Protection of wildlife sites: individual legal constructions and models of their implementation (regional features)

Pletnikov Viktor Sergeevich PhD in Law Associate Professor, Department of Theory of State and Law, Ural State Law Academy 620000, Russia, Sverdlovsk region, Yekaterinburg, Krasnoflottsev str., 6, sq. 20 pvs80@mail.ru Other publications by this author

Relevance and methodological foundations of the study1. In accordance with Article 1 of Federal Law No. 52-FZ of April 24, 1995 "On the Animal World" (Collection of Legislation of the Russian Federation, 24.04.1995, No. 17, Article 1462), the animal world object should be understood as an organism of animal origin (wild animal).

The Constitution of Russia defines that natural resources are used and protected in the Russian Federation (Part 1 of Article 9), ownership, use and disposal of natural resources (Part 1 of Article 72) refers to issues of joint management.

Regions for the implementation of these powers are created, in particular, by the state authorities of the subject of the Russian Federation – ministries (for example, the Ministry of Forestry and Protection of Wildlife Objects of the Nizhny Novgorod region), departments (for example, the Department for the Protection, Control and Regulation of the Use of Wildlife Objects and their Habitat of the Amur Region), and departments (Department for protection of objects of the animal world of Kuzbass), which are responsible for the preservation of the animal world and its habitat on the territory of the subject of Russia.

The Sverdlovsk Region has a Department for the protection, control and regulation of the use of wildlife of the Sverdlovsk region (URL: https://dozhm.midural.ru /) (hereinafter referred to as the Department), thanks to whose activities 79 species of animals that belong to hunting resources live in the forests of the Middle Urals, the number of animals and birds is growing. For example, the number of moose and roe deer has increased almost 2.5 times in 15 years, during the same time, hunting inspectors conducted 55.4 thousand raids, seized 1,760 firearms, transferred 1,869 materials on criminal cases to the investigative authorities (Anniversary of the Department for the Protection, Control and Regulation of the Use of Wildlife of the Sverdlovsk Region // URL: https://dozhm.midural.ru/news/show/id/304 (accessed: 03/17/2023).

The analysis of legal practice in the protection of wildlife clearly demonstrates a significant amount of problems ^{[1; 3]}, in particular, today, the third part of the statements of state inspectors on the facts of the extraction of wild ungulates with their subsequent transportation using motor vehicles, remains without due attention from law enforcement agencies.

2. The legal structure, according to M. L. Davydova, is an ideal model developed by the doctrine and accepted by the legal scientific community, which allows theoretically comprehending, normatively fixing, detecting in the legal text and in real legal relations a natural, consistent, logical relationship of structural elements of various legal phenomena ^[2]. D. E. Ponomarev writes more about the essence of the legal construction ^[7]. Yes, and in general, a significant number of works on legal technology have been prepared today, in which the authors willingly pay attention to the fact that modern domestic jurisprudence is largely a set of legal constructions ^{[8; 10; 11]}.

However, few people pay attention to the fact that the concept of legal construction is based on another concept – a model. Or if we talk about a model in relation to jurisprudence, a model in jurisprudence is an intellectual and volitional description that sufficiently repeats the essential properties of the modeled object, process or phenomenon of state–legal life, formed under the influence of the totality of objective and subjective factors of social development ^[6].

It is the model in jurisprudence – this analytical description determines the features, defects or effectiveness of the legal structure. The creation of a normative legal structure is conditioned by the quality of the analysis of the existing social relations in the sphere intended for legal impact. Conversely, the subject, having familiarized himself with the normative description of a specific legal structure, forms in his mind appropriate ideas about legal processes and procedures within which he carries out legal activities, prepares legal documents.

Thus, a situation often arises when there is one legal construction, but at the same time there are at least two models of its implementation, and, as a rule, an order of magnitude more. Each of the models fits into the normative content of the legal structure, in the worst case does not contradict it. For the purposes of uniformity in legal practice, it is customary to create legal positions, prepare plenums, reviews, recommendations, etc., but while there are none, individual subjects often have a desire to choose a "convenient" model for the implementation of a construction for this particular set of legal facts.

3. The protection of objects of the animal world is carried out by a significant amount of forces and means, in various forms. The greatest volume of questions (problems) arises in the process of protecting the violated right. As N. I. Matuzov wrote, "the protection and protection of a subjective right or a legally protected interest are not the same thing: they are constantly protected, and they are protected only when they are violated. Protection is the moment of protection, one of its forms. These concepts do not coincide"^[5]. Today, in order to protect the objects of the animal world, the legislator has established the possibility to attract the culprit for committing, for example:

- administrative offenses to administrative responsibility under Articles 7.11 and 8.37 of the Code of Administrative Offenses of the Russian Federation ^[9] (hereinafter – the Administrative Code of the Russian Federation);

- crimes to criminal responsibility under Article 258 of the Criminal Code of the Russian Federation ^[4] (hereinafter – the Criminal Code of the Russian Federation).

Thus, we will pay attention to these four normative legal constructions, formulate problems and propose solutions to them.

Analysis of legal practice Today, legal practice is very diverse and provides a large amount of information, both for the legislator and for the law enforcement officer.

It depends on each of them whether or not our descendants will be able to see the same diversity of the animal world as we do.

1. The analysis of legal practice allows us to assert that there are facts when traffic police officers or employees of a hunting user, during the hunting periods closed for roe deer, stop cars in which armed citizens transport whole or butchered carcasses of roe deer:

- On April 12, 2021, during the hunting period closed for roe deer, a car was stopped on the territory of the Pyshminsky city district by traffic police officers, during the inspection of which one carcass of a wild hoofed animal was found – Siberian roe deer and a Saiga hunting carbine (CUSP of April 12, 2021). On this fact, a decision was made to refuse to initiate criminal proceedings a case that has been repeatedly appealed to the district prosecutor's office and to the court. The decisions taken to refuse to initiate criminal proceedings were canceled, the material was sent for additional verification. However, no criminal case was initiated. Due to the expiration of the term of bringing to administrative responsibility under part 1 of Article 8.37 of the Administrative Code of the Russian Federation for transporting hunting products without permission, only one of the three hunters was brought to administrative responsibility;- On May 28, 2019, during the hunting period closed for roe deer, traffic police officers in the territory of the city district of Sukhoi Log revealed the fact of transporting one carcass of a roe deer by car under the control of a citizen Ts. (CUSP of June 03, 2019). On this fact, a decision was made to refuse to initiate criminal proceedings.

Citizen Ts . brought to administrative responsibility under part 1 of Article 8.37 of the Administrative Code of the Russian Federation for transporting hunting products without permission;- On August 27, 2019, during the hunting period closed for roe deer, traffic police officers in the territory of the Bogdanovich city district revealed the fact of transporting one carcass of roe deer by car under the control of citizen B. (CUSP of August 28, 2019). The decision to initiate criminal proceedings of September 19, 2019 was canceled by the prosecutor.

On this fact, a decision was made to refuse to initiate a criminal case. Driver B. and passenger N. were brought to administrative responsibility under part 1 of Article 8.37 of the Administrative Code of the Russian Federation for transporting hunting products without permission;- On September 12, 2021, within the time limits closed for the extraction of female roe deer, employees of the hunting user in the territory of the Tugulymsky city district revealed the fact of transporting a female roe deer with traces of a gunshot wound by car.

The driver explained that he was walking the dog and found the carcass (CUSP of September 13, 2021). On this fact, a decision was made to refuse to initiate a criminal case, which was later appealed to the district prosecutor's office. The resolution was canceled, the material was sent for additional verification. However, no criminal case was initiated. On April 19, 2022, a protocol was drawn up against the driver under part 1 of Article 8.37 of the Administrative Code of the Russian Federation for transporting hunting products without permission;- On September 30, 2021, during the hunting period closed for roe deer, employees of the traffic Police of the Ministry of Internal Affairs of Russia in the Tyumen region revealed the fact of transporting one roe deer by car.

The passenger explained that he had obtained one individual of roe deer on the territory of the Tugulymsky city district (CUSP of September 30, 2021). On this fact, a decision was made to refuse to initiate a criminal case, which was later appealed to the district prosecutor's office. The resolution was canceled, the material was sent for additional verification. However, no criminal case was initiated. In relation to the passenger, a protocol has been drawn up under part 2 of Article 7.11 of the Administrative Code of the Russian Federation, which has been sent to the court for consideration. The driver was brought to administrative responsibility under part 1 of Article 8.37 of the Administrative Code of the Russian Federation for transporting hunting products without permission;- On October 30, 2021, during the hunting period closed for roe deer, traffic police officers in the territory of the Baikal municipal district revealed the fact of illegal extraction and transportation by car of one individual of roe deer.

During the inspection of the car, bags with meat of a wild hoofed animal – Siberian roe deer, as well as two units of hunting firearms were found. There were two citizens in the car and a person who was not identified during the inspection, who fled the scene with his weapon (CUSP of October 30, 2021). On this fact, a decision was made to refuse to initiate a criminal case, which was later appealed to the district prosecutor's office. The resolution was canceled, the material was sent for additional verification. The Department was not notified of the decision taken based on the results of the additional audit;- On November 22, 2021, on the territory of the Irbit municipality, a citizen of S. illegally obtained one roe deer, after which he transported hunting products by car (CUSP of November 23, 2021).

During the inspection, he admitted guilt, showed the place of extraction. Police officers drew up a protocol on part 2 of Article 7.11 of the Administrative Code of the Russian Federation, which was sent to the court. The driver S. was brought to administrative responsibility under part 1 of Article 8.37 of the Administrative Code of the Russian Federation for transporting hunting products without permission;- On December 02 , 2021 , on the territory of the Bogdanovich city district , a citizen of Sh .

illegally obtained one individual of roe deer, after which, together with citizen Ya. the primary processing of hunting products was carried out, and transported by car to the place of residence (CUSP dated December 03, 2021). During the inspection, a citizen of Sh. he admitted his guilt. Police officers drew up a protocol on part 2 of Article 7.11 of the Administrative Code of the Russian Federation, which was sent to the court. Citizen Ya. brought to administrative responsibility under part 1 of Article 8.37 of the Administrative Code of the Russian Federation for transporting hunting products without permission;- On September 19, 2022, on the territory of a hunting ground located on the territory of the Sloboda-Turin municipal district assigned to a hunting user, a citizen of R. without a permit for the extraction of hunting resources and permits, extracted 1 individual of Siberian roe deer from his hunting firearms.

After that, he made the primary processing of hunting products, placed part of the illegally obtained hunting products in the trunk of a car and transported the illegally obtained hunting products through the territory of hunting grounds to the place of its stop by the hunting user's employees (CUSP of September 19, 2022). On this fact, a decision was made to refuse to initiate criminal proceedings under paragraph "b" of part 1 of Article 258 of the Criminal Code of the Russian Federation - the decision is appealed.Despite the provisions of paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 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" which established that a person can be found guilty of illegal hunting committed with the use of a mechanical vehicle if it was carried out transportation of illegally obtained animals.

However, despite the illegality of the extraction, criminal cases on the grounds of paragraph "b" of part 1 of Article 258 of the Criminal Code of the Russian Federation were not initiated, i.e. criminal cases on the facts of transportation of one roe deer and one wild boar are not initiated.

At the same time, police officers do not take proper measures to bring persons to administrative responsibility. Of the 11 persons brought to administrative responsibility for violating the Rules of hunting for these materials, only 2 protocols were drawn up by police officers. Materials on illegal hunting are sent to the service of the district police commissioners, who, without carrying out the necessary verification measures aimed at solving crimes and establishing all the circumstances of the crime committed, formally take decisions to refuse to initiate criminal proceedings. At the same time, they point to the decree of the Government of the Russian Federation No. 750 of June 10, 2019, the fee for illegal extraction of one individual of roe deer is 40,000 rubles, the damage is insignificant and there is no crime under paragraph "a" of part 1 of Article 258 of the Criminal Code of the Russian Federation.

2. There are facts of incorrect legal qualification of acts when persons were detained with hunting products without permits for the right to extract hunting resources of this type and tear-off coupons to these permits, and subsequently granted permits for the extraction of hunting resources issued to third parties who did not participate in the hunt:

- On November 27, 2020, at the 96th kilometer of the Yekaterinburg-Shadrinsk-Kurgan highway, traffic police officers stopped a Nissan Almera car under the control of citizen S., who was transporting 3 roe deer cut into pieces without a permit for hunting resources, in which a corresponding note was made about the extraction of these hunting animals, or filled in a tear-off coupon to the specified permit (CUSP dated November 28, 2020). Citizen S. and citizen V., interviewed during the inspection, explained that hunting was carried out in the area of the village of Baydary, Shadrinsky district, where three roe deer were extracted on the basis of permits. Transportation of hunting products without documents was explained by their forgetfulness. During the verification process, tear-off coupons for permits were obtained through the Vacap messenger and attached to the materials. According to the Department of Natural Resources and Environment of the Kurgan region, permits under this number were not issued in 2020. On this fact, a decision was made to refuse to initiate a criminal case. The decision was repeatedly appealed to the district prosecutor's office and to the court. The decisions taken to refuse to initiate criminal proceedings were canceled, the material was sent for additional verification. However, no criminal case was initiated. Due to the expiration of the term of bringing to administrative responsibility on October 28 , 2021 , citizen S. was brought to administrative responsibility under part 1 of Article 8.37 of the Administrative Code of the Russian Federation for transporting hunting products without permission;- the investigation into the criminal case initiated on December 10, 2021 is being delayed.

OP MO of the Ministry of Internal Affairs of Russia "Nizhneserginsky" under paragraph "a" of part 1 of Article 258 of the Criminal Code of the Russian Federation on the fact of illegal extraction on November 11, 2021 of one female moose under the age of one year on the territory of the hunting ground "C". During the investigation, a permit was presented for the extraction of elk under the age of one year on the territory of the hunting ground "N", issued in the name of citizen K., who was absent from hunting, and closed the permit by phone call, not knowing about the place of elk extraction. The supervising prosecutor expressed the position that, having a permit for the territory of the hunting ground "H", the extraction of elk on the territory of the neighboring hunting ground "C" is not a crime, since the permit was closed and no damage was caused. The supervising prosecutor does not coordinate the direction of this criminal case to the court.Under these circumstances, law enforcement agencies make decisions on the absence of a criminal offense in the actions of detained persons, and signs of an administrative offense provided for in Article 8.37 of the Administrative Code of the Russian Federation are seen.

And what is important, when conducting inspections by the staff of the body of inquiry, a sufficient number of measures are not carried out aimed at verifying the explanations of the detained persons in order to refute their versions of non-involvement in the commission of crimes or about the extraction of wild animals on the basis of permits, the roots of which were accidentally forgotten by them. Decisions are made on the basis of the roots of permits submitted via the Vacap messenger, the origin of which is not verified by anyone, or on the basis of later submitted permits issued to other persons with whom collective hunting was allegedly carried out.

3. Law enforcement officers, as well as the prosecutor's office, have "introduced" the concept of an "established hunting brigade", whose members can hunt independently, independently of each other, at any time, without the participation of the person in whose name the permit was issued, since the permit was purchased from the hunting user for joint money, or the members of this brigade have been friends for a long time they know each other and always hunt together.

On this basis, on December 02, 2021, the criminal case initiated on January 28, 2021 by the MO of the Ministry of Internal Affairs of Russia "Novolyalinsky" under paragraph "a" of part 1 of Article 258 of the Criminal Code against citizen S. on the fact of illegal extraction on January 04, 2021 of one female adult moose was terminated. During the investigation, a permit was presented for the extraction of elk under the age of one year, issued in the name of citizen B., who was absent from the hunt. In addition, during the investigation it was established that citizen S., carrying out individual actions not coordinated with anyone, carried out hunting, during which he obtained a female adult moose, without having a permit for the extraction of hunting resources issued in his name, that is, he actually carried out the act provided for in paragraph "a" of part 1 of Article 258 of the Criminal Code RF. From the decision of the investigator, agreed with the supervising prosecutor, it follows that the corpus delicti in the actions of citizen S. is absent in view of the absence of damage caused, since citizen S. is a member of a previously formed hunting brigade, and one of its members is citizen B., who is absent from the extraction of an adult moose by citizen S., has handed over a permit for the extraction of one individual moose in under the age of one year;

On January 07, 2021, inspectors of the Traffic Police Department of the Ministry of Internal Affairs of Russia in the Talitsky district detained citizen K. and citizen M., who were transporting the butchered carcass of a wild boar by car, without having a permit for the extraction of hunting resources, in which a corresponding note was made about the extraction of these hunting animals, or a completed tear-off coupon to the specified permit (CUSP dated January 07, 2021 The detainees explained that they had extracted a wild boar on the territory of the Talitsky city district, on the basis of a voucher No. XXX dated August 10, 2020, issued in the name of citizen Sh., which they purchased with joint money, while citizen Sh. he was not notified about the hunt.The concept of "an established team of hunters" is not provided for by the current legislation.

The hunting rules contain the concepts of "persons participating in collective hunting" and "list of persons participating in hunting". Based on these concepts, collective hunting can only be carried out by hunters included in the list by the person in whose name the permit was issued, drawn up on the day of the hunt. Also, the hunting rules establish that the person in whose name the permit was issued is responsible for conducting a collective hunt and is obliged to be at the place where it is held (paragraph 10.1).

Conclusions and suggestionsTo summarize.

The presence of two or more similar legal structures represented in various branches of law does not have the best effect on the practice of applying each of them. The law enforcement officer has the opportunity, under certain circumstances, to interpret the actual actions of the subjects at his own discretion, to choose the model of implementation of the rule of law that will achieve the desired result.

To give uniformity to legal practice, the implementation of legal construction strictly within the framework of a single model:

1) the legislator needs to pay close attention to the quality of the legal structure being formed. Measures should be taken to ensure that the "complex" legal structure presented in one branch of law is not subjected to its simple decomposition into components of "simple" legal structures within another branch of law. Otherwise, the law enforcement officer is given the opportunity of subjective discretion in the application of the design and virtually arbitrary choice of the type of legal liability;

2) the subject entitled to the official interpretation of normative legal provisions, generalization of legal practice, should be obliged, in the event of the emergence of various models of the implementation of the normative establishment, with a certain frequency, to prepare plenums, reviews and other materials, the mandatory application of which is not in doubt, and not the implementation of the proposed models of the implementation of legal construction in practice entails legal responsibility;

3) the law enforcement officer (police officers) needs to be clearly guided by the explanations of the Plenum of the Supreme Court, and when identifying the facts of transportation of captured wild animals in terms closed for hunting for this type, it is necessary to make decisions on the initiation of criminal proceedings under paragraph "b" of part 1 of Article 258 of the Criminal Code of the Russian Federation.

This position is supported by both the Sverdlovsk Interdistrict Environmental Prosecutor's Office and the courts of the Sverdlovsk region (the decision of the magistrate of the judicial district No. 2 of the Kamensky Judicial district dated January 31, 2020 in case No. 1-06/2020 against Tabanin A.V., the decision of the Irbit District Court dated June 05, 2020 in case No. 1-93/2020 against Trofimov I.V., the decision of the justice of the peace of the judicial district No. 3 of the Sukholozhsky judicial district of June 15, 2020 in respect of Gali-Akbirov A.F., the verdict of the justice of the peace of the judicial district No. 4 of the Tavdinsky judicial district of June 18, 2021 in respect of Shumbor V.P., etc.).

A similar practice is developing on the territory of the Russian Federation. When transporting illegally obtained hunting products (with the use of vehicles for transporting illegally obtained hunting products), the act qualifies as illegal hunting committed with the use of a vehicle. For example, the Shatrovsky District Court of the Kurgan region found guilty of committing a crime under paragraph "b" of part 1 of Article 258 of the Criminal Code of the Russian Federation, a citizen E., who transported hunting products subjected to primary processing, illegally obtained by Ch. and Sh., convicted under part 2 of Article 258 of the Criminal Code of the Russian Federation in his car. In the verdict of May 24, 2021, the court indicated that E. was aware of the absence of permits for hunting, about the purpose of the trip of Ch. and Sh. to the forest, about the result of hunting – shooting roe deer, he himself took part in the cutting of carcasses, that is, primary processing, joining the actions of Sh., and after that transported illegally obtained hunting products in his car. By the cassation ruling of the Seventh Cassation Court of General Jurisdiction of March 01, 2022 in case No. 7U-670/2022-(7U-18239/2021) [77-999/2022], the verdict of the Shatrovsky District Court of the Kurgan Region of May 24, 2021 and the appeal decision of the Kurgan Regional Court of August 05, 2021 were left unchanged, the verdict entered into force;

4) when extracting hunting resources without a permit and without the person in whose name the permit was issued, the act should be considered illegal hunting, since the intent to extract hunting resources was realized. The granting of permits issued to third parties is carried out in order to avoid criminal liability, the closure of these permits is carried out only after the fact of mining has been identified by employees of regulatory authorities. Thus, the acts should be qualified as criminally punishable;

5) it is necessary to strengthen control by supervising prosecutors over the content of the decisions issued on the refusal to initiate criminal proceedings, on the initiation of criminal cases and the suspension of criminal proceedings, on the facts of illegal hunting.