ST 262 of the Criminal Code of the Russian Federation.
Violation of the regime of nature reserves, wildlife sanctuaries, national parks, natural monuments and other specially protected state natural areas, resulting in significant damage, is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by deprivation the right to hold certain positions or engage in certain activities for a period of up to three years, or compulsory work for a period of up to four hundred eighty hours, or correctional labor for a period of up to two years.
Commentary on Article 262 of the Criminal Code of the Russian Federation
Commentary edited by Rarog A.I.
1. The subject of the crime is natural complexes taken under special protection: state natural reserves, including biosphere reserves; National parks; natural parks; state nature reserves; natural monuments; dendrological parks and botanical gardens; medical and recreational areas and resorts. According to the legislation, other categories of specially protected natural areas may be established (territories containing green zones, urban forests, city parks, monuments of landscape gardening art, protected coastlines, protected river systems, protected natural landscapes, biological stations, micro-reserves, etc. .).
State nature reserves are environmental, research and environmental educational institutions aimed at preserving and studying the natural course of natural processes and phenomena, the genetic fund of flora and fauna, individual species and communities of plants and animals, typical and unique ecological systems. State nature reserves are territories (water areas) that are of particular importance for the preservation or restoration of natural complexes or their components and maintaining the ecological balance. They can be complex (landscape), biological (botanical and zoological), paleontological, hydrological and geological. A national park is an area in which landscapes and unique natural objects are protected; it differs from a nature reserve mainly in the admission of visitors for recreation. Natural monuments are recognized as unique, irreplaceable, ecologically and aesthetically valuable natural complexes, as well as objects of natural and artificial origin.
2. The objective side is expressed in violation of the regime of specially protected natural areas, which resulted in significant damage.
The regime of nature reserves, wildlife sanctuaries, natural monuments, etc. means a set of rules for their use established by regulatory legal acts in accordance with the goals of creating specially protected natural objects. These requirements can be violated either through action or through inaction.
3. A mandatory sign of the objective side is the consequence in the form of causing significant damage to the natural environment.
The recognition of damage as significant depends on the specific circumstances of the case and is established taking into account: the category of specially protected territories and objects, their economic and other significance, the severity of the damage caused, the ability of a natural object to self-heal, etc.
There must be a causal connection between violation of the regime of nature reserves, wildlife sanctuaries, national parks, natural monuments and other specially protected natural areas and the occurrence of significant damage.
4. From the subjective side, a crime is characterized by an intentional or careless form of guilt.
5. The subject of the crime is a person who has reached the age of 16.
Corpus delicti
According to Article 262 of the Criminal Code of the Russian Federation, violations of the regime of specially protected natural territories and natural objects are considered socially dangerous acts , which fall into the category of minor crimes.
The subject of encroachment is the structure of natural objects.
The objective side is a violation of the regime of nature reserves, national parks and natural monuments and manifests itself both in the form of action (in the deliberate exploitation of a natural object) and inaction (in the deliberate disregard of the rules of the regime of natural parks).
Passive criminal behavior in most cases is typical for employees of national parks and other natural sites due to their negligent attitude towards their work duties.
The subjective side of the offense is expressed in two forms of guilt: intent and negligence. With direct intent, the citizen is aware of the illegality of the act he commits and the negativity of its consequences, but allows and even wants them to occur, that is, there is a sign of will here.
Indirect intent – when a person understands that his actions are contrary to the letter of the law, but does not want their negative result to occur, but nevertheless allows it.
Carelessness is usually criminal negligence or negligence . For example, when an employee of a national park has a bad attitude towards his official duties, thereby allowing such an offense.
By its design, the corpus delicti is material . It is considered completed at the moment of discovery, when such natural objects have suffered significant damage as a result of violation of the regime of natural objects protected by law.
Objects and subjects: who will be punished and for what?
The main objects of the offense include:
- environmental safety of society, which is ensured by the protection of the national park;
- regime of nature reserves, wildlife sanctuaries and other state-protected areas.
An additional object determines the eco-equilibrium of natural objects.
The subject of an offense is a mentally healthy citizen who has reached the age of 16 at the time of its commission. Often this is an official who neglected his powers.
Grounds for liability
A mandatory sign of an act is the occurrence of consequences in the form of causing significant damage . This is a very conditional and evaluative criterion, which is determined based on the amount of damage caused to a natural object, its environmental and economic significance, as well as the possibility of its further use.
It is also necessary to determine in what specific way the regime of protected natural objects was violated , and to establish a cause-and-effect relationship between this event and the damage caused. After all, they may not be related to each other, which means there will be no crime.
When there is no responsibility
If we analyze the judicial practice under Article 262 of the Criminal Code of the Russian Federation, then it is unlikely that it will be possible to completely avoid liability . This is possible if you have a good and experienced lawyer who can prove that the damage caused does not fall under the “significant” category.
Attention! In some cases, you can get by with punishment under Art. 8.39 Code of Administrative Offenses of the Russian Federation. Then the citizen will be sentenced to pay a fine (the amount varies for ordinary persons, enterprises and officials) with the confiscation of the instruments of the crime and illegally obtained plants or animals.
You can count on a mitigation of punishment in cases where a citizen provides positive characteristics from his place of work or if he has children, and for women - during pregnancy.
Commentary on Article 262 of the Criminal Code of the Russian Federation
Commentary edited by A.V. Brilliantova
The object of the crime in question is public relations for the protection of especially ecologically valuable natural areas and natural objects.
The list and legal regime of specially protected natural areas and natural objects are established by a system of laws and by-laws in the field of environmental protection, natural and cultural heritage, as well as others adopted by the Russian Federation, constituent entities of the Federation, local governments, ministries and departments. These, in particular, include: Federal Laws of March 14, 1995 N 33-FZ “On Specially Protected Natural Areas” (as amended on December 4, 2006), dated January 27, 1995 N 26-FZ “ On natural healing resources, medical and recreational areas and resorts” (as last amended), dated May 1, 1999 N 94-FZ “On the protection of Lake Baikal” (as amended on December 18, 2006), dated 7 May 2001 N 49-FZ “On the territories of traditional environmental management of small peoples of the North, Siberia and the Far East of the Russian Federation”; Forest Code of the Russian Federation (Article 59, 102 – 107); Land Code of the Russian Federation; regulatory acts of regional significance, for example, Decree of the Government of the Russian Federation of April 23, 1993 N 359 “On the creation of the Komandorsky State Nature Reserve in the Kamchatka Region”, Decree of the Government of the Russian Federation of July 15, 1992 N 488 “On establishing the boundaries and regime of sanitary protection districts the Talgi resort in the Republic of Dagestan, a mineral water deposit in the city of Volgograd and the Krasnoufimskoye mineral water deposit in the Sverdlovsk region.”
The legal regime of specially protected territories and natural environmental objects is specified in individual regulations about them, for example, in the Regulations on State Nature Reserves in the RSFSR, approved by Decree of the Government of the RSFSR of December 18, 1991 N 48 (as amended on April 23, 2003 .), Regulations on national natural parks of the Russian Federation, approved by Decree of the Government of the Russian Federation of August 10, 1993 N 769, Regulations on natural monuments of federal significance, approved by Order of the Ministry of Natural Resources of Russia dated January 25, 1993 N 15, General regulations on state natural reserves of nationwide (federal) significance in the Russian Federation, approved by Order of the Ministry of Natural Resources of Russia dated January 25, 1993 No. 14.
The subject of the crime is specially protected natural territories and natural objects: reserves, sanctuaries, national parks, natural monuments, etc.
Natural objects that have special environmental, scientific, historical, cultural, aesthetic, recreational, health and other valuable significance are under special protection. To protect such natural objects, a special legal regime is established, including the creation of specially protected natural areas. The procedure for the creation and functioning of such territories is regulated by the legislation on specially protected natural areas (Parts 1, 2, Article 58 of the Federal Law “On Environmental Protection”).
Taking into account the differences in the status and regime of specially protected areas, the following categories are established:
a) state natural reserves, including biosphere reserves;
b) national parks;
c) natural parks;
d) state natural reserves;
e) natural monuments;
f) dendrological parks and botanical gardens;
g) medical and recreational areas and resorts.
The Government of the Russian Federation, executive authorities of constituent entities of the Russian Federation and local governments can establish other categories of specially protected natural territories (territories containing monuments of landscape gardening art, protected coastlines, protected river systems, protected natural landscapes, biological stations, micro-reserves and etc.).
In the federal cities of Moscow and St. Petersburg, the powers of local government bodies of intra-city municipalities are determined by the laws of the constituent entities of the Russian Federation - cities of federal significance.
To qualify the act as a crime, it is necessary to establish that the object that was violated was taken under the special protection of the state, since in principle all elements of the natural environment are subject to protection: land, air, water, flora and fauna, subsoil, etc.
State natural reserves are declared to be specially protected natural complexes and objects (lands, waters, subsoil, flora and fauna) that are completely withdrawn from economic use and have environmental, scientific, environmental and educational significance as examples of the natural environment, typical or rare landscapes, places of conservation genetic fund of flora and fauna.
State nature reserves are also scientific institutions of federal significance aimed at preserving and studying the natural course of natural processes and phenomena, the genetic fund of flora and fauna, individual species and communities of plants and animals, typical and unique ecological systems.
The status of state natural biosphere reserves is given to state natural reserves that are part of the international system of biosphere reserves that carry out global environmental monitoring.
National parks are environmental, environmental, educational and research institutions of federal significance, the territories (water areas) of which include natural complexes and objects of special ecological, historical and aesthetic value, and which are intended for use in environmental, educational, scientific and cultural purposes and for regulated tourism.
A differentiated regime is established in the territories of national parks, taking into account their natural, historical, cultural and other features. Based on these features, various functional zones can be distinguished in the territories of national parks, including:
a) a reserve, within which any economic activity and recreational use of the territory is prohibited;
b) specially protected, within which conditions are provided for the preservation of natural complexes and objects, on the territory of which strictly regulated visits are allowed;
c) educational tourism, intended for organizing environmental education and familiarization with the sights of the national park;
d) recreational, intended for recreation, development of physical culture and sports;
e) protection of historical and cultural objects, within which conditions for their preservation are provided;
f) visitor services, intended for the placement of overnight accommodations, tent camps and other tourist service facilities, cultural, consumer and information services for visitors;
g) economic significance, within which economic activities necessary to ensure the functioning of the national park are carried out.
In the territories of national parks, any activity that can cause damage to natural complexes and objects of flora and fauna, cultural and historical sites and that contradicts the goals and objectives of the national park is prohibited.
Natural parks are environmental recreational institutions under the jurisdiction of the constituent entities of the Russian Federation, the territories (water areas) of which include natural complexes and objects of significant environmental and aesthetic value, and are intended for use for environmental, educational and recreational purposes.
In the territories of natural parks, various protection and use regimes are established depending on the ecological and recreational value of the natural areas. Based on this, environmental, recreational, agricultural and other functional zones can be identified in the territories of natural parks, including zones for the protection of historical and cultural complexes and objects.
In the territories of natural parks, activities may be prohibited or limited that entail a change in the historically developed natural landscape, a decrease or destruction of the ecological, aesthetic and recreational qualities of natural parks, or a violation of the regime for maintaining historical and cultural monuments.
State natural reserves are territories (water areas) that are of particular importance for the preservation or restoration of natural complexes or their components and maintaining the ecological balance.
In the territories of state natural reserves, any activity is permanently or temporarily prohibited or limited if it contradicts the goals of creating state natural reserves or causes harm to natural complexes and their components.
The tasks and features of the regime of a specific state natural reserve of federal significance are determined by the regulations on it, approved by the specially authorized state body of the Russian Federation in the field of environmental protection in agreement with the executive authorities of the relevant constituent entities of the Federation.
The objectives and features of the regime of a specific state natural reserve of regional significance are determined by the executive authorities of the constituent entities of the Russian Federation that made the decision to create it.
In the territories of state natural reserves, where indigenous peoples live, whose vital interests are related to the use of the natural resources of these territories, which are their historical lands, the traditional use of natural resources is allowed for the purpose of subsistence of these peoples. Dendrological parks and botanical gardens are environmental institutions whose tasks include creating special collections of plants in order to preserve the diversity and enrichment of the flora, as well as carrying out scientific, educational and educational activities.
The objectives, scientific profile, legal status, organizational structure, features of the regime of a particular dendrological park and botanical garden are determined in the regulations on them, approved by the relevant executive authorities of the Federation or a subject of the Federation that made decisions on the formation of these institutions. Territories (water areas) suitable for organizing treatment and prevention of diseases, as well as recreation for the population and possessing natural healing resources (mineral waters, therapeutic mud, brine of estuaries and lakes, therapeutic climate, beaches, parts of water areas and inland seas, other natural objects and conditions ), can be classified as medical and recreational areas.
Within the boundaries of medical and recreational areas, activities are prohibited (limited) that can lead to a deterioration in the quality and depletion of natural resources and objects with medicinal properties.
For medical and recreational areas where natural healing resources belong to the subsoil (mineral waters, therapeutic mud, etc.), mountain sanitary protection districts are established, in other cases - sanitary protection districts. The outer contour of the sanitary (mountain sanitary) protection district is the border of the medical and recreational area. The regime of such territories is determined by Federal Law No. 26-FZ of February 23, 1995 “On Natural Healing Resources, Medical and Health Resorts and Resorts”, as well as the Regulations on Sanitary and Mountain Sanitary Protection Districts of Health and Health Areas and Resorts of Federal Significance, approved by Decree of the Government of the Russian Federation of December 7, 1996 N 1425 (as amended on July 19, 2006).
Natural monuments are individual unique irreplaceable natural objects and natural complexes that have relict, scientific, historical, environmental and educational significance and require special protection by the state: areas of picturesque or historically valuable areas; reference areas of untouched nature; areas with a predominance of cultural landscape (ancient parks, alleys, canals, ancient mines, etc.); objects that served as the basis for the creation of outstanding works of literature and art, as well as those associated with the lives of famous people; places of growth and habitat of valuable, relict, small, rare, endangered species of plants and animals, including at the borders of their ranges; places where plants grow - indicators of the state and dynamic trends of the landscape; forest areas and forest areas that are especially valuable for their characteristics (species composition, productivity, genetic qualities, etc.), as well as examples of outstanding achievements of forestry science and practice; small dendrological parks; unique landforms and associated landscapes (mountains, groups of rocks, gorges, canyons, glacial cirques, caves, etc.); locations of rare or particularly valuable paleontological objects; thermal springs, etc.
Natural objects and complexes located on the territory of state natural reserves, protected areas of national natural parks, historical and cultural monuments, as well as those that are part of natural complexes that have already been declared natural monuments cannot be declared natural monuments.
From the objective side, the crime consists of violating the regime of specially protected natural areas and natural objects, resulting in significant damage. Violation of the protection regime can be expressed in illegal work, construction, traffic, destruction, destruction, damage or other damage to natural objects, illegal use of natural resources, pollution and other negative impacts, unauthorized visits, creating a disturbance factor for birds and animals (for example, noise, airplane flying below the established altitude), etc.
Violation of the regime of specially protected natural areas and natural objects entails criminal liability only if the act causes significant damage to the natural environment.
Consequences in the form of causing such damage are a mandatory feature of the composition. The corpus delicti is material. It is necessary to establish a causal relationship between the violation of the regime committed by the perpetrator and the consequences.
The issue of recognizing the damage as significant depends on the specific circumstances and is decided when considering the case, taking into account: the category of specially protected areas and objects; their economic and social (historical, cultural, scientific, medical, etc.) significance; the severity of the harm caused; the ability of a natural resource to self-regenerate; the cost of destroyed, damaged components of the natural environment, calculated according to the appropriate methods and rates (see what is stated in the analysis of crimes provided for in Articles 247, 248, 250, 254, 257, 261 of the Criminal Code), their quantity and other circumstances.
From the subjective side, a crime is characterized by intent or negligence.
In the case of an intentional form of guilt, the person is aware of the public danger of violating the regime of specially protected natural territories and natural objects, foresees the possibility or inevitability of causing significant damage to these territories and objects and desires its occurrence (direct intent) or is aware of the social danger of the specified act, foresees the possibility of its consequences, does not want to, but consciously allows these consequences or is indifferent to them (indirect intent). In the case of a careless form of guilt, the person does not foresee the possibility of causing significant damage to specially protected natural territories and natural objects, although with the necessary care and forethought he should and could have foreseen these consequences (criminal negligence), or foresees the possibility of such consequences of violating the regime of specially protected natural territories and natural objects, but without sufficient grounds for this, arrogantly hopes to prevent them (criminal frivolity).
The general subject of the crime is a sane person who has reached the age of 16 years.
If a violation of the regime of a specially protected area is reflected in the pollution of the waters of a reserve or reserve (Article 250 of the Criminal Code of the Russian Federation), illegal harvesting of aquatic animals and plants (Article 256 of the Criminal Code of the Russian Federation), illegal hunting (Article 258 of the Criminal Code of the Russian Federation) and other crimes where the reserves and reserves as a crime scene are provided as a mandatory sign of the crime, the offense should be classified under these articles.
However, if such acts entailed causing significant damage to a reserve or wildlife sanctuary as an integral ecosystem, the act constitutes a set of crimes provided for in Art. Art. 250, 256, 258, 262 of the Criminal Code of the Russian Federation, etc.
A similar classification of the act will be in the event that any other environmental crime involves a violation of the regime of specially protected areas and causing significant damage, but these territories are not provided as a mandatory feature in its composition, for example, in case of air pollution (Article 251 of the Criminal Code RF), destruction or damage to forests (Article 261 of the Criminal Code of the Russian Federation), destruction of critical habitats for organisms listed in the Red Book of the Russian Federation (Article 259 of the Criminal Code of the Russian Federation).
