Criminological Outlook of Overcoming Disproportionate Punishment in Environmental Crimes (original) (raw)
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Environmental crimes: Law enforcement issues
Caspian Journal of Environmental Sciences , 2020
An analysis of the statistics of registered environmental crimes indicates a clear disproportion between the real state of affairs in ecology and counteraction to such crimes. One of the reasons for this imbalance may be the difficulty in qualifying and proving the crimes in question. When applying the norms on environmental crimes, it should be borne in mind that the overwhelming majority of them are blanket. Along with the massiveness of environmental legislation, there are also actually criminal law issues that give rise to practical problems. These include determination of the form of guilt, the use of evaluative concepts, the need for qualifications in combination with other crimes, the establishment of a causal relationship. The most important are the following steps in the field of combating environmental crime: 1) when determining the form of guilt, along with the content of the act, the methods of its commission and other signs of the objective side, consider the sanction for their commission; 2) the spread of the practice of establishing specific rates for calculating the amount of damage instead of evaluative concepts to unify judicial practice and bring it to uniformity; 3) improvement of calculation methods and practice of compensation for damage resulting from environmental offenses; and 4) minimization of the practice of constructing truncated corpus delicti or concretizing the concept of "threat" in such structures.
Applying Criminal Penalties and Consequences in Enforcing Environmental Protection Compliance
Our present Environmental Laws adopting criminal sanctions as means of environmental protection compliance focus on punishing the lack of a permit or the violation of permit or other regulatory requirements and conditions set out by the Environmental protection agencies. The author argues that if the role of the criminal law is restricted to defining the conditions of an administrative permit, and the authorities at the same time determine the conditions of criminal liability, this may point to the fact that a more direct environmental protection by the criminal law, such as exists for traditional crimes, is more difficult to reach in achieving an environmental end. The paper highlights the serious weaknesses in this approach. To this end, the premise of the paper therefore is that we should have graduated approach to environmental crimes that are less dependent on administrative law, especially where a prohibited act has serious consequence of creating death, serious injury, or a significant risk of death or serious injury. When this is the case the author argued that it can lead to criminal liability irrespective of a violation of administrative obligations, making serious environmental abuse to be treated in the same as violators of traditional crimes. Thus, the main focus of this paper is how do we fit in the typology of environmental crimes to elicit environmental protection compliance?
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This paper aims to explores the provision of aggravating criminal sanction that protects environment in environmental legislation. By focusing on the four laws as its primary data source, this study employed doctrinal legal research. The results showed that the weight accorded to criminal sanctions in environmental legislation, has varied. The PPLH Law provides for the amplification of criminal threats directed at corporations by adding 1/3 (one-third) of the criminal sentence. Only companies are subject to the penalty aggravation provisions of the Mining Law, and they are only imposed with one-third of the maximum criminal provision of fines. In the PPPH Law, the imposition of criminal threats weight is simply related to the quantity component. If the culprit is a corporation or official, the criminal sanction aggravation is increased by one-third. In Plantation Law, if the offender is a corporate or a government official, then the criminal punishment is intensified. The environmen...
Punishment in environmental protection
Journal of Business Ethics, 1996
The fundamental character of a punishment is the subject of this paper. Based on the assumed function of a punishment (deterrent), a punishment has to be perceived and experienced to be an adverse result by the punished and the public. The first factor in particular means that the courts have to have flexibility to sentence a person to such a punishment that is experienced as such. The legal question becomes how this customization of a punishment is acceptable from an equality standpoint. In the field of environmental protection, the administrative process poses serious problems. There may be administrative proceedings that result in substantial economic losses for individuals and groups alike.
In both the United States and Europe, most environmental crime statutes focus on punishing disobedience to administrative rules and decisions. In most cases, the statutes do not require harm - or even a threat of harm - to the environment. Thus, convictions for these crimes vindicate mainly administrative values. Nevertheless, it is possible to define crimes such that environmental values are focal. This article suggests four models of environmental crimes. Purely administrative violations are at one end of a continuum, while crimes with no administrative predicates but serious environmental harm occupy the other end. Examples drawn from the United States and Europe illustrate each approach. After exploring the intricacies and challenges of each model, the article proposes a graduated punishment approach based on the described continuum. The article concludes with an evaluation of the extent to which current German, French, and federal U.S. environmental crimes fail to reflect the p...
Challenges in regulating environmental crimes
2017
Environmental crimes can be broadly defined as illegal acts that directly harm the environment. Often perceived as victimless and incidental crimes, environmental crimes frequently rank low on the law enforcement priority list, and are commonly punished with administrative sanctions which are themselves often unclear and minor. The paper is pointing to the relevance of the Directive 2009/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (ECD) which itself is not as an instrument of criminal law, as the provision on environmental liability can help prevent environmental crime by making perpetrators liable for consequences of their action and clean-up measures. The lack of legal certainty may also be a weakness in ECD which defines what constitutes an environmental crime by reference to a behaviour being unlawful under other directives. Also, it implies that the definition of environmental crime depends up...
Environmental crimes between soft and hard law
In recent years, environmental crime has emerged as a rising sector of organized criminality and as one of the major challenges to the enforcement of environmental law. The methods adopted by single countries to fight it differ significantly, but typically lacks effectiveness and appropriateness at all levels. At international level, debate over the adequate response to this issue has been ongoing during the last decades. This dissertation offers an overview of the problem, with a detailed analysis of the features of environmental crimes hampering their detection and prosecution. Afterwards, the European legislation on the topic has been analyzed, with particular reference to Directive 20008/99/EC on the protection of the environment through criminal law. In parallel, also the European policy to fight transnational organized crime has been addressed. The second chapter focuses on illegal traffic of waste, with an analysis of European and international legislation on the topic and an in-depth study of e-waste disposal. My research was primarily based on articles and publications, from which I drew my own conclusions. In addition, I got in touch with some European commissioners to have more detailed information on the Directives I studied and to ask their opinion on some of the subjects. Furthermore, I spoke with other experts in the field of environmental crime to discuss my ideas and have some suggestions. In my conclusions, I observed that current policies on environmental crimes are affected by various shortages, both for the inadequateness of the legislation and for its implementation and enforcement. I advanced some proposals to remedy to these weaknesses, ranging from the need to strengthen the enforcement of existing rules, to revising the legislation into force and prompt the harmonization of the penalties imposed to violators, to the hypothesis of a new international treaty on waste management and of a tailored policy for the fight to environmental crime.
International Journal of Law, Environment and Natural Resources, 2024
This study aims to describe the regulation of criminal acts of environmental pollution in Indonesian positive law and to analyze the responsibility for criminal acts of environmental pollution according to Law Number 32 of 2009. This study uses normative legal research in the form of library research using three types of legal materials, namely primary, secondary and tertiary legal materials, qualitative descriptive research, normative juridical research, statutory and conceptual approaches. The results of the study stated that the regulation of criminal acts of environmental pollution in Indonesian positive law is regulated in Law Number 32 of 2009 concerning the Environment. This law stipulates that if environmental pollution and damage has already occurred, it is necessary to take repressive measures in the form of effective, consistent and consistent law enforcement against environmental pollution and damage that has occurred so as to apply the principle of primum remedium criminal law. The crime of environmental pollution is not only imposed on individual perpetrators of environmental crimes, but also on corporations. In addition, also to customary law communities based on the Constitutional Court decision No. 35/PUU-X/2012 by using conditionality in recognizing the existence of indigenous peoples as legal subjects which are still maintained as long as in reality they still exist and their existence is recognized, and confirmation of their existence is stipulated by Regional Regulations..