Responsibility for offenses related to illegal extraction of aquatic biological resources: problems of terminology

Semenova Irina Vladimirovna Junior Researcher; Department of Environmental, Land and Agrarian Law; Institute of State and Law of the Russian Academy of Sciences 10 Znamenka str., Moscow, 119019, Russia ssem.irina@gmail.com Other publications by this author

The importance of aquatic biological resources (hereinafter referred to as UBR or aquatic biological resources) It is indisputable for the stable development of the state's economy and ensuring the food security of the population. Despite the fact that the Russian Federation has large reserves of aquatic biological resources, including in the Arctic ^[1] and Far Eastern seas, the problems of their conservation and sustainable use are extremely urgent.

The implementation of fishing is strictly regulated in order to preserve the species diversity of the WBR, ensure their replenishment and careful, wasteful treatment of these natural resources. Violation of established rules and requirements harms the environment, creates a danger of destruction of certain types of biological waste, and affects the economic stability of the state. Illegal activities in relation to aquatic biological resources in the Russian Federation are subject to both criminal and administrative liability. At the same time, there is no unity of terminology in the texts of various regulatory acts, for example, in the framework of the Code of Administrative Offences of the Russian Federation No. 195-FZ of December 30, 2001 (hereinafter referred to as the Administrative Code of the Russian Federation) (Federal Law of the Russian Federation. 2002. No. 1 (Part I). Art.1). when describing essentially the same illegal actions, the concepts of "using fishing without permission" (Part 1 of Article 7.11 of the Administrative Code of the Russian Federation), "violation of the rules and requirements governing fishing" (part 2 of Article 8.17 of the Administrative Code of the Russian Federation), "violation of the rules governing fishing" (Part 2 of Article 8.37 of the Administrative Code of the Russian Federation) are used.

Fishing and conservation offences, and in particular criminal encroachments, account for a significant proportion of all environmental offences. In particular, crime statistics in the area under review, according to a Review of the practice of courts applying the provisions of Chapter 26 of the Criminal Code of the Russian Federation on environmental crimes, approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022. (Bulletin of the Supreme Court of the Russian Federation. 2022. No. 11), indicates that for the period from January 2019 to December 2021, 39.4% of those convicted of environmental crimes were those found guilty of illegal mining 256 of the Criminal Code of the Russian Federation (Law of the Russian Federation, 1996, No. 25, Article 2954) (hereinafter referred to as the Criminal Code of the Russian Federation).

When characterizing offenses in the field of fishing and conservation of the Siberian Federal District, these illegal acts can be classified on various grounds, for example, by type of responsibility, by the object of the offense. In particular, a special group can be identified among them – offenses related to violations of the rules governing fishing when carrying out fishing operations.

According to Federal Law No. 166-FZ of December 20, 2004 "On Fisheries and Conservation of Aquatic Biological Resources" (Federal Law No. 52 (Part I), Article 5270) (hereinafter referred to as the Law on Fisheries), the concept of extraction (catch) VBR represents their removal from their habitat. At the same time, in accordance with Russian legislation, fishing is one of the types of activities that constitute the concept of "fishing", which also includes activities related to the acceptance, processing, transshipment, transportation, storage and unloading of fishing catches, and the production of fish products (Article 1 of the Law on Fisheries). From a legal point of view, in relation to the UBR, seizure is understood as the extraction of these biological resources from the aquatic environment in accordance with the procedure established by law, as a result of which their form of ownership changes. Aquatic biological resources, as a general rule, are federally owned (with the exception of wetlands living in ponds and flooded quarries, they may also be owned by subjects of the Russian Federation, municipal and private property), and legal entities and individual entrepreneurs have ownership rights to the wetlands they have extracted in accordance with the established procedure. Thus, after extracting biological resources from their habitat, subsequent actions with them are carried out in accordance with the civil legislation of the Russian Federation ^{[2, p. 10]}.

However, as noted above, the seizure of IBRS must be carried out in accordance with the procedure established by law, in particular, according to the norms contained in the Law on Fisheries. In case of non-compliance with the legislation governing the extraction of biological resources, liability is provided for offenders.

What is meant by illegal extraction of aquatic biological resources? When considering this issue, it is worth referring to the understanding of the word "illegal". In its literal interpretation, it means "not based on the law; violating the law" ^{[3, p. 622]}. Thus, illegal mining of biological resources should be understood as any violation of the procedure established by law for carrying out this activity. However, from a legal point of view, illegal extraction of aquatic biological resources is precisely an environmental crime, according to Article 256 of the Criminal Code of the Russian Federation. Because the Administrative Code of the Russian Federation does not contain an article with a corresponding name regarding illegal mining of the Arctic Ocean, unlike some other environmental offenses (for example, illegal logging of forest stands, art. 8.28 of the Administrative Code of the Russian Federation, art. 260 of the Criminal Code of the Russian Federation). Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 23, 2010 No. 26 "On certain issues of the application by Courts of legislation on criminal liability in the field of fisheries and conservation of aquatic biological resources (Part 2 of Articles 253, 256, 258.1 of the Criminal Code of the Russian Federation)" (hereinafter – Paragraphs of the Supreme Court No. 26) (Rossiyskaya gazeta a. 2010. No. 271.) defines illegal extraction of wetlands as actions aimed at removing them from their habitat and (or) seizing them in violation of environmental legislation, provided that such actions were committed by a person using a self-propelled floating vehicle, explosives or chemicals, electric current or other prohibited weapons and methods of mass destruction. extermination of wildfowl, in spawning grounds or on migration routes to them, in specially protected natural areas, in an ecological disaster zone or in an environmental emergency zone, or when such actions have caused major damage. Thus, according to the position of the Supreme Court of the Russian Federation, illegal extraction of aquatic biological resources is understood as a violation of legislation in the field of fisheries related to the extraction of biological resources, accompanied by circumstances stipulated in Part 1 of Article 256 of the Criminal Code of the Russian Federation. In this case, it may seem that other violations of the regulations governing the extraction of aquatic biological resources do not entail liability, since they do not meet the criteria for illegal extraction of biological resources. However, this impression is false and such acts are also subject to liability, but not criminal, but administrative – for violations of the rules and requirements governing fishing, which in essence (but not from the point of view of the letter of the law) is also illegal fishing. In this regard, for the purposes of this article, illegal mining of biological resources is understood to mean all environmental offenses committed in this area, and not just criminal encroachments.

The main types of legal liability for illegal mining of UBR are administrative and criminal liability. Compensation for damage caused can be regulated both by industry norms of environmental and natural resource legislation, and by general norms of civil law. Disciplinary liability may also be applied to employees of the fishing industry for certain acts in the field of fishing. In particular, as M.V. Ponomarev notes, civil liability in the field under consideration manifests itself in the obligation to compensate for damage to fisheries and their habitat, and disciplinary liability can be applied to employees of organizations and institutions in employment with them for violations of the requirements of legislation in the field of fisheries and expressed in the form of disciplinary action. in accordance with the provisions of the Labor Code of the Russian Federation (Federal Law of the Russian Federation, 2002, No. 1 (Part I), art. 3) ^{[3, p. 260]}.

Administrative responsibility for illegal mining of UBR occurs for the commission of offenses provided for by the provisions of the Administrative Code of the Russian Federation. In particular, Part 2 of art. 8.16, Part 2 of art. 8.17 and Part 2 of art. 8.37 of the Administrative Code of the Russian Federation. Despite the fact that there is no term "illegal extraction of aquatic biological resources" in the Administrative Code of the Russian Federation, the above-mentioned legal norms contain signs of an offense having a similar composition to criminal encroachments, but do not contain signs of criminally punishable acts, which is why they entail administrative responsibility rather than criminal. Articles 8.16, 8.17 and 8.37 of the Administrative Code of the Russian Federation relate to administrative offenses in the field of environmental protection, nature management and animal treatment. These regulations provide for liability for violations of the rules and requirements governing fishing (and, consequently, the implementation of fishing activities). At the same time, Part 2 of Article 8.16 of the Administrative Code of the Russian Federation provides for punishment for a specific violation – failure to fulfill duties to maintain a fishing log, as well as entering distorted information into it, and has a special subject – the captain of the vessel. The remaining administrative offenses in the field of mining are covered by Part 2 of art. 8.17 and Part 2 of art. 8.37 of the Administrative Code of the Russian Federation. At first glance, their difference lies in the fact that the disposition of Part 2 of Article 8.17 contains references to specific places of commission of an offense: reservoirs or their components, and the qualification of acts under Article 8.37 presupposes the residual principle of determining the place of commission of an offense ^{[5, p. 116]}. As noted in paragraph 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 11 "On certain issues of the application of the Special Part of the Code of Administrative Offences of the Russian Federation" (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2011. No. 5), Part 2 of art. 8.37 of the Administrative Code of the Russian Federation is subject to application in cases of violation of the rules of mining in such water bodies as rivers, streams, channels, lakes, ponds, flooded quarries, reservoirs, as well as on water bodies located within marine spaces that are not internal sea waters, territorial the sea, the continental shelf, the exclusive economic zone of the Russian Federation, and their legal regime is established by special international treaties of the Russian Federation (for example, in relation to the Caspian Sea).

Clarifications concerning the practice of applying the legal norms in question are also contained in Resolution No. 27 of the Plenum of the Supreme Court of the Russian Federation dated November 23, 2010 "On the Practice of Considering Cases of Administrative Offenses Related to Violations of Rules and Requirements governing Fishing" (hereinafter referred to as SCP No. 27) (Rossiyskaya Gazeta. 2010. № 271). It is worth noting that Part 2 of Article 8.17 reads as: "Violation of the rules and requirements governing fishing ...", and Part 2 of Article 8.37 has the following wording: "Violation of the rules governing fishing, except for the cases provided for in part 2 of Article 8.17." However, it is not entirely clear what the legislator means by "requirements" and how it distinguishes them from the "rules", since paragraph 6 of the SC No. 27 defines: "failure by persons engaged in fishing to comply with one or more of the stipulated requirements entails administrative liability on the basis of part 2 of Article 8.16, part 2 of Article 8.17, part 2 of Article 8.37 of the Administrative Code of the Russian Federation. Paragraph 4 of the above-mentioned paragraph of the RF PP No. 27 specifies which acts are violations of fishing rules, in particular: fishing without a permit, if it is necessary to carry out this activity; violation of the conditions prescribed in the mining permit; non-compliance with established prohibitions, etc. Thus, the Supreme Court of the Russian Federation essentially identifies the concepts of "rules" and "requirements", and therefore, in our opinion, the legislator should specify what constitutes a violation of the requirements governing fishing and how such violations differ from violations of the rules, or exclude this wording from Part 2 of art. 8.17 of the Administrative Code of the Russian Federation.

When considering administrative offenses related to illegal mining of mineral resources, it is also worth paying attention to Part 1 of Article 7.11 of the Administrative Code of the Russian Federation, which is located in Chapter 7 of the Administrative Code of the Russian Federation – "Administrative offenses in the field of property protection." This provision provides for liability for the offender if he carries out the extraction of biological resources without a permit (in cases where its presence is mandatory) or in violation of the conditions stipulated by it. At the same time, administrative liability under Part 1 of Article 7.11 occurs in cases where the illegal act is not covered by Part 2 of Article 8.17 of the Administrative Code of the Russian Federation. Due to the fact that this act is an administrative offense in the field of property protection, it does not relate to environmental offenses. However, according to the Law on Fisheries, as a general rule, the UBR is state-owned. As O.L. Dubovik notes, the objective side of using aquatic biological resources without a permit is, in fact, illegal fishing – fishing in violation of the permit conditions (in restricted areas, in violation of the established weight and size of the extracted resources, etc.) ^{[6, p. 203]}. Thus, it is not entirely clear how the considered provisions of Part 1 of art. 7.11 of the Administrative Code of the Russian Federation and Part 2 of art. 8.17, Part 2 of Art. 8.37 of the Administrative Code of the Russian Federation differ in terms of using CBR without permission or if it exists, but in violation of the conditions provided for by it.

For example, in accordance with the decision of the Twelfth Arbitration Court of Appeal dated 06/15/2015 in case no. A06-12072/2014, the Fishing Artel "Yug" appealed to the Arbitration Court with a statement declaring illegal the decision of the Border Department of the Federal Security Service of Russia for the Republic of Kalmykia and the Astrakhan Region 2349/1233-14 dated 12.12.2014 on bringing to administrative responsibility under Part 1 of art. 7.11 of the Administrative Code of the Russian Federation in the form of a fine of 10,000 rubles. As follows from the case file and established during the consideration of the dispute, in the permit for the extraction of aquatic biological resources 302014 02 2125 dated 03/01/2014, the state registration number AN-1879 is indicated in the column "Name of the vessel, tail number", in the column "Type of vessel, port of registry, call sign" – Boat, Astrakhan. At the same time, during the control and verification measures for the state control of fishing, it was established that a legal entity, RA Yug, acting on the basis of an employment contract dated 08/09/2013 concluded between RA Yug and A.A. Telpekov, extracted aquatic biological resources on a small vessel Motolodka, state registration number R 67-59AF, not specified in the permit for extraction of aquatic biological resources. However, the act described in the example also falls under the qualification of Part 2 of art. 8.17 or Part 2 of art. 8.37, because fishing in violation of the conditions prescribed in the permit is qualified under these articles, according to paragraph 6 of Paragraph 27 of the Supreme Court.

As noted, criminal encroachments related to the illegal acquisition of natural resources are becoming more dangerous in modern realities, and increasingly have all the signs of organized illegal activity ^{[7, p. 384]}. 256 of the Criminal Code of the Russian Federation are among the most common environmental crimes in the Russian Federation ^{[8, p. 342],[9, p. 109],[10, p. 95]}.

As mentioned earlier, the concept of "illegal extraction of aquatic biological resources" is used at the legislative level in the Criminal Code of the Russian Federation, contained in Articles 256 and 258.1 of the Criminal Code of the Russian Federation. Criminal liability for violations of the law in the course of mining is also provided for in Part 2 of Article 253 of the Criminal Code of the Russian Federation, in the case of mining on the continental shelf of the Russian Federation or the exclusive economic zone of the Russian Federation without appropriate permission. There is also a certain similarity with the norms of the Administrative Code of the Russian Federation, when the qualification of illegal acts under various articles depends on the place where the offense was committed. This is explained by the specifics of the legal (and in certain cases, international-legal) status of the territories included in the offense.

Article 256 of the Criminal Code of the Russian Federation consists of three parts, while part three provides for a particularly qualified composition of this crime ^{[8, p. 345]}. In our opinion, the expediency of allocating a qualifying feature within the framework of Part 2 of Article 256 of the Criminal Code of the Russian Federation is questionable, since it provides for liability for "illegal extraction of seals, sea beavers and other marine mammals on the high seas or in restricted areas" and contains an identical sanction with Part 1 of Article 256 of the Criminal Code. When considering this rule of law, questions arise regarding the correctness of the formulations used in relation to these types of marine life, in particular, "seals", "sea beavers", and it is also unclear what is meant by "other marine mammals". Probably, in the first concept, the legislator means "seals", the word "marine" is omitted in the norm in question, and therefore the law enforcement officer may have problems qualifying criminal offenses. At the same time, it is not entirely clear for what reason exactly these genera and species of marine mammals (since in the family of long-eared seals there are 2 genera of fur seals, which, in turn, are divided into several species) ^{[11, p. 375]} are especially highlighted by the legislator. In this case, "sea beavers" probably means an animal such as the "sea otter", listed in the Red Book of the Russian Federation ^{[12, p. 983]}, which is also commonly referred to as the "Kamchatka beaver" and "sea otter". However, from the point of view of biology, sea otters belong to the Carnivorous order, the Marten family and the Otter subfamily, unlike beavers belonging to the Rodent order and the Beaver family ^{[11, pp. 348, 175]}. It is not entirely clear why the illegal extraction of sea otters entails liability under the article in question of the Criminal Code of the Russian Federation, and not under the article providing for punishment for illegal hunting (art. 258 of the Criminal Code). According to clause "b" of Part 1 of Article 11 of Federal Law No. 209-FZ dated July 24, 2009 "On Hunting and Conservation of Hunting Resources and on Amendments to Certain Legislative Acts of the Russian Federation" (hereinafter referred to as the Hunting Law) (Federal Law No. 30 of 2009, No. 3735) otters include They belong to hunting resources and, accordingly, cannot be VBRs. At the same time, A.V. Zubkova notes that sea otters are traditionally classified as UBR and their illegal extraction forms part of Article 256 of the Criminal Code of the Russian Federation ^{[13, p. 26]}. The tendency to classify these animals as UBR can be traced in the legislation of the Soviet era. As O.V. Ustyantseva points out, characterizing the legal acts of the Soviet period, it can be noted that the concept of "marine mammal" was legally fixed in them, which included sea otters ^{[14, p. 520]}. As an example of such acts, we can cite the Temporary Rules for the Protection and Fishing of Marine Animals (approved by Order of the USSR Ministry of Fisheries of September 10, 1969 No. 315), the Rules for the Protection and Fishing of Marine Mammals (approved by Order of the USSR Ministry of Fisheries of July 11, 1975 No. 300). At the same time, at the moment, there is no indication in any regulatory legal act that these animals are among the UBR. In this regard, in order to eliminate such gaps, it seems appropriate to approve at the legislative level a list of mammals classified under Russian law as UBR. Thus, in our opinion, Part 2 of Article 256 of the Criminal Code of the Russian Federation requires changes in terms of clarifying the subject of the crime provided for by this rule of law. The following wording is proposed: "Illegal extraction of marine mammals on the high seas or in restricted areas", with a footnote to the list of mammals related to the WBR, including marine mammals.

As noted by Y.A. Sluchevskaya, the problem of distinguishing environmental crimes related to illegal mining and administrative offenses in this area is one of the most urgent for law enforcement. The inaccuracy of the wording, the inconsistency of the provisions of the rules governing fishing with the provisions prescribed in the Criminal Code of the Russian Federation and PP VS No. 26, leaves the decision of certain issues at the discretion of the law enforcement officer. For example, the Fishing Rules for the Far Eastern Fisheries Basin, approved by Order No. 285 of the Ministry of Agriculture of the Russian Federation dated May 6, 2022 (Official Internet Portal of Legal Information (pravo.gov.ru ). 2022. No. 0001202206020007.), establish a ban on mining with indication of the geographical coordinates of the area, the time interval, in some cases, specific species are indicated. However, not all of these points determine that this prohibition applies specifically during the spawning season. Undoubtedly, it should be borne in mind that the reproduction of UBR is a complex process that depends on many factors (temperature, weather conditions, daylight hours, etc.), and therefore an increase in the prohibition period for the extraction of the resources in question seems justified. However, the lack of uniformity of formulations leads to different interpretations of legal norms and difficulties in their application in practice ^{[15, p. 106]}.

Thus, the legal norms providing for responsibility for the illegal extraction of WBR require changes to them, especially in terms of specifying the wording contained in the legislation and their compliance with the norms governing fishing and conservation of WBR. Bringing the terminology used to uniformity with the consolidation at the legislative level of the list of mammals that belong to aquatic biological resources will help eliminate legal conflicts and facilitate the understanding of the legal norms under consideration both for the subjects of their application and for citizens. It seems that these changes will contribute to a more effective implementation of the standards under consideration in practice.