Criminal law protection of soil and the means of production in agriculture

Kudelkin Nikolai PhD in Law Leading Scientific Associate; Department of Environmental, Land and Agrarian Law; Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 nkkix@inbox.ru Other publications by this author

Agriculture is of great importance for ensuring the country's food security ^[1], while, as noted in the literature, the implementation of this type of anthropogenic activity is often carried out without proper consideration of the characteristics and safety margin of natural landscapes and agroecosystems. Currently, agriculture is one of the significant environmental pollutants ^{[2, p. 21]}. According to the State Catalog of Pesticides and Agrochemicals, more than a thousand plant protection products are allowed in Russia. In addition, residual amounts of previously used persistent pesticides continue to remain in the soils, some of which fall under the regulation of the Stockholm Convention on Persistent Organic Pollutants (Stockholm, May 22, 2001) (Bulletin of International Treaties. 2012. No. 12. pp. 11-55.). Thus, the identified area of contamination with total DDT is the largest in comparison with other identified pesticides. Although DDT has been banned in Russia for many years. In 2022, the area of agricultural land treated with pesticides amounted to 93,703.6 thousand hectares. Over the same period of time, 74 kg of mineral fertilizers were applied to one hectare of sown area by agricultural organizations (On the state and Environmental Protection of the Russian Federation in 2022. State Report. Moscow: Ministry of Natural Resources of Russia; Lomonosov Moscow State University, 2023. pp. 134-135.). In addition to environmental pollution, agriculture can lead to land degradation, loss of wildlife habitats, changes in the hydrological regime of territories, destruction of natural vegetation in large areas, desertification due to overloading of pastures, etc. ^{[3, pp. 131-132]}. Thus, the impact of agriculture on nature is very diverse and significant, which indicates the need for environmental protection in its implementation. One of the means of legal protection of nature is legal liability. Within the framework of this article, the issues of applying criminal liability for offenses in agriculture that infringe on such a component of the natural environment as land (soils) will be considered.

Thus, Article 254 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) provides for liability for damage to land. Part 1 of this article establishes liability for poisoning, pollution or other damage to land by harmful products of economic or other activities due to violations of the rules for handling fertilizers, plant growth stimulants, pesticides and other dangerous chemical or biological substances during their storage, use and transportation.

The object of the crime under consideration is the relations that arise in the process of protecting and using land (soils), relations in the field of ensuring environmental safety, as well as human health.

The subject of this crime deserves special attention, the title and text of the norm use the phrase "damage to land", that is, logically, the subject of the criminal act in question is land. The term "land" is quite widely represented in Russian legislation. Based on the meaning of Articles 9, 36, 72 of the Constitution of the Russian Federation, land refers to natural resources. In Article 1 of the Land Code of the Russian Federation (hereinafter referred to as the CC RF), in the context of the basic principles of land legislation, land is considered as a natural object, an essential component of nature, a natural resource, as immovable property, an object of ownership and other rights, an essential component of the environment and a means of production. According to Article 6 of the CC RF, devoted to objects of land relations, land is considered as a natural object and a natural resource (clause 1, clause 1). In turn, lands are divided into seven categories according to their intended purpose (art. 7 CC RF). In accordance with Article 1 of Federal Law No. 7-FZ of January 10, 2002 "On Environmental Protection" (Federal Law of the Russian Federation. 2002. No. 2. Art. 133.) (hereinafter – the Law on Environmental Protection), land belongs to the components of the natural environment. It is worth noting that the term "land", despite its widespread use in regulatory legal acts, is not disclosed in domestic legislation.

Important in the context of studying the subject of the crime under consideration is the concept of valuable land. According to paragraph 1 of Article 100 of the CC RF, these include lands within which there are natural sites and cultural heritage sites of special scientific, historical and cultural value. At the same time, in accordance with clause 5, clause 2, Article 94 of the CC RF, especially valuable lands belong to lands of specially protected territories. At the same time, clause 6, clause 1, Article 1 of the CC RF speaks about the priority of protecting especially valuable lands and lands of specially protected territories. Thus, based on the meaning of this norm, these concepts are not identical. As V.V. Ustyukova rightly writes, clauses 6, paragraph 1, Article 1 and Article 100 of the CC RF do not correspond to each other, and clauses 6, paragraph 1, Article 1 contain internal contradictions and are not fully consistent with the norms of Chapter XVII of the CC RF, and therefore these norms need serious adjustment, since in their current form they They do not make it possible to clearly identify which lands are particularly valuable and are subject to special protection. To solve this problem, the author speaks about the need to bring the above-mentioned norms into line with each other ^[4]. It seems that the elimination of this contradiction is also important for the purposes of applying liability for offenses encroaching on land (soil). For example, to increase liability if an act encroaches on valuable land, due to the fact that such an act has an increased level of public danger.

Close to the term "land" is the term "soil", which, according to Article 1 of the Law on Environmental Protection, also refers to the components of the natural environment. That is, from the point of view of the Law on Environmental Protection, land and soil are not synonymous, while the term "soil" is not disclosed in the said Law. However, in Federal Law No. 206-FZ of July 21, 2014 "On Plant Quarantine" (Federal Law of the Russian Federation. 2014. No. 30 (Part I). Art. 4207.), soil is defined as a component of the natural environment, consisting of mineral and organic parts that ensure the vital activity of plants. At the same time, the concept of "soil" does not include peat, sand, deep-lying soil, compost, as well as artificially created plant habitat. As can be seen from this definition, one of the main qualities of the soil is its fertility.

For a more complete understanding of the concept of "soil", it is advisable to turn to the science of soil science. Thus, according to one of the common definitions, soil is understood to be a complex multifunctional and multicomponent open multiphase structural system with fertility in the surface layer of the rock weathering crust, which is a complex function of rock, organisms, climate, topography and time. In this definition, there are indications of the material content of the object, its functional connections with other objects of nature and its main qualities [5 p. 7]. Experts also emphasize that the special position of the soil is determined by the fact that, firstly, both mineral and organic substances are involved in its composition, and, most importantly, a large group of specific organic and organomineral compounds – soil humus. In addition, living organisms make up an integral part of the soil: plant root systems, soil-dwelling animals of various sizes, up to unicellular ones. That is why the soil is a multiphase system, including solid, liquid, gaseous and living phases ^{[5, pp. 7-8]}. The above natural scientific definition of soil shows how significant and complex it is a component of nature that needs proper legal protection, including through criminal liability.

Another related term to the above is the term "soil", which, according to art. 1 of the Law on Environmental Protection, is defined as the surface layer of the earth, consisting of mineral and (or) organic substances. It should be said here that this concept is quite difficult to distinguish from the concept of "soil", which also consists of mineral and organic substances.

From the above analysis of terms and definitions contained in domestic legislation, it can be seen that understanding the subjects of environmental offenses is not an easy task, the solution of which often requires recourse to natural sciences. It should be emphasized here that the availability of relevant scientifically based definitions in the legislation could eliminate this problem.

It should be noted that the subject of the crime provided for in Article 254 of the Criminal Code of the Russian Federation was examined in detail and comprehensively investigated by S.I. Golubev. In his opinion, the most reasonable point of view is that the soil is the subject of this crime. At the same time, S.I. Golubev notes that the scientific position limiting the soil to its fertile layer seems preferable. The author also emphasizes that it is precisely in the diminution of the fertile properties of the soil that the social danger of the crime in question manifests itself ^[6].

We should agree with S.I. Golubev's opinion that it is advisable to consider soil as the subject of a crime under Article 254 of the Criminal Code of the Russian Federation. However, the thesis that the subject of the crime in question should be limited only to its fertile layer seems controversial. Firstly, it seems that the purpose of art. 254 is to protect the land (soil) as a component of the natural environment, rather than a separate part of it, which is the fertile soil layer. Which, for example, is the subject of an offense under Part 1 of Article 8.6 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Administrative Code of the Russian Federation) and is directly indicated in the disposition of the norm. Secondly, attention should be paid here to the fact that other types of crimes contained in Chapter 26 of the Criminal Code of the Russian Federation and providing for liability for encroachments on various components of the natural environment, such as water (art. 250 of the Criminal Code), atmosphere (art. 251 of the Criminal Code), subsoil (art. 255 of the Criminal Code), protect these the components of the natural environment are completely, and not in any separate part of them. In addition, it is necessary to pay attention to the fact that soil pollution is dangerous not only for itself, but also for other components of the natural environment, since pollutants accumulated in the soil can have a wide range of negative effects on neighboring environments, such as groundwater and surface waters. And pollution can accumulate not only in the fertile soil layer.

In this context, it is advisable to consider the global functions of the soil. Undoubtedly, the main one is to ensure the existence of life on Earth. The second most important function of the soil is to ensure the constant interaction of large geological and small biological cycles of substances on the Earth's surface. The third function is to regulate the chemical composition of the atmosphere and hydrosphere. The fourth function is the regulation of biospheric processes. The fifth function is the accumulation of active organic matter and related chemical energy on the Earth's surface ^[5]. Obviously, pollution and other damage to the soil can disrupt many of its functions, which are important for the environment. Thus, it seems most logical to consider the soil as a component of the natural environment, and not just its fertile layer, as the subject of the criminal act in question.

The objective side of the crime in question is described in the norm's disposition in a rather complicated manner and consists in committing an act (actions or omissions) involving poisoning, contamination or other damage to the land by harmful products of economic or other activities due to violations of the rules for handling fertilizers, plant growth stimulants, pesticides and other dangerous chemical or biological substances. In this regard, it should be said that according to Article 1 of the Law on Environmental Protection, pollution is understood as the entry into the environment of a substance and (or) energy, the properties, location or quantity of which have a negative impact on the environment. Thus, based on the above definition, it can be concluded that the disposition of Part 1 of Article 254 of the Criminal Code of the Russian Federation refers to the contamination of the earth with harmful substances as a result of violation of established rules. Moreover, in this context, the term poisoning can be considered as a synonym for pollution. However, it seems that such a thing as spoilage may not be related to environmental pollution. For example, in the case of damage or destruction of a fertile soil layer, loss of soil properties as a result of overgrazing, etc. For example, in Yamal, uncontrolled reindeer husbandry ^[7] led to the degradation of lichen pastures, caused a decrease in phytomass and the number of wild animals, and triggered the processes of desertification of territories ^[8]. Accordingly, a number of socially dangerous acts capable of causing significant damage to the soil fall outside the scope of Article 254 of the Criminal Code of the Russian Federation due to the fact that the objective side of the crime under consideration is entirely devoted to the contamination of the earth with chemical or biological substances and does not affect other types of negative effects on this component of nature. In order to significantly expand the scope of Article 254 of the Criminal Code of the Russian Federation, as well as increase its environmental potential, the following wording of Part 1 of this article can be used: "Soil pollution or its spoilage as a result of economic or other activities that have caused harm to human health or the environment." The use of the term "pollution" will make it possible to include in criminal acts not only pollution with dangerous substances, but also other types of it, for example, energy pollution. The term "spoilage", in turn, will imply some other negative impact on the soil, for example, the destruction of its fertile layer.

254 of the Criminal Code of the Russian Federation is a violation of the requirements established by law in this area, here it should be said that due to its increased danger, activities related to the use of pesticides and agrochemicals are strictly regulated. The fundamental law here is Federal Law No. 109-FZ of July 19, 1997 "On the Safe Handling of Pesticides and Agrochemicals" (Federal Law of the Russian Federation. 1997. No. 29, art. 3510.). For example, according to art. 3 of this Law, the turnover of pesticides and agrochemicals that are not included in the State Catalog of Pesticides and Agrochemicals Approved for Use in the Russian Federation is prohibited. Thus, the use of pesticides or agrochemicals requested for use on the territory of the Russian Federation, which led to damage to the land, in the event of the occurrence of the consequences specified in the Law, entails liability under art. 254 of the Criminal Code of the Russian Federation. The composition of the crime in question is objectively constructed as a material one and requires the occurrence of socially dangerous consequences in the form of harm to human health or the environment, as well as the presence of a causal relationship between the act and the consequences that have occurred. According to Article 1 of the Law on Environmental Protection, environmental damage is understood as a negative change in the environment as a result of its pollution, which has led to the degradation of natural ecological systems and the depletion of natural resources. According to Resolution No. 21 of the Plenum of the Supreme Court of the Russian Federation dated October 18, 2012 (Bulletin of the Supreme Court of the Russian Federation, No. 12, December 2012), harm to human health is understood to mean harm to health of any severity to one or more persons.

The subject of the crime is common.

The subjective side is an intentional form of guilt (according to Part 1).

The second part of the article under consideration contains qualified personnel and establishes responsibility for the commission of an act (damage to land) in an environmental disaster zone or in an environmental emergency zone. Thus, for the qualification of an act under Part 2 of Article 254 of the Criminal Code of the Russian Federation, the place of commission of the act becomes important – an optional feature of the objective side of the corpus delicti. According to paragraph 1 of Article 57 of the Law on Environmental Protection, the procedure for declaring and establishing the regime of environmental disaster zones is established by special legislation. The Order of the Ministry of Natural Resources of the Russian Federation dated February 6, 1995 No. 45 (Legal regulation of nature management and Environmental protection: Collection of Norms) is devoted to these issues. acts. M., 1996. Section 11. pp. 365-366.), which approved the "Temporary procedure for declaring the Territory an environmental emergency zone." According to clause 1.1 of this Procedure, areas of the territory are declared zones of ecological emergency, where, as a result of economic and other activities, stable negative changes in the environment occur that threaten the health of the population, the state of natural ecological systems, plant and animal genetic resources, the suspension and prevention of which are impossible only due to organizational and managerial potential and material resources.financial resources of the given territory. It is also necessary to pay attention to the fact that in Federal Law No. 68-FZ of December 21, 1994 "On the protection of the population and territories from Natural and Man-made Emergencies" (Federal Law of the Russian Federation. 1994. No. 35. Art. 3648.), which defines organizational and legal norms in the field of protection of the population and territories protected from natural and man-made emergencies, the concepts of "emergency" and "emergency zone" are used. Thus, it is possible to notice an incomplete correspondence between the terms used in art. 254 of the Criminal Code of the Russian Federation and the terms used in special legislation. It seems that this problem should be solved by making appropriate changes aimed at unifying the terms used in the laws.

254 of the Criminal Code of the Russian Federation contains a particularly qualified composition, consisting in committing an act provided for in parts 1 or 2 of the article in question, but which negligently caused the death of a person.

The subjective side of this crime is characterized by an intentional form of guilt in relation to the act and negligence in relation to the consequences in the form of human death.

Since one of the most common problems in the application of legal liability for environmental offenses is the differentiation of offences with related administrative offenses, it seems logical to pay attention to this issue. Thus, Article 8.6 of the Administrative Code of the Russian Federation provides for the onset of administrative liability for damage to land. A socially harmful act under Part 1 of the article in question is the unauthorized removal or relocation of a fertile soil layer. In this case, there should be no problems with distinguishing between the composition of the crime provided for in Part 1 of Article 254 of the Criminal Code of the Russian Federation. However, Part 2 of Article 8.6 of the Administrative Code of the Russian Federation provides for liability for the destruction of a fertile soil layer, as well as damage to land as a result of violations of the rules for handling pesticides and agrochemicals or other substances dangerous to human health and the environment, production and consumption wastes, and requirements for the handling of by-products of animal husbandry when using by-products of animal husbandry. Thus, Part 2 of Article 8.6 of the Administrative Code of the Russian Federation is textually close to Part 1 of Article 254 of the Criminal Code of the Russian Federation. The main difference between the above compositions is that the composition of the crime provides for the occurrence of consequences in the form of harm to human health or the environment, and if, in the case of harm to human health, the differentiation of the composition of the crime provided for in Part 1 of Article 244 of the Criminal Code of the Russian Federation from the composition of an administrative offense under Part 2 of Article 8.6 of the Administrative Code of the Russian Federation should not cause any- if there are difficulties, then in the case of environmental damage, everything is not so clear. Due to the fact that land damage implies a negative change in the environment, which to one degree or another leads to the degradation of natural ecological systems and the depletion of natural resources, that is, to environmental harm according to its understanding in domestic legislation, and Article 254 of the Criminal Code does not contain a qualitative description of environmental harm, it seems that It is difficult to distinguish between Part 1 of Article 244 of the Criminal Code of the Russian Federation and Part 2 of Article 8.6 of the Administrative Code of the Russian Federation. Statistical data on the categories of cases under consideration are indicative, for example, in 2023, four people were convicted under Part 1 of Article 254 of the Criminal Code of the Russian Federation (https://stat.xn----7sbqk8achja.xn--p1ai/stats/ug/t/14/s/17 (date of application: 12/03/2024)), while 24 persons were brought to administrative responsibility in 2023 under Part 2 of Article 8.6 of the Administrative Code of the Russian Federation (https://stat.xn----7sbqk8achja.xn--p1ai/stats/adm/t/31/s/1 (accessed 03.12.2024). This fact may indicate, on the one hand, a high degree of latency of this type of act, on the other hand, that due to the competition of norms, administrative liability may be applied instead of criminal liability. In order to overcome this problem, the following approaches can be proposed: the first is to construct Part 2 of art. 8.6 of the Administrative Code of the Russian Federation as part of putting in danger. In this case, responsibility will be imposed for creating a threat of destruction of the fertile soil layer or damage to land as a result of violations of the rules for handling pesticides and agrochemicals or other substances dangerous to human health and the environment. The second option is to specify in the norm the area of the earth's surface on which the fertile layer will be destroyed or the land will be damaged. Exceeding the specified area will indicate a high degree of public danger of the act and transfer it to the category of crimes.

In conclusion, it should be said that an increase in the level of criminal protection of land (soils), however, as well as other components of the natural environment, cannot be achieved only by improving criminal legislation, which also requires the development of environmental, natural resource and related legislation.