
The right to a healthy environment is a kind of core of the right to a favorable environment - its necessary and permanent, the most protected by law and the most successfully implemented part. The object of the right to a healthy environment is such a natural environment (its quality), the state of all components of which corresponds to the established sanitary and hygienic standards. The concept of a "healthy" environment is associated, in essence, only with the standards (maximum concentration limit, maximum concentration limit, footwear, etc.), and a favorable environment is not only healthy (unpolluted), but also resource-intensive, environmentally sustainable, aesthetically rich and diverse human environment. A comparable approach exists in the Federal Law "On the sanitary and epidemiological well-being of the population" (Article 1): favorable conditions for human life - the state of the environment, in which there is no harmful effect of its factors on humans (harmless conditions) and there are opportunities for the possibility of restoring disturbed functions of the human body; safe conditions for a person - a state of the environment in which there is no danger of the harmful effects of its factors on a person.
In addition, the Law of the Russian Federation "On Environmental Protection" does not establish any special rules for compensation for harm caused to the health and property of citizens as a result of violation of environmental legislation, and therefore, at present, this area of relations is directly regulated by civil law.
The lack of formalized eligibility criteria causes significant difficulties in law enforcement and human rights activities. The complexity of the implementation of the current constitutional norm (Article 42) is that in many situations it is possible to confirm or refute favorableness only by expert means, since stability, aesthetics, balance and its other attributes are purely evaluative concepts. In turn, the conduct of examinations of this kind is a big problem - due to the lack of proven and generally recognized methods that make it possible to obtain conclusions acceptable for legal practice. The traditional examinations appointed by the courts to identify the causal relationship of the resulting disease or other health disorder with the impact of a specific harmful factor resulting from an accident or other pollution of natural objects, if they are carried out, often lead to a dead end. A person may not get a specific disease from this particular factor, although his general health inevitably suffers, immunity decreases, existing chronic diseases become aggravated, and genetic disorders occur. And it turns out that with all the evidence of the environmental origin of harm, causation as a legally significant category is unprovable. All the more hopeless for the victims is the situation when forensic medical examinations are scheduled, but not carried out due to lack of funding, the necessary specialists, or other circumstances.
Of particular interest is the methodology for assessing the health of the environment. Carrying out alternative types of research, namely, bioindication, biotesting of other natural objects and ecosystems, may turn out to be even more preferable (quick, cheap, effective) than examinations carried out directly on people. For a long time, specialists from various branches of science have recognized that the universal criterion for the quality of the natural environment is the level of public health.
The shortcomings of this approach in law enforcement practice are well known. Only a small part of the harmful substances in use and circulation is regulated. In addition, the real consequences of non-compliance with regulations and standards may be very different than those that are determined by calculation. There are known difficulties in conducting environmental monitoring, without proper organization of which it is generally impossible to count on any reliability of the data substantiating the decisions made. Linking only to current regulations makes it difficult or impossible to make informed safe decisions in their absence. The so-called tentatively safe impact levels only emphasize the approximate nature of traditional methods for assessing the state of natural objects. Meanwhile, there is a rigid dependence of law in these (normative) methods. As a result, there are insurmountable difficulties in proving compensation for the harm caused to the environment and human health by pollution and other types of impacts - real, quite tangible harm, but qualified according to existing canons as “lawful”. Here lies one of the significant reasons for the low efficiency of the legal mechanism for protecting the environment.
The legislator does not associate the concept of environmentally harmful activity only with the framework of its illegality.
There remains a gap in environmental regulation in terms of establishing maximum permissible loads (MPL) on the environment in the formation of territorial and industrial complexes, the development of industry, agriculture, construction and urban reconstruction.
Thus, the most common problems of law enforcement practice in the field of environmental offenses are declarative and undeveloped norms. Lack of specific environmental quality indicators.
Conclusion
As a result of the analysis, the following conclusions can be drawn.
Violation of environmental legislation and non-compliance with the rules of environmental protection today is extremely dangerous, therefore, the legislation for offenses in this area provides for disciplinary, property, administrative and criminal liability, depending on guilt, environmental risk, the degree of environmental danger of the acts of persons.
The paper considers administrative responsibility for committing environmental offenses.
Environmental offenses, that is, guilty, illegal acts that violate environmental legislation and cause harm to the natural environment and human health.
A special chapter (Chapter 8) of the Code of Administrative Offenses of the Russian Federation is devoted to administrative offenses in the field of environmental protection and liability for their commission.
The components of environmental offenses are mainly concentrated in Chapter 8 "Administrative offenses in the field of environmental protection and nature management." Some of them are placed in chapter 7 "Administrative offenses in the field of property protection", some - in chapter 10 "Administrative offenses in agriculture, veterinary medicine and land reclamation". The analysis of the administrative legislation on liability for environmental offenses allows us to draw a number of conclusions. The number of articles has been changed and the number of elements of environmental offenses has been significantly expanded. The number of articles providing for liability for certain types of administrative offenses has been reduced by summarizing the features of the composition. Thus, the actual repetition of such special compositions as obstruction of the activities of officials of control and supervision bodies, failure to comply with their legal requirements and instructions has been eliminated. Now these norms are contained in Chapter 19 "Administrative offenses against the order of management" and include elements of disobedience to a lawful order or demand of an official of the body exercising state supervision (control); impeding the exercise by this official of his official duties (part 1 of article 19.4); non-fulfillment within the prescribed period of a legal order (decree, presentation) of the body (official) exercising state supervision (control) to eliminate violations of the law (part 1 of article 19.5); failure to take measures to eliminate the causes and conditions that contributed to the commission of an administrative offense by decision (representation) of the body (official) considering the case of an administrative offense (Article 19.6). Special elements of non-compliance with legal requirements and obstruction of the exercise of the powers of officials of the bodies for the protection of the continental shelf and the exclusive economic zone of the Russian Federation are provided only if they relate to stopping the vessel, its inspection, etc.
Although most of the elements of environmental offenses are formulated as formal, the constructions of material elements are also preserved.
The approach to the use of such constructions of compositions as general and special has changed: the new Code of Administrative Offenses of the Russian Federation includes a number of general compositions (Articles 8.1 - 8.5), which, among other things, also play the role of reserve norms. The signs of the objective side of many
traditional elements of environmental offenses. In some cases, the signs of the subject of an administrative offense are disclosed in detail. So, according to Art. 8.5 "Concealment or distortion of environmental information" the subject of the encroachment is complete and reliable information about the state of the environment and natural resources, about sources of pollution of the environment and natural resources or other harmful effects on the environment and natural resources, about the radiation situation and other objects of the environment.
The regulations that define the system of subjects for the application of administrative penalties have become more complicated, which reflects the complexity of the very construction of control and supervisory bodies. Agencies such as the Ministry of Agriculture of the Russian Federation and the Ministry of Natural Resources of the Russian Federation have the authority to apply administrative sanctions in a number of areas.
Thus, the current legal regulations are substantially streamlined in the environmental legislation. Special environmental and administrative legislation has been harmonized. Responsibility for types of behavior not previously punishable administratively has been introduced. The signs of many compositions, first of all, the subject and the objective side, have been clarified.
However, there are many shortcomings in the legislation in the field of environmental offenses. Therefore, frequently occurring
problems of law enforcement practice in the field of environmental offenses are declarative and undeveloped norms. Lack of specific indicators of the quality of a favorable environment.
The Federal Law “On Environmental Protection” does not adequately reflect the issues of liability for environmental offenses, and does not provide for the types of environmental offenses.
The application of administrative penalties to persons who have committed offenses in the field of the use and protection of natural resources is an effective means of preventing the commission of new offenses both by the person who committed the offense and by other persons. Reasonable application of administrative penalties helps to strengthen the rule of law, educate citizens in the spirit of compliance with the laws.
Under the current environmental protection conditions, any steps aimed at weakening supervision and control in the field of ecology should be viewed extremely negatively. Summarizing the experience of environmental institutions allows us to conclude that it is necessary to further improve their activities.
One of the ways of such an approach in the organization of environmental activities is the adoption of interdepartmental regulations covering related issues of environmental protection.
It is necessary to create new structures in all regions, the prototype of which can be the environmental police.
It should be noted that since January 2009, the department of environmental police began its work in the Novosibirsk region, the task of which is a systematic fight against environmental offenses.
The main functions of the new division of the city police department are the detection, suppression and prevention of environmental crimes and administrative violations in this area, the analysis of environmental crimes and offenses in the field of environmental protection on the territory of Novosibirsk.
Also, the environmental police will control the territories adjacent to the enterprises and organizations of the city - their sanitary condition, the facts of illegal seizure of land, etc.
A new department in the structure of the department for combating offenses in the consumer market and the enforcement of administrative legislation of the Internal Affairs Directorate for Novosibirsk was created by a decree of the mayor and the order of the head of the Central Internal Affairs Directorate for the Novosibirsk Region.
The effectiveness of the system for resolving disputes, identifying offenses and perpetrators, imposing and executing fair punishment for environmental offenses, remains a weak point in environmental protection activities, which also require improvement.
List of used sources and literature
Regulations
1. The Constitution of the Russian Federation, adopted by popular vote on December 12, 1993: as amended. dated December 30, 2008 // Rossiyskaya Gazeta.-1993.-December 25.-No. 13.
2. The Code of the Russian Federation on Administrative Offenses dated December 30, 2001 N 195-FZ (as amended on March 16, 2006) / / SZ RF. - 2002. - N 1 (part 1). - art. 1.
3. Federal Law of the Russian Federation "On Ecological Expertise" dated November 23, 1995 No. 174-FZ, as amended. dated April 15, 1998 // SZ RF. -1995. - No. 48.- Art. 4556.
4. Federal Law of the Russian Federation "On Environmental Protection" dated January 10, 2001 No. 7-FZ // SZ RF. -2002. - No. 2.- art. 133.
Scientific and educational literature
1. Administrative law of Russia: Textbook / B. N. Gabrichidze and others - M .: TK Velby, 2006. - 680 p.
2. Administrative Law: Textbook / Ed. L.L. Popova. - M., 2004. - 786s.
3. Administrative law of the Russian Federation / Ed. ed. N.Yu. Khamaneva.- M.: Jurist, 2005.-553 p.
4. Administrative Law: Textbook (second edition, revised and supplemented) / Ed. L.L. Popova.- M.:Jurist, 2005.- 678 p.
5. Bakhrakh D.N. Administrative Law: Textbook for High Schools.-M.: NORMA, 2005.-344 p.
6. Bogolyubov S.A. Environmental Law: Textbook for High Schools.-M.: NORMA-INFRA-M, 2002.- 667 p.
7. Brinchuk M.M. Environmental Law (Environmental Law).- M.: Yurist, 2004.-213p.
8. Dubovik O.L. Environmental Law: Textbook. - M.: TK Welby, Prospect, 2003.-258 p.
9. Makovik R.S. Land law. Environmental law: Abstract of training courses in definitions, diagrams, comments. - M .: TON-Professional education, 2003.-174 p.
10. Article-by-article commentary on the Code of Administrative Offenses of the Russian Federation extended, using materials from judicial practice: In two books. / Ed. A.B. Agapova.- M.: Publishing house "Statut", 2006.- 789 p.
11. Solovey Yu.P., Chernikov V.V. Commentary on the Code of the Russian Federation on Administrative Offenses: Introductory. - M.: Yurayt-M., 2002. - 324 p.
12. Timoshenko I.V. Administrative responsibility: Textbook. - M.: ICC "Mart"; Rostov n / a: Publishing Center "Mart", 2004.- 288 p.
13. Environmental Law: Course of lectures and workshop / Ed. Doctor of Law, Prof. Yu.E. Vinokurov. - M.: Publishing house "Exam", 2003.-164 p.
14. Environmental law in Russia. Collection of materials of scientific-practical conferences. Issue Four / Ed. A.K. Golichenkov. - M., 2003.-216s.
15. Bolshakov A.A. Bringing to administrative responsibility for an offense provided for by part 3 of article 16.23 of the Code of Administrative Offenses of the Russian Federation / / Modern law. - 2005. - No. 7.-C.35-39.
16. Blanks A., Shcheglova I. Administrative responsibility for offenses in the field of entrepreneurship. // Law.-2001.- No. 9.- P.82-83.
17. Bolshakov A.A. Bringing to administrative responsibility for an offense provided for by part 3 of article 16.23 of the Code of Administrative Offenses of the Russian Federation / / Modern law. - 2005. - No. 7.-C.35-39.
18. Blanks A., Shcheglova I. Administrative responsibility for offenses in the field of entrepreneurship. // Law.-2001.- No. 9.-S.82-83.
19. Dubovik O.L. Administrative responsibility for environmental offenses: a preliminary assessment of the reform of legislation / / Ecological law. -2002. - N 2. - P.32-34.
20. Zbanatsky O. About administrative contradictions//EZh-Jurist.- 2007.- No. 13.-p.34-39.
21. Lukyanov V. Administrative offenses infringing on public safety//Russian justice.- 2001.- No. 8.-p.17-24.
22. Pridannikova M.A. On some issues of interpretation and application of Article 15.26 of the Code of Administrative Offenses of the Russian Federation / / Lawyer. - 2005. - No. 12.-C.31-35.
23. Stukanov A. Danger of administrative offenses// Legality.- 2005.-№ 11.-p.9-13.
24. Ruchkin A.N. To the question of the concept and types of administrative offenses of a mercenary orientation / / Russian investigator. - 2005. - No. 3.-C.24-27.
25. Sharov A.V. On the main elements of administrative reform // Journal of Russian Law. - 2005. - No. 4.-C.18-21.
In view of the foregoing, an environmental offense can be defined as an unlawful, as a rule, guilty act (action or inaction) committed by a legally capable subject that causes or carries a real threat of causing environmental harm or violates the rights and legitimate interests of subjects of environmental law.
Taking into account the degree of public danger, environmental offenses are divided into misdemeanors and crimes. The former are less socially dangerous acts compared to the latter and are disciplinary, material, administrative and civil offenses. In accordance with the types of environmental offenses, disciplinary, material, administrative, criminal and civil liability arises.
In accordance with the general theory of law, an environmental offense in its structure consists of an object, a subject, an objective and a subjective side.
The object of an environmental offense are public relations about the environment as a whole and its individual components, regulated and protected by the rule of law. These relations in their content relate to the ownership of natural resources, nature management, environmental protection from harmful effects, protection of environmental rights and legitimate interests of man and citizen.
The commentary to the Law of the RSFSR "On the Protection of the Environment" refers to the environment as the object of an environmental offense 1 . Such an argument seems unconvincing. In the absence of requirements in environmental legislation regarding the regulation of certain social relations regarding a particular natural object, legal liability cannot be applied for their violation. Nature, or the environment, acts as the subject of an environmental offense.
Subjects of environmental offense there may be legal entities, officials and individuals, including foreign legal entities and citizens who have committed offenses related to the use of natural resources or environmental protection in the territory of Russia or a territory under its jurisdiction.
The composition of subjects varies depending on the type of environmental offense. So, the subjects of disciplinary responsibility are officials and employees of enterprises, criminal - officials and citizens, administrative - legal entities, officials and citizens.
In accordance with the current legislation, administrative and criminal liability of individuals for environmental offenses begins at the age of 16. In civil proceedings, citizens bear limited liability from the age of 14 to 18, full liability from the age of 18. From this age, the person becomes fully capable. Labor legislation does not establish age limits regarding the application of disciplinary and material liability of persons guilty of environmental offenses in the labor sphere.
For the objective side of an environmental offense characterized by the presence of three elements:
a) unlawful behavior;
b) causing or real threat of causing environmental harm, or violation of other legal rights and interests of subjects of environmental law;
c) a causal relationship between unlawful behavior and environmental damage or a real threat of causing such damage, or violation of other legal rights and interests of subjects of environmental law.
The subjective side of the environmental offense characterized by the guilt of the offender (with the exception of cases of responsibility of the owner of the source of increased danger). Guilt is understood as the mental attitude of the offender to his unlawful behavior, which can manifest itself in action or inaction. The law provides for two forms of guilt: intent (direct or indirect) and negligence. An environmental offense is intentional, in which the offender foresees the onset of socially harmful consequences of his behavior and wishes or deliberately allows them (for example, an entrepreneur dumps toxic waste from his production at the edge of a forest, that is, not in a place established for this). There are two types of negligence: arrogance and negligence. Arrogance occurs when a person who violates an environmental requirement foresees the socially harmful consequences of his activities, but frivolously counts on the possibility of avoiding them. Negligence is manifested in the fact that a person does not foresee the onset of harmful consequences, although he should have and could have foreseen them. The Civil Code of the Russian Federation introduces the concept of gross negligence. True, we are talking about the gross negligence of the victim himself, which contributed to the occurrence or increase of harm, which is taken into account when determining the amount of compensation for harm by the offender (Article 1083).
At the same time, in environmental practice, as already noted, there may be innocent (absolute) liability - for harm caused by a source of increased danger. Compensation for such damage is regulated by Art. 1079 of the Civil Code of the Russian Federation.
Some environmental offenses can be committed with any form of guilt (for example, offenses that result in air or water pollution), others - only with an intentional form of guilt (illegal hunting or fishing), and others - through negligence (for example, careless handling of fire in the forest and violation of fire safety rules in the forests).
Administrative liability for environmental offenses
This is the type of legal responsibility that most often takes place in the field of nature management and environmental protection. Administrative responsibility is expressed in the application by the competent authority of the state of administrative penalties for committing an environmental offense. Regulated by the Code of Administrative Offenses of the RSFSR and environmental legislation. So, in Art. 84 of the Law of the RSFSR "On the Protection of the Environment" not only formulates the composition of administrative offenses, but also determines the subjects of administrative responsibility, as well as the amount of administrative fines that can be imposed on offenders.
The issue of the concentration of legal regulation of administrative responsibility in the Code of Administrative Offenses of the RSFSR is discussed, as is done with respect to criminal liability in the Criminal Code. However, in relation to administrative responsibility, the existing practice seems to be preferable for a number of reasons. The first is related to the presence of significant gaps in environmental legislation. So far, many environmental requirements, both material and procedural, have not been formalized in the form of legal ones. Their normative consolidation in the actively developing legislation will require constant amendments and additions to the Code of Administrative Offenses of the RSFSR. The use of such a code would be difficult. The second reason concerns the convenience for the subjects of environmental law, to whom laws in the field of nature management and environmental protection are addressed. From the text of one act, they can learn about the environmental requirements that must be observed, and about the administrative responsibility that they will bear in case of their violation. If a decision is made to regulate administrative responsibility exclusively by the Code of Administrative Offenses, then, taking into account the gaps in environmental legislation and the prospects for its development, the elements of administrative offenses should obviously be formulated in a more general form - for example, violation of the requirements of environmental expertise, violation of the requirements of environmental certification , violation of the rules for handling production and consumption waste, etc.
In accordance with the Law "On the Protection of the Environment", the subjects of administrative responsibility are not only officials and citizens, but also legal entities, which is an innovation of this Law. Administrative liability is applied only if the offender is at fault.
Article 24 of the Code of Administrative Offenses of the RSFSR establishes the following administrative penalties: warning; fine; paid seizure of an item that was an instrument of committing or a direct object of an administrative offense; confiscation of an object that was an instrument of committing or a direct object of an administrative offense; deprivation of a special right granted to this citizen, for example, the right to hunt; correctional labor, administrative arrest.
According to its objective features, an administrative offense is outwardly similar to a crime. Therefore, the Code of Administrative Offenses, as one of the preconditions for imposing administrative responsibility, provides for the absence of elements of a crime in the committed violation. The main features that make it possible to distinguish between an environmental crime and an administrative offense are, as a rule, given in the Criminal Code of the Russian Federation. This is the repetition of an environmental offense, the presence of intent, etc.
The components of environmental offenses for which administrative liability may arise are defined in Art. 84 of the Law "On the Protection of the Environment", in Art. 125 ZK RSFSR, some other acts of legislation on the environment. In the Code of Administrative Offenses of the RSFSR, these types of offenses are contained in two chapters: administrative offenses infringing on socialist property (Chapter 6) and administrative offenses in the field of environmental protection, historical and cultural monuments (Chapter 7). In accordance with the Code, administrative responsibility is applied for:
- violation of the right of state ownership of subsoil (Article 46); on the waters (v. 47); to forests (Art. 48); on the animal world (Article 48 1);
- unauthorized mining of amber (Article 46 1);
- mismanagement of land (Article 50);
- damage to agricultural and other lands (art. 51);
- untimely return of temporarily occupied lands or failure to bring them into a condition suitable for their intended use (Article 52);
- unauthorized deviation from projects of on-farm land management (Article 53);
- destruction of landmarks (art. 54);
- violation of the requirements for the protection of subsoil and hydro-mineral resources (Article 55);
- violation of the rules and requirements for conducting work on the geological study of the subsoil (Article 56);
- illegal issuance of a license (permit), as well as an arbitrary change in the terms of an issued license (permit) to carry out activities on the continental shelf of the Russian Federation (Article 56 1);
- violation of existing standards (norms, rules) or license conditions governing permitted activities on the continental shelf of the Russian Federation (Article 56 2);
- violation of the rules for conducting resource or marine scientific research on the continental shelf of the Russian Federation (Article 56 3);
- violation of the rules for the protection of water resources (art. 57);
- violation of the rules for the disposal of waste and other materials on the continental shelf of the Russian Federation (Article 57 1);
- non-fulfillment of obligations to register operations with hazardous substances and mixtures in ship documents (Article 58);
- violation of water use rules (art. 59);
- damage to water facilities and devices, violation of the rules for their operation (Article 60);
- illegal use of lands of the state forest fund (art. 61);
- violation of the established procedure for the use of the logging fund, harvesting and removal of wood, harvesting resin (Article 62);
- illegal logging and damage to trees and shrubs, destruction and damage to forest plantations and young growth (Article 63);
- destruction or damage to undergrowth in forests (Article 64);
- implementation of forest use not in accordance with the goals or requirements provided for in the logging ticket (order) or forest ticket (Article 65);
- violation of the rules for the restoration and improvement of forests, the use of mature wood resources (Article 66);
- damage to hayfields and pastures on the lands of the state forest fund (Article 67);
- unauthorized haymaking and grazing of livestock, unauthorized collection of wild fruits, nuts, mushrooms, berries (Article 68);
- collection of wild-growing fruits, nuts and berries in violation of the established deadlines (Article 69);
- commissioning of production facilities without devices that prevent harmful effects on forests (Article 70);
- damage to the forest by sewage, chemicals, harmful emissions, waste and garbage (Article 71);
- clogging of forests with domestic waste and refuse (Article 72);
- destruction or damage to forest drainage ditches, drainage systems and roads on the lands of the state forest fund (Article 73);
- destruction of fauna useful for the forest (art. 75);
- violation of fire safety requirements in forests (art. 76);
- emission of pollutants into the atmosphere in excess of the standards or without permission and harmful physical impact on the atmospheric air (Article 77);
- commissioning of enterprises without compliance with the requirements for the protection of atmospheric air (Article 78);
- violation of the rules of operation, as well as non-use of equipment for cleaning emissions into the atmosphere (Article 79);
- release into operation of transport and other mobile vehicles with excess of standards for the content of pollutants in emissions (Article 80);
- operation of motor vehicles and other mobile vehicles in excess of the standards for the content of pollutants in emissions (Article 81);
- non-compliance with the requirements for the protection of atmospheric air during storage and incineration of industrial and domestic waste (Article 82);
- violation of the rules for transportation, storage and use of plant protection products and other preparations, which has caused or may cause air pollution (Article 83);
- non-compliance with the instructions of the bodies exercising control over the protection of atmospheric air (Article 84);
- violation of the rules for transportation, storage and use of plant protection products and other drugs that caused damage to the animal world (Article 84 1);
- violation of the rules for the protection of the habitat of animals, the rules for the creation of zoological collections and their trade, as well as unauthorized resettlement, acclimatization and crossing of animals (Article 84 2);
- violation of the procedure for the use of wildlife, as well as the illegal import of animals or plants recognized as detrimental to the conservation of animal species listed in the Red Book (Article 84 3);
- the destruction of rare and endangered animals or the commission of other actions that may lead to the death, reduction in the number or violation of the habitat of such animals (Article 84 4);
- non-compliance with the legal requirements of officials of the bodies for the protection of the continental shelf of the Russian Federation (Article 84 5);
- illegal transfer of mineral and living resources of the continental shelf of the Russian Federation (Art. 84-6);
- violation of the rules of hunting and fishing, as well as the rules for the implementation of other types of use of wildlife (Article 85);
- violation of whaling rules (art. 86).
The Code of Administrative Offenses of the RSFSR also defines the bodies and officials authorized to consider relevant cases (Chapter 15), and the jurisdiction of such cases (Chapter 16). Cases of environmental offenses are considered primarily by courts (judges), internal affairs bodies, state inspection bodies and other bodies (officials) authorized to do so by legislative acts of the Russian Federation.
So, according to Art. 202 of the Code of Administrative Offenses of the RSFSR, judges consider cases of environmental offenses under Art. 46 1 , 49, 49 1 , 56 1 -56 3 , 57 1 , 84 5 , 84 6 of the Code.
Bodies of state mining supervision in accordance with Art. 211 of the Code of Administrative Offenses of the RSFSR consider cases of administrative offenses under Art. 46, 55, 56 (for violations committed in the process of mining), Art. 56 2 .
Bodies and institutions exercising state sanitary supervision consider cases of administrative offenses under Art. 77-83 (violations of sanitary and hygienic rules and norms for the protection of atmospheric air) and Art. 84 (failure to comply with the instructions of the bodies exercising state sanitary supervision).
The issues of jurisdiction of cases of environmental offenses are resolved in the Code of Administrative Offenses insufficiently consistently, without full consideration of the place of specially authorized bodies in the state management of nature management and environmental protection. So, the State Committee for Ecology of the Russian Federation, which is entrusted with the implementation of state environmental control, in accordance with Art. 219 2 of the Code is entitled to consider only cases of administrative offenses under Art. 56 1 , 56 2 , 57 1 and 84 5 , i.e. related to the protection of mineral and living resources of the continental shelf of the Russian Federation.
One of the most common measures of administrative responsibility for environmental offenses is a fine. The specific amount of the fine imposed depends not only on the nature and type of the offense committed, the degree of guilt of the offender and the harm caused, but is also determined by the powers granted to the relevant body imposing the fine.
The decision to impose a fine (as well as any other decision on an administrative penalty) can be appealed to a court or arbitration court.
The Law “On Environmental Protection” emphasizes that bringing to responsibility in the form of a fine, regardless of its amount, does not relieve the guilty person from the obligation to compensate for the harm caused. This is explained by the fact that the fine, although it is of a material nature, is a measure of punishment, and not compensation for harm; the amount of the fine does not go to the victim to compensate for the harm, but is directed in accordance with the Law to special accounts of off-budget environmental funds.
43. The Criminal Code of the Russian Federation explicitly states that its task, along with the protection of human and civil rights and freedoms, property and public order, is to protect the environment.
The state of human health largely depends on the purity of water, air, the quality of the food that he eats, and, accordingly, the purity of the soil. Information on how many people die in Russia due to the impact of adverse environmental factors on health was not available. However, it is known that the life expectancy of men in Russia over the past 25 years has decreased from 71 years to 57 years, including due to the degradation of nature.
All offenses formulated in the current Criminal Code, in terms of their functions related to nature management and environmental protection, can be divided into three categories: special environmental offenses, related, additional.
Special environmental formulations formulated in a separate chapter "Environmental crimes" (Chapter 26). It is placed in the IX "Crimes against public safety and public order" and contains the following elements:
- violation of the rules of environmental protection in the course of work (Article 246);
- violation of the rules for handling environmentally hazardous substances and waste (Article 247);
- violation of safety rules when handling microbiological or other biological agents or toxins (Article 248);
- violation of veterinary rules and rules established for the control of plant diseases and pests (Article 249);
- water pollution (art. 250);
- air pollution (art. 251);
Pollution of the marine environment (art. 252);
- violation of the legislation of the Russian Federation on the continental shelf and on the exclusive economic zone of the Russian Federation (Article 253);
- damage to the land (art. 254);
- violation of the rules for the protection and use of subsoil (Article 255);
- illegal harvesting of aquatic animals and plants (art. 256);
- violation of the rules for the protection of fish stocks (art. 257);
- illegal hunting (art. 258);
- destruction of critical habitats for organisms listed in the Red Book of the Russian Federation (Article 259);
- illegal felling of trees and bushes (art. 260);
- destruction or damage to forests (art. 261);
- violation of the regime of specially protected natural areas and natural objects (Article 262).
Special environmental formulations include a number of formulations formulated in articles contained in other chapters of the Code:
- violation of safety rules at nuclear power facilities (Article 215);
- concealment of information about circumstances endangering human life or health (Article 237);
- cruelty to animals (art. 245);
- ecocide (art. 358).
These compositions in their content, of course, are ecological. Taking into account the object of environmental crimes, two types of crimes can be distinguished that infringe on:
a) environmental law and order in general. The object of such encroachments are public relations regarding the environment as an integrated object of legal regulation of use and protection. It is important to emphasize that the former Criminal Code of the RSFSR did not at all provide for offenses reflecting an encroachment on nature as a whole. According to the new Criminal Code of the Russian Federation, this type of crime includes the compositions formulated in Art. 247-249.259, 262, 215, 237, 358;
b) the procedure for the use and protection of individual natural resources. These are crimes under Art. 245, 250-258, 260-261 of the Criminal Code of the Russian Federation.
Related elements of crimes in the field of nature management and environmental protection, those that perform environmental functions only under certain objective circumstances should be considered: refusal to provide information to a citizen (Article 140); registration of illegal land transactions (Article 170); terrorism (art. 205); violation of safety rules in the conduct of mining, construction or other work (Article 216); violation of safety rules at explosive facilities (Article 217); violation of the rules for accounting, storage, transportation and use of explosive, flammable substances and pyrotechnic products (Article 218); violation of fire safety rules (art. 219); illegal handling of radioactive materials (art. 220); theft or extortion of radioactive materials (Article 221); illegal circulation of potent or poisonous substances for the purpose of sale (Article 234); violation of sanitary and epidemiological rules (Article 236); violation of safety rules during the construction, operation or repair of main pipelines (Article 269); planning, preparing, initiating or waging an aggressive war (art. 353); production or distribution of weapons of mass destruction (art. 355); use of prohibited means and methods of warfare (Article 356). These compositions acquire ecological significance only when, as a result of illegal actions, the rules of nature management are violated and harm is caused to the environment.
Some formulations, while not being ecological in nature, may also be used for environmental purposes under certain circumstances. TO additional a number of crimes against state power, the interests of the public service and service in local governments should be attributed: abuse of official powers (Article 285); abuse of office (Article 286); official forgery (art. 292); negligence (art. 293). The crimes envisaged by these articles can be applied directly to those officials who, by their actions or inaction, contributed to causing harm to the environment.
For the commission of environmental crimes, the Criminal Code of the Russian Federation provides for the following types of punishments:
- fine. Punishment in the form of a fine is provided for almost all environmental crimes. Its amount depends on the nature of the crime committed. The minimum fine is 200 times the minimum wage, the maximum is up to 700 times the minimum wage;
- deprivation of the right to hold certain positions or engage in certain activities. Such punishment is provided for many environmental crimes. Sometimes the period of validity of this punishment is also established;
- compulsory work. They consist in the performance by the convict in his free time of the main work or study of free socially useful work, the type of which is determined by local governments. This type of punishment is provided, in particular, for the destruction or damage of forests (up to 240 hours);
- corrective work. They are served at the place of work of the convicted person, while deductions are made from his earnings to the state in the amount established by the court verdict, ranging from 5 to 20%. Such punishment is established, for example, for violation of veterinary rules and rules established for the fight against diseases and pests of plants (up to 1 year); for air pollution (up to 2 years); for damage to the land (up to 2 years); for violation of the regime of specially protected natural areas and natural objects (up to 2 years);
- restriction of freedom. It consists in the maintenance of a convicted person who has reached the age of eighteen by the time the court passes the sentence, in a special institution without isolation from society under supervision. Such a punishment is provided for damage to the land (up to 3 years); destruction of critical habitats for organisms listed in the Red Book of the Russian Federation (up to 3 years);
- arrest. It consists in keeping the convict in conditions of strict isolation from society. Provided for water pollution (up to 3 months); for pollution of the marine environment (up to 4 months);
- imprisonment for a specified period. This type of punishment is provided for many crimes, including violation of environmental protection rules in the course of work (up to 5 years); for violation of the rules for handling environmentally hazardous substances and waste (from 3 to 8 years); for violation of safety rules when handling microbiological or other biological agents or toxins (from 2 to 5 years); for water pollution (up to 5 years); for air pollution (up to 3 years); for damage to the land (up to 3 years); for the destruction of critical habitats for organisms listed in the Red Book of the Russian Federation (up to 3 years); for destruction or damage to forests (up to 8 years). The most severe criminal liability is provided for ecocide, i.e. mass destruction of flora and fauna, poisoning of the atmosphere or water resources, as well as the commission of other actions that can cause an ecological catastrophe. This crime is punishable by imprisonment for a term of 12 to 20 years.
The subjective side of environmental crimes is expressed, as a rule, in the form of indirect intent, when a person is aware of the violation of the relevant rules, foresees the possibility of negative consequences for the state of the environment or human health and deliberately allows their occurrence or treats this indifferently. In a number of articles related mainly to environmental pollution, violation of the rules for handling hazardous substances and waste, guilt is expressed in the form of negligence.
Assessing the practice of applying criminal liability for environmental crimes, experts note its low efficiency. Thus, criminal cases on the most massive and dangerous violations - water and air pollution account for 0.96% of the total number of environmental crimes, land pollution - 0.75%. The number of such cases itself decreased in 1996 by 22% and 32.8%, respectively. The rules on liability for crimes and other offenses related to the illegal seizure of natural resources (poaching, illegal logging, illegal mining) are mainly applied.
Environmental offenses are among the most common in Russia. But at the same time, the latency of environmental crimes reaches 95-99%*.
___________________________
* Pleshakov A.M. Criminal-legal struggle against environmental crimes. Abstract doc. diss. M., 1994. S. 5.
In general, there is a sharp discrepancy between the number of persons prosecuted for environmental crimes and the number of persons convicted for them. Thus, in 1995, only 5,100 people (56%) were convicted in 8,066 criminal cases against 9,093 people for environmental crimes. The quality of the investigation in cases of environmental crimes needs to be substantially improved. Every 4-5th case is groundlessly terminated. When imposing punishment, courts often allow unreasonable indulgences to persons who have committed dangerous environmental crimes.
According to the Director of the Research Institute for the Problems of Strengthening Law and Order under the Prosecutor General’s Office of the Russian Federation, “a paradoxical situation has developed in Russia: with the growth of the environmental crisis, atrophy and imbalance of state control and management are observed, with an increase in the number of offenses and abuses, there is a line towards the attenuation of the judicial and legal response”
| Compensation for harm (damage) caused to natural resources and the environment |
An administrative environmental offense (misdemeanor) is an unlawful, guilty action (omission) of a citizen, official or legal entity that infringes on the constitutional right of every person to a favorable environment, including causing harm to the environment (containing a real threat of such infliction), for which administrative responsibility.
The current Code of Administrative Offenses pays much more attention to environmental issues than the previous one, highlighting in Art. 1.2 of the Code of Administrative Offenses, this activity as one of the tasks of the legislation on administrative offenses.
The subjects of the Russian Federation have the right to adopt their own laws on administrative offenses that do not conflict with the Code of Administrative Offenses. Such laws of the constituent entities of the Russian Federation should also create bodies (inspectorates, commissions, chambers, etc.) authorized to consider cases of administrative offenses in accordance with the legislation of the constituent entities of the Russian Federation. At the same time, the law of the subject of the Russian Federation can provide only two types of administrative penalties: a warning and a fine.
An example of such lawmaking by the subjects of the Russian Federation is the Code of the Volgograd Region dated June 11, 2008 No. 1693-OD "On Administrative Responsibility", which provides for administrative liability for damage and (or) destruction of green spaces in public areas in settlements (Article 6.1); destruction of rare and endangered species of animals or plants (art. 6.2); violation of the established regime of land use (art. 7.2); pollution of the territories of settlements associated with the operation and repair of vehicles (Article 8.10); violation of the procedure for handling household waste on the territory of settlements (Article 8.14), etc.
Among the federal bodies authorized to consider cases of administrative environmental offenses, the Code of Administrative Offenses distinguishes (except for judges) bodies exercising control and supervision functions in the field of ensuring the sanitary and epidemiological welfare of the population, bodies exercising state quarantine phytosanitary control, state supervision and control over safe the handling of pesticides and agrochemicals, the quality and safety of grain and products of its processing and state control over the use and protection of agricultural land; bodies exercising functions of control in the field of organization and functioning of specially protected natural areas of federal significance, bodies exercising state environmental supervision, and a number of others.
All components of environmental offenses for which administrative liability may arise are classified into four groups.
The first group includes structures that establish liability for violation of general (basic) environmental legal requirements that apply to all institutions of environmental law. These include violation of the legislation on environmental expertise (Article 8.4 of the Code of Administrative Offenses), concealment or distortion of environmental information (Article 8.5 of the Code of Administrative Offenses), etc.
The second group includes structures that establish responsibility for violating the rules for the protection of individual natural objects. These include damage to land (Article 8.6 of the Code of Administrative Offenses), violation of the rules for the protection of atmospheric air (Article 8.21 of the Code of Administrative Offenses), violation of the rules for the protection of water bodies (Article 8.13 of the Code of Administrative Offenses), violation of the rules of sanitary safety in forests (Article 8.31 of the Code of Administrative Offenses), etc. .d.
The third group includes an offense that establishes responsibility for violating the legal regime of territories with a special environmental and legal status, namely, violating the rules for the protection and use of natural resources in specially protected natural areas (Article 8.39 of the Code of Administrative Offenses). At the same time, it should be borne in mind that the Code of Administrative Offenses (unlike the Criminal Code) does not contain rules establishing responsibility for committing environmental offenses in an environmental disaster zone.
Finally, the fourth group includes structures that establish liability for violation of requirements in the field of environmental protection in the course of economic or other activities (in industry, transport, etc.). Among them are non-compliance with environmental and sanitary and epidemiological requirements when handling production and consumption waste or other hazardous substances (Article 8.2 of the Code of Administrative Offenses), violation of the rules for handling pesticides and agrochemicals (Article 8.3 of the Code of Administrative Offenses), putting into operation of motor vehicles with exceeding the standards for the content of pollutants in emissions or noise levels (Article 8.22 of the Code of Administrative Offenses), etc.
Consideration of all types of administrative penalties allows us to draw the following conclusions.
First, administrative penalties are relatively specific sanctions. When imposing punishment, the legislator provides environmental authorities (or the court), depending on the nature of the offense, the personality of the offender, the degree of guilt and other circumstances, a certain freedom in choosing the type and amount of punishment in accordance with Art. 4.1 of the Code of Administrative Offenses.
Secondly, a person who has committed an administratively punishable offense, in accordance with Art. 2.9 of the Code of Administrative Offenses may be exempted from administrative punishment due to its insignificance.
Thirdly, the terms for imposing administrative penalties are clearly defined. According to Art. 4.5 of the Code of Administrative Offenses, a decision on a case on administrative liability for violation of environmental protection legislation cannot be issued after two months from the date of its commission. In case of a continuing administrative environmental offense (and there are quite a few of them), the said period is calculated from the day the administrative offense was discovered.
Separately, it is necessary to dwell on the problem of delimitation of administrative and criminal liability in the field of environmental protection.
The structures of criminal and administrative environmental offenses have much in common, and there are no clear criteria for their difference from each other in the composition of administrative offenses.
They are in the criminal law, for example, in a number of compositions such a qualifying sign is indicated as causing harm to the health or death of a person due to atmospheric pollution (for example, Art. 251 of the Criminal Code). Other compositions mention "serious consequences" (Article 246 of the Criminal Code), "significant harm" (part 1 of Article 250 of the Criminal Code); "significant" and "large" damage (Articles 255 and 256 of the Criminal Code). In a note to Art. 260 of the Criminal Code, which establishes criminal liability for illegal logging of forest plantations, reveals the content of the concepts of significant and large-scale harm: "significant" is recognized damage caused to forest plantations or trees, shrubs and lianas not classified as forest plantations, calculated according to the rates approved by the Government of the Russian Federation, exceeding five thousand rubles, large size - 50 thousand rubles, especially large size - 150 thousand rubles. The specific content of many other evaluation criteria is not disclosed in the Criminal Code.
Their interpretation is given in the resolution of the Plenum of the Supreme Court of the Russian Federation dated 05.11.1998 No. 14 "On the practice of application by courts of legislation on liability for environmental offenses."
Their interpretation is given in the Decree of the Plenum of the Supreme Court of the Russian Federation dated October 18, 2012 No. 21 "On the application by courts of legislation on liability for violations in the field of environmental protection and nature management."
So, the Plenum explained that under "other grave consequences" in relation to Art. 246 of the Criminal Code of the Russian Federation (violation of the rules of environmental protection in the course of work) 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 including fish and other aquatic biological resources; destruction of conditions for their habitat and reproduction (loss of feeding grounds, spawning and wintering pits, disruption of migration routes, destruction of food supply); destruction of flora objects, which led to a significant reduction in the number (biomass) of these objects; degradation lands). At the same time, mass death (disease) is considered to be an excess of the average level of death (disease) of animals by three or more times.
With regard to Part 1 of Art. 247 of the Criminal Code of the Russian Federation (violation of the rules for handling environmentally hazardous substances and wastes), 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 contamination, a change in the radioactive background to values representing a danger to human health or life, etc.
Responsibility for illegal hunting, provided for in paragraph "a" part 1 of Art. 258 of the Criminal Code of the Russian Federation, occurs only in the presence of major damage. The damage caused by illegal hunting is classified as major, based not only on the number and value of the hunted, damaged and destroyed animals, but also taking into account other circumstances of the deed, in particular the environmental value, significance for a particular habitat, and the population size of these animals. Major damage is caused, for example, by shooting elk, red deer (maral, red deer), musk ox, brown and white-breasted (Himalayan) bear.
Consequently, in addition to an increased degree of public danger, the presence of such signs of composition as the specifics of the subject, place, method of the offense, its subject, form of guilt, etc. can serve as the basis for qualifying an offense as a crime.
It can be concluded that the elements of administrative and criminal offenses are in relation to each other in the ratio of general and special norms. The former contain abstract formulations, the latter, as it were, concretize them. Consequently, the administrative-legal norm will be applied only in the part that is not covered by the signs of an environmental crime similar in structure, i.e. goes beyond the limits, the boundaries of the signs established by the criminal law norm.
Introduction
Chapter 1. General characteristics of an administrative offense
1.1 The concept and types of administrative offenses.
1.2 Features and distinctive features of administrative offenses
Chapter 2. Environmental offenses: concept, subject, object
2.1 Concept and types of environmental offense
2.2 Subjects and objects of responsibility
Chapter 3. Responsibility for environmental offenses
3.1 Bodies exercising control over environmental activities
3.2 Liability for environmental offenses
Chapter 4 Problems of Law Enforcement Practice
4.1 Problems of delimitation of the grounds for bringing to criminal and administrative liability in the field of environmental protection
4.2 Problems of monitoring the solution of issues of environmental and sanitary and epidemiological well-being
population
Conclusion
List of sources used kov
Introduction
Environmental protection is one of the most urgent problems of our time. Scientific and technological progress and increased anthropogenic pressure on the natural environment inevitably lead to an aggravation of the ecological situation: natural resources are depleted, the natural environment is polluted, the natural connection between man and nature is lost, aesthetic values are lost, the physical and moral health of people worsens, economic and political struggle for commodity markets, living space.
As for the Russian Federation, it belongs to the countries of the world with the worst environmental situation. Pollution of the natural environment has reached unprecedented proportions. Only economic losses, not taking into account the harm to the environment and human health, according to experts, annually amount to an amount equal to half of the country's national income. The number one environmental problem in the Russian Federation is environmental pollution.
Every year the number of environmental offenses increases. They increasingly influence the state of public security, in a number of regions they act as a factor of political destabilization. Environmental offenses cause harm not only to the country's economy, but also undermine the very biological foundations of human existence.
All this dictates the need to increase the efforts of all state, including law enforcement agencies, in the protection and restoration of the natural human habitat.
The study of environmental legislation is important because offenses violate the interests that determine the law and are protected by it, and thereby harm public and personal interests, the established legal order. This is expressed in the negative consequences of the offense, which is a violation of the rule of law, the disorganization of social relations and at the same time (although not always) the derogation, destruction of any good, value, subjective right, restriction of their use, restriction of the freedom of behavior of other subjects.
The set of legislative acts existing in the Russian Federation and related to environmental protection is one of the main tools in the conservation and restoration of nature. The object of the research is social relations arising in the field of environmental protection.
The subject is administrative responsibility for environmental offenses. The purpose of this work is to briefly review and analyze the essence of the phenomenon of environmental offenses, as well as to review the types and degrees of liability provided for by law for environmental offenses.
To achieve this goal, it is necessary to solve the following tasks:
Give a definition and classification of the concept and types of environmental offenses;
Analyze the subject, object of the offense, the subjective and objective sides of the offense;
Determine the status of bodies exercising control over environmental activities;
To characterize the features of administrative responsibility for environmental offenses;
Determine the range of problems in the field of administrative responsibility for environmental offenses.
In connection with the stated research problem, as well as certain specifics of the tasks set, it should be noted that consideration of the legal foundations of administrative responsibility for environmental offenses involves the use of appropriate research methods that will allow for more efficient implementation of the available data. The basis of the research approach of this study was the synthesis of the deductive and inductive methods. The theoretical analysis of the current legislation is supplemented by an analysis of the empirical component, the practice of applying these norms in the law enforcement sphere. The formal-legal method was used as a special research method.
In the study of the topic, monographs and articles from periodicals of such authors as A.B. Vengerov, N.S. Malein, Yu.A. Denisov, N.A. Matuzov, A.V. Malko and others were used.
1.1 The concept and types of administrative offensesth
The legal concept of an administrative offense is enshrined in Part 1 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation. It "recognizes an unlawful, guilty action (inaction) of an individual or legal entity, for which administrative responsibility is established by this Code or the laws of the constituent entities of the Russian Federation on administrative offenses."
This definition is formal, since it contains only legal signs of an act.
Wrongfulness is the legal recognition of anti-social behavior that is harmful to citizens, society, and the state.
The antisocial nature of crimes is so great that they are recognized as socially dangerous. And the degree of harmfulness of most administrative offenses is low, they are not socially dangerous.
So, the first sign of an administrative offense is social harm.
The second sign is administrative wrongfulness. Such an act is directly prohibited by the articles of the Special Part of the Code of Administrative Offenses of the Russian Federation or the laws of the constituent entities of the Russian Federation on administrative offenses.
The third sign of an administrative offense is an act, that is, a conscious, volitional action or inaction of one or more people.
The fourth sign characterizes the subjects of the offense - this is an act committed by an individual or legal entity. It cannot be committed by an unorganized group of citizens, a complex organization that is not a legal entity (a party, a financial and industrial group, etc.), a branch and other structural subdivisions of a legal entity.
The fifth sign of an administrative offense is guilt, that is, it is a conscious, volitional act, committed intentionally or carelessly.
The sixth sign of an administrative offense is punishability. The possibility of applying administrative penalties is a common feature of administrative offenses. In most cases, if a misconduct is detected, the perpetrator is brought to administrative responsibility. But in some cases, the punishment cannot be applied, for example, the statute of limitations has expired, the norm has been canceled, etc.
Classification of administrative offenses can be carried out on various grounds.
First of all, it is necessary to take into account the existence of various sources of legal regulation. Administrative responsibility is established by the Code of Administrative Offenses of the Russian Federation and the laws of the constituent entities of the Russian Federation on administrative offenses (Article 1.1 of the Code of Administrative Offenses of the Russian Federation). A special part of the Code of Administrative Offenses establishes administrative liability on issues of federal significance, including for violation of the rules and norms provided for by federal laws and other regulatory legal acts of the Russian Federation (Article 1.3 of the Code of Administrative Offenses of the Russian Federation).
Violation of the law on meetings, rallies, demonstrations, marches and picketing (Article 5.38 of the Code of Administrative Offenses of the Russian Federation), driving a vehicle by a driver who does not have documents provided for by the Rules of the Road (Article 12.3 of the Code of Administrative Offenses of the Russian Federation) knowingly false call of specialized services (Article 19.13 of the Code of Administrative Offenses of the Russian Federation).
As for the relevant laws, we can mention the Law of February 14, 2003 No. 99-OZ “On Administrative Offenses in the Novosibirsk Region” (as amended on March 12, 2004). In chapter 4 of this law, article 4.2. establishes responsibility for committing at night (from 10 p.m. to 6 a.m. local time) any actions that produce noise and disturb the peace and quiet of citizens, including personal actions of citizens, mechanical means and technical devices, with the exception of emergency and rescue operations, as well as other urgent work necessary to ensure the safety of citizens or the functioning of life support facilities for the population.
Administrative offenses can be combined into different groups that have the same main object (subject) of encroachment. It is on this basis that the heads of the Special Part of the Code of Administrative Offenses of the Russian Federation were formed.
Thus, administrative offenses are distinguished that infringe on the rights of citizens (Chapter 5 of the Code of Administrative Offenses of the Russian Federation), infringe on health, sanitary and epidemiological well-being of the population and public morality (Chapter 6), in the field of property protection (Chapter 7), in the field of protection environment and nature management (ch. 8), in industry, construction and energy (ch. 9), in agriculture, veterinary medicine and land reclamation (ch. 10), in transport (ch. 11), in the field of road traffic ( ch. 12), in the field of communications and information (ch. 13), in the field of entrepreneurial activity (ch. 14), in the field of finance, taxes and fees, the securities market (ch. 15), in the field of customs (violations of customs rules) (Chapter 16), encroaching on the institutions of state power (Chapter 17), in the field of protecting the State Border of the Russian Federation and ensuring the regime of stay of foreign citizens or stateless persons on the territory of the Russian Federation (Chapter 18), against the order of management (Chapter 19), encroaching on public order and public safety (ch. 20), in the field of military registration (ch. 21).
The objective side of an environmental offense is characterized by the presence of three elements:
a) unlawful behavior;
b) causing or real threat of causing environmental harm or violation of other legal rights and interests of subjects of environmental law;
c) a causal relationship between unlawful behavior and environmental damage or a real threat of causing such damage or violation of other legal rights and interests of subjects of environmental law.
The subjects of an environmental offense may be legal entities, officials and individuals, including foreign legal entities and citizens who have committed offenses related to the use of natural resources or environmental protection on the territory of Russia or the territory under its jurisdiction.
The composition of subjects varies depending on the type of environmental offense. So, the subjects of disciplinary liability are officials and employees of enterprises, criminal - officials and citizens, administrative - legal entities, officials and citizens.
In accordance with the current legislation, administrative and criminal liability of individuals for environmental offenses begins at the age of 16. In civil proceedings, citizens bear limited liability from the age of 14 to 18, full liability from the age of 18. From this age, the person becomes fully capable. Labor legislation does not establish age limits regarding the application of disciplinary and material liability of persons guilty of environmental offenses in the labor sphere.
The subjective side of an environmental offense is characterized by the guilt of the offender (with the exception of cases of liability of the owner of a source of increased danger). Guilt is understood as the mental attitude of the offender to his unlawful behavior, which can manifest itself in action or inaction. The law provides for two forms of guilt: intent (direct or indirect) and negligence. An environmental offense is intentional, in which the offender foresees the onset of socially harmful consequences of his behavior and wishes or deliberately allows them (for example, an entrepreneur dumps toxic waste from his production at the edge of a forest, that is, not in a place established for this). There are two types of negligence: arrogance and negligence. Arrogance occurs when a person who violates an environmental requirement foresees the socially harmful consequences of his activities, but frivolously counts on the possibility of avoiding them. Negligence is manifested in the fact that a person does not foresee the onset of harmful consequences, although he should have and could have foreseen them. The Civil Code of the Russian Federation introduces the concept of gross negligence. True, we are talking about the gross negligence of the victim himself, which contributed to the occurrence or increase of harm, which is taken into account when determining the amount of compensation for harm by the offender (Article 1083).
At the same time, in environmental practice, as already noted, there may be innocent (absolute) liability - for harm caused by a source of increased danger. Compensation for such damage is regulated by Art. 1079 of the Civil Code of the Russian Federation.
Some environmental offenses can be committed with any form of guilt (for example, offenses that result in air or water pollution), others - only with an intentional form of guilt (illegal hunting or fishing), and others - through negligence (for example, careless handling of fire in the forest and violation of fire safety rules in the forests).
Disciplinary liability for environmental offenses
The grounds for disciplinary liability, the range of subjects and disciplinary sanctions are regulated by the Labor Code of the Russian Federation of December 30, 2001. It is expressed in the imposition by the employer on the guilty employee of a disciplinary sanction for failure to perform or improper performance of the labor duties assigned to him related to nature management and environmental protection. The offense may, for example, consist in the failure of the chief engineer of the enterprise to comply with the requirements of the job description regarding the operation of industrial equipment. Unlike criminal and administrative legislation, there is no more or less systematized list of environmental disciplinary offenses here.
The subjective side of a disciplinary environmental offense is, as a rule, negligence. In accordance with Article 192 of the Labor Code of the Russian Federation, the following disciplinary sanctions may be applied for committing a disciplinary offense: a remark; rebuke; dismissal. Federal laws, charters and regulations on discipline for certain categories of employees may also provide for other disciplinary sanctions.
The procedure for imposing and removing a disciplinary sanction is regulated by labor legislation. Before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. If the employee refuses to give the specified explanation, an appropriate act is drawn up. The employee's refusal to give an explanation is not an obstacle to the application of a disciplinary sanction. A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.
The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against receipt within three working days from the date of its issuance. A disciplinary sanction may be appealed by an employee to state labor inspectorates or bodies for the consideration of individual labor disputes.
If within a year from the date of application of a disciplinary sanction, a new disciplinary sanction is not applied to the employee, then he is considered not to have a disciplinary sanction. The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.
At the request of the representative body of employees, the head of the organization and his deputies may be brought to disciplinary responsibility. The employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization, his deputies of laws and other regulatory legal acts on labor, the terms of the collective agreement, agreement and report the results of the consideration to the representative body of employees. If the facts of violations are confirmed, the employer is obliged to apply a disciplinary sanction to the head of the organization, his deputies, up to and including dismissal.
The imposition of a disciplinary sanction in the presence of legal grounds does not exclude the possibility of applying more severe types of liability to the guilty employee - administrative, criminal, civil.
Administrative liability for environmental offenses
The Code of Administrative Offenses also defines the bodies and officials authorized to consider the relevant cases (Chapter 23). Thus, judges consider cases of administrative offenses provided for in Articles 7.5, 7.12, 7.15, 7.17, 7.24, 7.27, 7.28; bodies of internal affairs (militia) consider cases of administrative offenses provided for in Articles 8.22, 8.23; bodies of the state sanitary and epidemiological service of the Russian Federation consider cases of administrative offenses provided for in part 2 of article 7.2 (on the destruction and damage of signs of sanitary (mountain and sanitary) zones and districts, medical and recreational areas and resorts), part 2 of article 7.8, article 8.2 , Article 8.5 (in terms of information on the state of atmospheric air, sources of drinking water supply, as well as on the radiation situation), part 2 of Article 8.6 (on damage to land by production and consumption waste hazardous to human health and the environment); specially authorized state bodies in the field of nature management and environmental protection.
Bodies exercising state environmental control consider cases of administrative offenses provided for in part 2 of article 7.2 (on the destruction and damage of signs of specially protected natural areas, as well as signs installed by users of wildlife or specially authorized state bodies for the protection, control and regulation of the use objects of the animal world and their habitat, buildings and other structures belonging to the specified users and authorities), Articles 7.11 (use of objects of the animal world without a permit (license)), 8.1 (non-compliance with environmental requirements in the planning, feasibility study of projects, design, placement, construction, reconstruction, commissioning, operation of enterprises, structures or other facilities), 8.2 (non-compliance with environmental and sanitary and epidemiological requirements when handling industrial and consumer waste or other hazardous substances), 8.18 (violation of the rules for conducting resource or marine scientific research in internal sea waters, in the territorial sea, on the continental shelf and (or) in the exclusive economic zone of the Russian Federation) and other offenses.
The initiation and consideration of an administrative environmental offense, the execution of decisions in such cases is regulated by chapters 28, 29, 31, 32 of the Code of Administrative Offenses of the Russian Federation.
Bringing to administrative responsibility for environmental offenses does not release the guilty person from the obligation to compensate for the environmental or ecogenic damage caused. This is explained by the fact that the fine, although it is of a material nature, is a measure of punishment, and not compensation for harm; the amount of the fine does not go to the victim to compensate for the harm, but is directed in accordance with the law to the budget or to special accounts of environmental funds.
Criminal liability for environmental crimes
The Criminal Code of the Russian Federation explicitly states that its task, along with the protection of human and civil rights and freedoms, property and public order, is environmental protection.
The state of human health, which, in accordance with the Constitution of the Russian Federation, is the highest value, largely depends on the purity of water, air, the quality of the products that it feeds on, and, accordingly, on the purity of the soil. Meanwhile, the degradation of nature is one of the significant factors in reducing the life expectancy of men in Russia over the past 25 years from 71 to 58 years. Based on data on the levels of atmospheric air pollution in more than 100 cities of Russia, it was revealed that the largest part of the population (15.4 million people) is exposed to suspended solids. According to the results of calculations of the risk of death carried out by the Ministry of Health of Russia, only from air pollution with these substances, the number of deaths is 21,000, which is 7% of the annual deaths among residents of these cities. Who was held responsible for this? Beginning in 1961, the Criminal Code provided for liability for environmental crimes, in particular for air pollution.
Laws of a constituent entity of the Russian Federation, legal acts of a legislative (representative) body of state power of a constituent entity of the Russian Federation, legal acts of executive authorities of a constituent entity of the Russian Federation and legal acts of their officials that violate the rights and freedoms of man and citizen, the rights of public associations and local governments, may be appealed to judicial order.
As for the act of the highest official of the subject of the Russian Federation (the head of the highest executive body of state power of the subject), acts of the executive authorities of the subject of the Russian Federation, Art. 29 established the right of the President of Russia to suspend their operation in the event that this act conflicts with the Constitution of the Russian Federation, federal laws, international obligations of the Russian Federation or violates the rights and freedoms of man and citizen until this issue is resolved by the appropriate court.
During the period of validity of the decree of the President of Russia on the suspension of the relevant acts, the highest official of the subject of the Russian Federation (the head of the highest executive body of state power of the subject) and (or) the executive body of the subject of the Russian Federation cannot issue another act that has the same subject of regulation, with the exception of the act , canceling the act, the effect of which was suspended by the President of Russia, or making the necessary changes to it. At the same time, the highest official of a subject of the Russian Federation (the head of the highest executive body of state power of the subject) has the right to apply to the appropriate court to resolve the issue of compliance of the act issued by him or the executive body of the subject of the Russian Federation with the Constitution of the Russian Federation, federal laws, international obligations of the Russian Federation.
In the cases specified by the Law, the President of Russia issues a warning to the highest official of a subject of the Russian Federation (the head of the highest executive body of state power of the subject). These cases concern:
- publication by the highest official of a subject of the Russian Federation (head of the highest executive body of state power of a subject of the Russian Federation) of a normative legal act that contradicts the Constitution of the Russian Federation, federal laws, if such contradictions are established by the appropriate court, and the highest official of a subject of the Russian Federation (head of the highest executive body of state power of a subject of the Russian Federation) within two months from the date of entry into force of the court decision or within another period stipulated by the court decision, has not taken measures within its powers to enforce the court decision;
- evasion by the highest official of a subject of the Russian Federation (the head of the highest executive body of state power of a subject of the Russian Federation) within two months from the date of issuance of a decree of the President of Russia on the suspension of a regulatory legal act of the highest official of a subject of the Russian Federation (the head of the highest executive body of state power of a subject of the Russian Federation) or a regulatory legal act an act of an executive authority of a constituent entity of the Russian Federation from issuing a regulatory legal act providing for the abolition of a suspended regulatory legal act, or from amending the said act, if within this period the highest official of a constituent entity of the Russian Federation (the head of the highest executive body of state power of a constituent entity of the Russian Federation) has not applied to the appropriate court to resolve the dispute (art. 29.1).
The period during which the President of Russia issues a warning to the highest official of a constituent entity of the Russian Federation (the head of the highest executive body of state power of a constituent entity of the Russian Federation) cannot exceed six months from the date the court decision comes into force or from the date of the official publication of the decree of the President of Russia on the suspension of the normative legal act of the highest official of the subject of the Russian Federation (head of the highest executive body of state power of the subject of the Russian Federation) or a regulatory legal act of the executive body of the subject of the Russian Federation, if the highest official of the subject of the Russian Federation (head of the highest executive body of state power of the subject of the Russian Federation) did not apply to the appropriate court to resolve the dispute .
If within a month from the date of issuance by the President of Russia of a warning to the highest official of a constituent entity of the Russian Federation (the head of the highest executive body of state power of a constituent entity of the Russian Federation), the said person fails to take measures within the limits of his authority to eliminate the causes that served as the basis for issuing a warning to him, the President of Russia dismisses the highest official person of the subject of the Russian Federation (head of the highest executive body of state power of the subject of the Russian Federation) from the position.
The President of Russia, in accordance with the procedure established by the criminal procedural legislation of the Russian Federation, has the right, upon a reasoned proposal from the Prosecutor General of the Russian Federation, to temporarily suspend the highest official of a constituent entity of the Russian Federation (the head of the highest executive body of state power of a constituent entity of the Russian Federation) from performing duties in the event that the said person is charged with committing a serious or particularly serious crime.
The decision of the President of Russia to warn the highest official of a subject of the Russian Federation (the head of the highest executive body of state power of a subject of the Russian Federation) or to remove the highest official of a subject of the Russian Federation (the head of the highest executive body of state power of a subject of the Russian Federation) from office is taken in the form of a decree. Such a decree shall enter into force ten days after its official publication.
The highest official of a constituent entity of the Russian Federation (head of the highest executive body of state power of a constituent entity of the Russian Federation), whose powers were terminated by a decree of the President of Russia on the removal of the said person from office, has the right to appeal this decree to the Supreme Court of the Russian Federation within ten days from the date of official publication of the decree. The Supreme Court of the Russian Federation must consider the complaint and make a decision no later than ten days from the date of its filing.
According to Art. 70 of the Federal Law "On the General Principles of the Organization of Local Self-Government in the Russian Federation" local self-government bodies and officials of local self-government are responsible to the population of the municipality, the state, individuals and legal entities in accordance with the law. In particular, the responsibility of local self-government bodies and local self-government officials to the population comes as a result of the loss of public confidence. The procedure and conditions for such liability are determined by the charters of municipalities.
The responsibility of local self-government bodies and officials of local self-government to the state occurs in case they violate the Constitution of the Russian Federation, the constitution, the charter of the subject of the Russian Federation, federal laws, the laws of the subject of the Russian Federation, the charter of the municipality (Article 72).
Constitutional responsibility occurs in the event of the adoption of a normative legal act that is contrary to the Constitution of the Russian Federation, federal constitutional law, federal law, constitution, charter, law of a constituent entity of the Russian Federation, charter of a municipal formation (Article 73).
The representative body of local self-government, the head of the municipal formation, which has adopted (issued) a normative legal act, which is recognized by the court as contrary to the Constitution of the Russian Federation, federal constitutional law, federal law, constitution, charter, law of the constituent entity of the Russian Federation, charter of the municipal formation, are obliged to cancel within the time period established by the court decision this normative legal act or some of its provisions, as well as publish information about the court decision within ten days from the date the court decision enters into force.
If the representative body of local self-government, the head of the municipality has not repealed the normative legal act or its individual provisions, which are recognized by the court as contradicting the Constitution of the Russian Federation, federal constitutional law, federal law, constitution, charter, law of the subject of the Russian Federation, the charter of the municipality and at the same time entailed a violation (derogation) of the rights and freedoms of a person and a citizen recognized by a court or the occurrence of other harm, then the representative body of local self-government may be dissolved, the powers of the head of the municipality may be prematurely terminated by removing him from office.
If the representative body of local self-government, the head of the municipality has not canceled the normative legal act or its individual provisions in accordance with a court decision that has entered into force, then the legislative (representative) body of state power of the subject of the Russian Federation on its own initiative or at the request of the highest official of the subject The Russian Federation (the head of the highest executive body of state power of a subject of the Russian Federation) warns the representative body of local self-government in writing, and the highest official of the subject of the Russian Federation (the head of the highest executive body of state power of a subject of the Russian Federation) warns the head of the municipality in writing about the possibility of taking measures in accordance with this Federal Law.
If the representative body of local self-government, the head of the municipal formation, within a month from the date of issuance (announcement) of the written warning, did not take measures to enforce the court decision, then the representative body of local self-government may be dissolved, and the head of the municipal formation may be removed from office no later than six months. from the date of entry into force of the court decision, which is the basis for the dissolution of the representative body of local self-government, the dismissal of the head of the municipality from office.
The representative body of local self-government is dissolved by the law of a constituent entity of the Russian Federation or by a federal law, and the head of a municipal formation is dismissed from office by a decree (decree) of the highest official of a constituent entity of the Russian Federation (head of the highest executive body of state power of a constituent entity of the Russian Federation), with the exception of heads of municipal formations - capitals and administrative centers of constituent entities Russian Federation, or by decree of the President of Russia.
If, within three months from the date of entry into force of the court decision, the representative body of local self-government has not repealed a normative legal act or its individual provisions, and the legislative (representative) body of state power of a constituent entity of the Russian Federation has not taken the measures provided for by this Law, the President of Russia has the right submit to the State Duma a draft federal law on the dissolution of the representative body of local self-government.
If, within three months from the date of entry into force of the court decision, the head of the municipal formation has not repealed the normative legal act or its individual provisions, and the highest official of the constituent entity of the Russian Federation (the head of the highest executive body of state power of the constituent entity of the Russian Federation) has not taken the measures provided for in this article, then the President Russia has the right to dismiss the head of the municipality from office.
The dismissal of the head of a municipal formation from office and the simultaneous appointment of new elections (if he was elected by the population of the municipal formation) are carried out by a decree (decree) of the highest official of a constituent entity of the Russian Federation (head of the highest executive body of state power of a constituent entity of the Russian Federation) or by a decree of the President of Russia.
In the event that the head of a municipal formation is removed from office, the highest official of a constituent entity of the Russian Federation (the head of the highest executive body of state power of a constituent entity of the Russian Federation) or the President of Russia shall appoint an acting head of the municipal formation for the period until the newly elected head of the municipal formation takes office, unless another procedure is established bylaws of the municipality.
Proposals for the removal by the President of Russia of the head of a municipal formation from office may be made by the legislative (representative) body of state power of a subject of the Russian Federation, the highest official of a subject of the Russian Federation (the head of the highest executive body of state power of a subject of the Russian Federation), the Government of the Russian Federation, the Prosecutor General of the Russian Federation.
Citizens whose rights and legitimate interests have been violated in connection with the dissolution of the representative body of local self-government, the dismissal of the head of the municipality from office, have the right to appeal the dissolution of the representative body of local self-government, the removal of the head of the municipality from office to the appropriate court (Supreme Court of the Republic, regional, regional courts , the court of a city of federal significance, the court of an autonomous region, the court of an autonomous district) or the Supreme Court of the Russian Federation within ten days from the date of the official publication of the law, decree (decree).
The Supreme Court of the Republic, the regional, regional courts, the court of the city of federal significance, the court of the autonomous region, the court of the autonomous district, the Supreme Court of the Russian Federation must consider the complaint and make a decision no later than ten days from the date of its filing.
Civil liability for environmental damage
Compensation for environmental damage is regulated mainly by the Civil Code of the Russian Federation, the Code of Civil Procedure of the Russian Federation, the APC of the Russian Federation. A number of important provisions relating to this are also contained in environmental legislation, although it also refers to civil law.
The concept and types of environmental damage. Methods and principles of its compensation
Harm caused by violation of legal environmental requirements is called environmental or ecogenic harm in the doctrine of environmental law.
Environmental damage is understood as any deterioration of the state of the environment that occurred as a result of violation of legal environmental requirements. It primarily manifests itself in the form of environmental pollution, damage, destruction, damage, depletion of natural resources, destruction of ecological systems.
As a result of the named forms of nature degradation, damage to the health and property of citizens and legal entities can be caused. Such harm is called ecogenic. Harm to the health and property of citizens and legal entities by adverse environmental impacts is not always associated with a violation of the requirements of environmental legislation. It can be caused due to natural disasters - earthquakes, floods, etc.
We emphasize that environmental harm has other socially significant manifestations. They relate, in particular, to the demographic sphere: a decrease in life expectancy, a decrease in population growth.
Environmental damage is often associated with the loss of benefits, that is, the non-receipt by the user of natural resources of income that he could receive under normal conditions. For example, a farmer could get a higher crop yield if the environment was not polluted.
A new element of environmental damage for Russian environmental law is moral damage. Moral harm may consist in moral feelings due to the inability to continue an active social life, with the loss of a job, as well as physical pain associated with damage to health or in connection with a disease suffered as a result of moral suffering. Since nature satisfies the aesthetic (spiritual) needs of a person, the destruction, for example, of green spaces in cities can also be considered as a factor in causing moral harm and, accordingly, should serve as a basis for its compensation. Appropriate claims may be brought in the context of a violation of the right to a healthy environment.
The legislation provides for judicial and extrajudicial procedures for compensation for environmental damage. The corresponding duty may be performed by a court decision - general or arbitration. Out-of-court compensation is implemented in a number of ways, including voluntary compensation, through insurance against the risk of environmental harm, and through administrative procedures. The voluntary method of compensation for harm, rarely used in practice, has some advantages for its causer, which are still little realized in Russian society. Judicial procedure can create powerful anti-advertising for the enterprise and other tortfeasor, in which they cannot be interested in any way. When the situation concerning environmental damage is obvious, in particular when there is a tortfeasor and his victims, it is sometimes "more profitable" to compensate for the damage voluntarily.
The administrative procedure for compensation for environmental damage is applied, as a rule, in case of accidents and natural disasters that have environmental consequences, by taking measures for the socio-economic protection of the affected population. As other forms of compensation for such harm in the administrative procedure, one can consider the issuance of a temporary disability certificate, disability registration.
Compensation for damage to human health and property caused by adverse environmental impacts
The legislation establishes the principle of full compensation for harm caused to the health and property of citizens by the adverse effects of the environment. According to the Federal Law "On Environmental Protection", harm caused to the health and property of citizens by the negative impact of the environment as a result of economic and other activities of legal entities and individuals is subject to compensation in full. Determination of the volume and amount of compensation for harm caused to the health and property of citizens as a result of violation of legislation in the field of environmental protection is carried out in accordance with the law.
The previous Law "On the Protection of the Environment" indicated specific factors that should be taken into account when determining the amount of harm caused to the health of citizens: the degree of disability of the victim, the necessary costs for treatment and restoration of health, the costs of caring for the sick, other expenses, including lost professional opportunities, costs associated with the need to change the place of residence and lifestyle, profession, as well as losses associated with moral injuries, the inability to have children or the risk of having children with congenital pathology.
The usual practice for Russia to compensate for damage to the health of citizens as a result of environmental pollution (as a special case of damage to health in general) is to receive temporary disability benefits. In accordance with the Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens, the corresponding decision is made on the basis of a special examination. Examination of temporary disability is carried out by the attending physicians of the state, municipal and private healthcare systems. They single-handedly issue certificates of incapacity for work to citizens for up to 30 days, and for a longer period, certificates for incapacity for work are issued by a medical commission appointed by the head of the medical institution.
During the examination of temporary disability, the need and timing of the temporary or permanent transfer of the employee for health reasons to another job are determined, and a decision is made to send the citizen in the prescribed manner to the medical and social expert commission, including if the citizen has signs of disability.
If there are signs of disability, that is, a health disorder with a persistent disorder of body functions due to a disease or other reasons, leading to a limitation of life and causing the need for social protection, the appropriate decision is made based on the results of a medical and social examination. In accordance with the Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens, a medical and social examination is carried out by institutions of medical and social examination of the system of the Ministry of Social Protection of the Population of the Russian Federation upon a written application by a person with signs of disability, or his legal representative.
Along with the material support of the disabled, including cash payments for various reasons, the legislation provides for benefits for medical care, housing, benefits for working conditions, social and transport services, and sanatorium treatment.
The provision of social and economic protection measures, benefits and compensations to citizens affected by the adverse effects of the environment, received regulatory formalization after the accident at the Chernobyl nuclear power plant. Such measures, benefits and compensations are stipulated, in particular, by the Law "On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Plant Catastrophe" and other laws.
So, citizens who have received or suffered radiation sickness, other diseases, and disabled people as a result of the Chernobyl disaster, the Law guarantees:
- free medical care (inpatient and outpatient), free purchase of medicines (by prescription), free production and repair of dentures (with the exception of dentures made of precious metals), free annual provision of spa treatment or cash compensation in the amount of the average cost vouchers, etc.;
- payment of temporary disability benefits to working disabled people for up to four consecutive months or up to five months in a calendar year in the amount of 100% of actual earnings without limitation of two tariff rates (salaries);
- payment for the occupied living space (within the limits provided for by the current legislation), including for members of their families living with them, in the amount of 50% of the rent calculated at the rates established for workers and employees, as well as providing a discount of 50 % from the established fee for the use of telephone, radio and for their installation, for the use of heating, water supply, gas and electricity, and for those living in houses without central heating - a discount of 50% on the cost of fuel purchased within the limits, established for sale to the public, including transportation costs;
- free travel on all types of urban passenger transport (except taxis) and on public road transport (except taxis) in rural areas, as well as on suburban rail and water transport and on suburban buses, free travel with the right to purchase tickets in priority on the railway by road or on ships of transit and local lines of the river fleet once a year (round trip), and in areas that do not have a railway connection - by air, water or intercity road transport;
- other significant benefits.
The issues of insurance of the risk of causing harm to the health or property of citizens from environmental pollution are to some extent considered within the framework of environmental insurance in the section "Economic and legal mechanism for nature management and environmental protection". Environmental insurance is a guarantee that a citizen who has insured his health and property against the risk of harm due to unforeseen pollution or other adverse changes in the environment will receive appropriate compensation.
It can be expected that in Russia the issue of compulsory environmental insurance of citizens against the risk of adverse effects on human health from environmentally hazardous objects will be resolved. At present, compulsory free personal insurance against the risk of radiation exposure at the expense of owners or owners (users) of nuclear facilities is provided for by the Federal Law "On the Use of Atomic Energy".
In other cases, citizens can insure their lives, health and property on their own initiative, receiving appropriate compensation upon the occurrence of an insured event. Such a case is only emergency (sudden, unintentional) pollution of the environment, i.e. an accident at a technical facility with environmental consequences, or, according to experts, an environmental accident.
If a citizen who has suffered from the adverse effects of the environment claims full compensation for damage to health or property, he must file his claims in court in accordance with the procedure established by law. The victim himself, members of his family, a prosecutor authorized by the state administration body, a public organization (association), representing the interests of the victim, may file a lawsuit with the court. At the same time, the victim must substantiate his claims and provide evidence of harm to health or property, the existence of a causal relationship between the harm caused and environmental pollution, as well as a causal relationship between environmental pollution and the activities of polluters - enterprises, institutions, organizations and citizens.
If a person is recognized as disabled due to an environmentally determined disease, the source of the disease, as well as causal relationships, can be established through a medical and social examination. In other cases, all this must be documented by the victim himself, by submitting to the court a certificate of health, an act (certificate) of the state environmental control body on the fact of environmental pollution at a certain time and in a certain territory, and a certificate from the place of work, place of residence (local authority self-government, passport police department or house management), confirming that the victim was at that time in this place and, therefore, was exposed to harmful effects of the environment. In practice, proving a causal relationship in the area under consideration is an extremely difficult matter.
When preparing materials for filing a claim for compensation for harm caused to health by environmental pollution, the plaintiff substantiates the amount of damage and the amount of compensation. When considering a case, the court hears the arguments of the parties, checks the legality, correctness and validity of the calculations, as well as all other legal and factual circumstances of the case, and makes a decision on this basis.
The subjects of responsibility for causing harm to the health and property of citizens by environmental offenses can be both legal entities and citizens-entrepreneurs, as well as state bodies and their officials. According to Art. 53 of the Constitution of the Russian Federation, everyone has the right to compensation by the state for damage caused by illegal actions (or inaction) of state bodies and their officials. At the same time, the Civil Code of the Russian Federation establishes that harm caused to a citizen (as well as to a legal entity) as a result of illegal actions (inaction) of state bodies, local government bodies or officials of these bodies, including as a result of the issuance of an act that does not comply with the law or other legal act state body or local self-government body, is subject to compensation. It is reimbursed at the expense of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury of the municipality, respectively (Article 1069).
It is also important to know that along with compensation for damage to health and property caused by an environmental offense, a citizen has the right to compensation for losses associated with moral injuries or moral damage.
Liability for environmental damage caused by a source of increased danger
Compensation for harm caused by a source of increased danger to the environment is characterized by significant specifics. It manifests itself in the fact that responsibility for environmental damage caused by such sources comes without fault. In world practice, such responsibility is called strict or absolute. The objects of environmental damage are also specific.
Liability for harm caused by activities that create an increased danger to others is regulated by Art. 1079 of the Civil Code of the Russian Federation. The objects of increased danger of the Civil Code of the Russian Federation include means, mechanisms, high-voltage electrical energy, atomic energy, explosives, potent poisons, etc., as well as the implementation of construction and other related activities, etc.
By the court from liability in whole or in part, if the gross negligence of the victim himself contributed to the occurrence or increase of harm.
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