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Science of law Austrian Journal of Humanities and Social Sciences 1-2 (2017)
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Science of law Юриспруденция
UDC 342.951 DOI: http://dx.doi.org/10.20534/AJH-17-1.2-225-230
I. A. Horodetska 1
1 Nizhyn Gogol State University, Nizhyn, Ukraine
ADMINISTRATIVE RESPONSIBILITY FOR ILLEGAL EXPORT FROM UKRAINE AND IMPORT ON ITS TERRITORY OF OBJECTS OF ANIMAL WORLD
Abstract
Objective: the elucidation of various aspects of administrative responsibility for illegal export from Ukraine or import into its territory of objects of the animal world.
Methods: comparison, generalization, observation, system analysis, data grouping, theoretical cognition, the method of analogy and historical method.
Results: the largest threats to biodiversity were identified, particularly pollution and destruction of natural habitats of animals and plants, management of hunting economy by predominantly extensive methods, poaching, scientifically unfounded introduction of individual fish species in the reservoirs, increasing the number of invasive species; basing on the analysis of studies of existing in the theory of administrative law views on the nature of administrative responsibility were ascertained scientific approaches to understanding the latter; the various aspects of administrative responsibility for illegal export from Ukraine or import into its territory of animals were reviewed, the object, objective side, subject and subjective side of the offense were described; were formulated concrete proposals for improvement of legal regulation of administrative responsibility in the area of protection, use and reproduction of the animal world, ecological control at border checkpoints.
Scientific novelty: in this article basing on the analysis of the current legislation of Ukraine and practice of its implementation, theoretical analysis of scientific works on administrative law, were for the first time formulated a number of proposals aimed to improve legal regulation of administrative responsibility in the field of protection, use and reproduction of the animal world, normative-legal regulation in the sphere of ecological safety and environmental protection, ecological control at checkpoints across the state border.
Practical significance: the main provisions and conclusions of the article can be used in the research field for further development of questions of administrative responsibility, law-making in the drafting of corresponding normative-legal acts in the practice of regulatory bodies in the field of protection, use and reproduction of the animal world.
Keywords: administrative responsibility; misconduct; legal regulation; the objects of animal world; area of protection, use and reproduction of animal world.
INTRODUCTION
The deepening of ecological problems in Ukraine and the world actualizes the issues of finding ways to preserve the natural environment. XXI century is characterized by intensive development of industry, transport, energet-
ics, industrialization of agriculture which all led to the fact that the anthropogenic impact on the environment has become a global concern [1, P. 82]. Under such conditions, protection and rational use of natural resources, including animal world is one of the important tasks of any state.
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According to article 3 of the Law of Ukraine « On animal world» from 13.12.2001 № 2894-III the objects of animal world are: wild animals, in a state of natural liberty, contained in semi-free conditions or in captivity; parts of wild animals; waste products of wild animals. Wild animals that are in a state of natural freedom within the territory of Ukraine, its continental shelf and exclusive (marine) economic zone, other objects of wildlife, which are subjects to this Act and are in ownership of the state also, the obj ects of wildlife which in accordance with legislation were acquired in communal or private ownership and are recognized as objects of national importance, belong to natural resources of national importance 1.
It should be noted that there is a negative growth in the number of violations of the current legislation in the area of protection, use and reproduction of the animal world in Ukraine. The biggest threats to biodiversity is pollution and destruction of natural habitats of animals and plants, management of hunting economy by predominantly extensive methods, poaching, scientifically unfounded introduction of individual fish species in the reservoirs, increasing the number of invasive species. Thus, improving the effectiveness of administrative-legal regulation offunctioning of institution ofadministrative responsibility in the area of protection, use and reproduction of animal world is one of the priority tasks of our state.
The study of various aspects of legal regulation of the protection, rational use and reproduction of animal world was researched by such scientists as: G. Ba-luk, L. Bielykh, N. Vedenin, M. Volyk, A. Hetman, R. Gizatoullin, I. Golovko, T. Grigorieva, V. Knysh, O. Kolbasov, S. Konstantinidi, V. Kostytsky, T. Malaya, V. Muntean, L. Nechiporuk, V. Ovdienko, O. Onischuk, O. Pogrebnoy, P. Tykhyi, Yu. Turlova, V. Shakhov, Yu. Shemshuchenko, V. Shekhovtsov, M. Shulga, A. Shchek-olodkin, K. Yashchuk and others [2-12]. Problems of administrative responsibility was considered by Ukrainian scientists such as V. Averyanov, O. Andriyko, P. Andrushko, O. Bandurka, A. Berlach, I. Bezklubyi, J. Bytyak, V. Halunko, V. Garashchuk, D. Golosnichen-ko, Yury Gridasov, V. Kolpakov, A. Komziuk, V. Kurylo, D. Lukyanets, S. Stetsenko, I. Shopina and others.
It should be noted that one of the negative consequences of illegal export from Ukraine and import on its
1 Zakon pro tvarynnyi svit 2001 [The law on the animal world] (Verkhovna Rada Ukrainy). Ofitsiinyi sait Verkhovnoi
Rady Ukrainy [The official website of the Verkhovna Rada of Ukraine]. <http://zakon4.rada.gov.ua/laws/show/2894-14>
territory of objects of animal world is the increase of in-vasiveness of introduced species. The invasive (alien) species are non-native species that are introduced deliberately or unintentionally outside their natural habitats, multiply and spread in ways that harm the environment in which they were relocated. Invasive species pose the greatest threat to global biodiversity.
The purpose of this paper is to study various aspects of administrative responsibility for illegal export from Ukraine and import on its territory of objects of the animal world.
ANALYSIS
The responsibility of a person for committing a specific violation of legislation on animal world should occur in accordance with requirements of administrative, civil, criminal and other legislation [3, p. 488]. In article 63 of the Law of Ukraine «On animal world» it is stated that the violation of the legislation in the field of protection, use and reproduction of fauna entails administrative, civil or criminal responsibility 2. The most common type of legal responsibility in the sphere of protection and use of animal world is an administrative responsibility, because within it occurs the response to violation of the state law, regulations, rules and norms of behavior of subjects of legal relations in Ukraine [3, P. 495].
In the theory of administrative law there are different approaches to the formulation of the definition of «administrative responsibility». In particular, V. Kolpakov defines administrative responsibility as enforced, in compliance with the established procedure, application by the eligible entity of measures provided by the legislation for an administrative offence, which is made by the offender [13, P. 76]. P. Makushev under the administrative responsibility means the use of administrative penalties for persons committing administrative violations, which result for these individuals in burdensome consequences of material, moral, personal or otherwise, and are imposed by authorized bodies or officials on the grounds and in the procedure established by norms of administrative law [14, P. 96]. D. Lukyanets believes that the institution of administrative responsibility is a set of norms that define the structure, principles and rules of functioning of the mechanism of realization by an administrative sanctions procedure of legal norms which have the form of penalties [15, P. 28]. In recent studies of national scientists it is noted that administrative
Ibid.
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responsibility is normative regulated, is state-required compulsory and is implemented in the specific procedural forms [16, P. 74]. The analysis of the works of specialists in the field of administrative law reveals the existence of different points of view to understanding the category of «administrative responsibility» which is caused by the diversity of this phenomenon and different approaches to understanding of law.
Features of administrative responsibility for violation of legislation of animal world are following: the basis of this responsibility is an administrative offence in the field of protection, use and recreation of the animal world; the presence of special means of influence, i. e. administrative sanctions, the most common form of which in this area is fine; it is used by the authorized state bodies and officials; it is manifested in the form of a more rapid response to the offense; the existence of a special procedure for its application; can be used in conjunction with the civil responsibility [2, P. 270].
According to article 88 of the Code of Ukraine on administrative offences, the illegal export from Ukraine or the import into its territory of objects of animal world, including Zoological collections, entails imposition of penalty to citizens from three to five non-taxable minimum incomes of citizens with confiscation of these objects or without such and for the officials — from five to seven non-taxable minimum incomes of citizens with confiscation of these objects or without such.
The same actions made to the types ofanimals listed in the Red book of Ukraine or to those, protection and use of which is governed by international treaties of Ukraine, shall entail imposing a fine on citizens from five to ten nontaxable minimum income of citizens with confiscation of these objects or without such and on officials — from seven to twelve non-taxable minimum incomes of citizens with confiscation of these objects or without such.
The obj ect of the offence is public relations concerning the established order of import and export of objects of animal world through the customs authorities of Ukraine.
The main normative legal acts regulating such relationship are: international agreements, in particular, the European Convention for the protection of animals during international transport (1968), the Convention on international trade in endangered species of wild flora and fauna under threat of extinction (1973), Convention on the conservation of wild flora and fauna and natural habitats in Europe (1979), Convention on the conserva-
tion of biological diversity (1992); the laws of Ukraine «On animal world» from 13.12.2001 № 2894-III, «On the Red book of Ukraine» of 07.02.2002 № 3055-III «On protection of animals from brutal treatment» of 21.02.2006 № 3447-IV «On environmental protection» from 25.06.1991 № 1264-XII «On veterinary medicine» of 25.06.1992 № 2498-XII; resolution of the Cabinet of Ministers of Ukraine dated 25.07.2007 № 953 «On approval of the Procedure for issuing permits for import and export of specimens of species of wild fauna and flora, certificates on traveling exhibitions, re-export and introduction of the specimens from the sea, which are objects of regulation of Convention on international trade in endangered species of wild flora and fauna under threat of extinction, concerning sturgeon fish and products made from it», dated 05.10.2011 № 1030 «Some issues of preliminary documentary control in check points through state control» and others.
Article 53 of the Law of Ukraine «On animal world» establishes the special competence of the Ministry of ecology and natural resources of Ukraine on approval of the rules of transboundary movements of objects of animal world. It should be noted that the legal regulation of social relations concerning the export from Ukraine or the import into its territory of objects of animal world has a number of problems. In particular, the order of the Ministry ofJustice of Ukraine from 08.10.2015 № 1915/5 had canceled the decision on state registration of the order of the Ministry of environmental protection and nuclear safety of Ukraine dated 08.09.1999 № 204 «On approval of Provisions on ecological control at border checkpoints and in the area of regional customs and customs». In order to strengthen environmental control at border checkpoints, improve legal regulation in the sphere of ecological safety and environmental protection new Provisions on environmental control at border checkpoints and in the area of regional customs and customs must be approved.
The objective side of the offense consists of the following: illegal export from Ukraine of objects of animal world, including Zoological collections; illegal import to the territory of Ukraine of objects of animal world, including Zoological collections; performing of mentioned actions against animals listed in the Red book of Ukraine or animals the protection and use of which is governed by international treaties of Ukraine.
The objective side is an important indicator of the degree of public danger of an administrative offense,
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determines the nature of the damage caused to the object of administrative-legal protection. However, the main value of the objective side is that it allows distinguishing the specific administrative offence from other offences [17, P. 236; 18, P. 220-221; 19, P. 23].
According to article 53 of the Law of Ukraine «On animal world» import to Ukraine and export abroad of objects of animal world is carried out according to the rules established by the Central Executive body, which provides forming of state policy in the sphere of environmental protection, except for genetically modified organisms. Illegal is the import and export of fauna objects which violates the rules for such actions.
Special national legal and international regulation determines the order of import into Ukraine and export abroad of objects of animal world under threat of extinction [2, P. 214-215]. Rare and under threat of extinction species of animal world listed in the Red book of Ukraine are subject to state registration in the Procedure of state accounting of rare and threatened species of flora and fauna listed in the Red book of Ukraine (order of the Ministry of ecology and natural resources of Ukraine dated 09.10.2012 № 486).
The subjects of the offense are the citizens and officials. The subjective part is characterized by guilt in the form of intent or negligence.
Ways of improvement of administrative responsibility for violations of legislation on animal world lie in the area of ensuring the inevitability of punishment of offenders, ensuring consistency between the degree of harm caused by the violation and the penalty for their violation that needs to make such violations economically disadvantageous [3, P. 497]. We should agree that current system of penalties does not fulfill its environmentally positive regulatory functions, and does not have sufficient educational and punitive functions because financial sanctions to offenders do not correspond to
the actual harm caused to the animal world [20, p. 148]. This fully applies to penalties for the illegal exportation from Ukraine and import into its territory of objects of the animal world.
CONCLUSIONS
The negative effects of illegal export from Ukraine and import on its territory of objects of the animal world pose a serious threat to biological diversity not only in Ukraine but throughout the world.
In order to improve the legal regulation of administrative responsibility in the field of protection, use and reproduction of animal world it is necessary to amend the Code of Ukraine on administrative offences regarding strengthening of administrative responsibility for illegal export from Ukraine and import on its territory of objects of the animal world.
To ensure effective environmental control at checkpoints across the state border, improvement of normative-legal regulation in the sphere of ecological safety and environmental protection it is essential to:
- approve Provisions on environmental control at border checkpoints and in the area of regional customs and customs;
- develop scientific methods and the appropriate regulatory framework regarding the prevention and control of spread of alien and invasive species in accordance with the Convention on the conservation of biological diversity;
- prepare and issue, in accordance with the Convention on international trade in endangered species of wild flora and fauna under the threat of destruction, the determinants of CITES specimens of selected taxonomic groups (mammals, birds, reptiles, arthropods, amphibians) for employees of State environmental inspection of Ukraine at border checkpoints.
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Information about the authors
Irina Albinovna Horodetska, Candidate ofJuridical Sciences, Associate Professor, Associate Professor of Department of Political Science and Law, Nizhyn Gogol State University
Address: 2, Hrafska Str., Nizhyn, 16600, Chernihiv region, Ukraine, tel.: +380 (4631)71967
E-mail: horodetska.ia@gmail.com
ORCID : http://orcid.org/0000-0001-5096-8632
