Doc. 8274

30 November 1998

Convention on the protection of the environment through criminal law

Communication from the Committee of Ministers

Letter from the Chairman of the Ministers' Deputies to the President of the Assembly dated 4 November 1998

Dear Madam President,

I have the honour to inform you that during the 639th meeting (7 – 9 September 1998), the Ministers’ Deputies adopted the text of the Convention on the protection of the environment through criminal law and agreed to open it for signature on the occasion of the 103rd Session of the Committee of Ministers (4 November 1998). The Parliamentary Assembly has been consulted on the draft Convention twice: first, in the course of the drafting procedure in early 1995, before the adoption of the text by the European Committee on Crime Problems (CDPC) and again, in Spring 1998 before the adoption of the text by the Ministers’ Deputies. This second opinion (N° 204 (1998)) was adopted by the Assembly on 23 April 1998 and contained a number of proposals for amendment.

At the outset, I would like to express the appreciation of the Committee of Ministers for the constructive and thought-provoking suggestions which the Assembly kindly offered to improve the Convention and which were seriously considered. Some of the issues raised by the Assembly were also discussed previously by the expert committee and the CDPC.

In summary, one of the Assembly’s recommendations was accepted by the Deputies and several others were found very interesting. In this connection, I wish briefly to explain the reasons why the Deputies have or have not accepted the different proposals made by the Assembly :

Article 1 :

- the Deputies could not follow the first two suggestions of the Assembly concerning the definition of « unlawful » because they would result in considerably widening its scope. The Deputies clearly wanted to restrict this definition by referring to only those of the three types of legal instruments mentioned (laws, regulations, individual decisions) which, because they have a direct bearing on the protection of the environment, could give rise to violations that deserve criminalisation. If the Assembly's proposals had been accepted, the specific legal basis of the violations would have disappeared, thus creating further difficulties for prosecutors to prove the illegal nature of an activity.

- the Deputies accepted the amendment of the Assembly aiming to replace the words "means groundwater and surface water" by "means all kinds of groundwater and of surface water" : the words suggested by the Assembly made the meaning of the definition more explicit and strengthened the scope of protection offered by the Convention.

      Article 2 :

- the Assembly proposed concerning this Article as well as Articles 3, 4, 5, 9 to delete the words "adopt such appropriate measures as may be necessary" . The Deputies could not agree on this suggestion as it would be contrary to a long-standing practice in the Council of Europe, on two accounts : this standard language is used in all conventions criminalising behaviour or imposing other obligations on States and, more importantly, it allows flexibility for States in deciding through which legislative or other action they implement the obligation. The deletion of the words in question would oblige States to systematically adopt new criminal law provisions, whereas some may wish to amend existing legislation or classify administrative offences as criminal ones.

- the Deputies could not agree to adding "or serious temporary deterioration" in paragraph 1.b, as proposed by the Assembly, because it would enlarge the scope of the offence to pollution-cases where both the time-element ("temporary") and the degree ("serious") relating to the deterioration could possibly give rise to serious problems of interpretation. The original text refers to "lasting deterioration", which was interpreted by the authors of the text as meaning "considerable period of time, but not forever".

- the Deputies could not agree to adding a new sub-paragraph which would extend the scope of the draft Convention to a new type of behaviour (« unlawful heating of water or air »). After some discussion concerning the kind of modus operandi meant by this proposal, the Deputies felt that other sub-paragraphs, e.g. 1.b would cover most possible cases of the Assembly’s proposal.

      Articles 2 , 3, 5, 9 and 10

- the Deputies were not in a position to accept the proposals of the Assembly, i.e. the deletion of the reservation possibilities, since this proposal would unduly restrict the right of States to make reservations. Though the Assembly's proposal has the advantage of ensuring uniform application of the two provisions concerned in the Convention, it entails the risk that States which would normally ratify the Convention - because their obligations arising from it can be adjusted to their national laws through the reservations - will not do so, or will only do it after a lengthy delay. In general, the Deputies are in favour of limiting the number of reservations in a Convention, but in this particular case they found that cutting reservations would seriously jeopardise the perspectives of ratification.

      Article 6

- the Assembly proposed to delete a part of the sentence, i.e. "adopt, in accordance with the relevant international instruments, such appropriate measures as may be necessary to enable it to". The Deputies could not agree to this proposal because it had been inserted explicitly by the authors of the Convention to ensure the compatibility of Article 6 with other international instruments, in particular the United Nations Convention on the Law of the Sea (UNCLOS). The latter imposes only pecuniary sanctions for certain environmental violations and a regional treaty drafted after the adoption of UNCLOS should not contradict its provisions.

      Article 11

- the Deputies were not in a position to agree to the Assembly's proposal which aimed at making this provision, drafted as an "opting-in" clause in the text, a mandatory one. Such a mandatory provision was regarded by the authors of the Convention as too far-reaching, given that in practice only one or two member State(s) could have complied with it. This provision was inserted more to highlight the responsibility of the public at large and of various NGO's than to impose a new obligation on States. It therefore has a more symbolic than legal value. A mandatory provision would prevent a number of States from signing up to the text.

      Article 12

- the Assembly's proposal aimed at shortening the text by deleting "in accordance with the provisions of the relevant international instruments on international co-operation in criminal matters and with their domestic law". The Deputies could not agree to this suggestion because this deletion would disassociate States' obligation to provide assistance from existing international and national arrangements, whereas this was a compromise found by the authors of the draft Convention, i.e. to rely on existing channels of international co-operation and not to create new ones. The Assembly's proposal would need to be supplemented by a detailed self-contained chapter on international co-operation, which neither the authors of the text, nor the CDPC would have supported.

      Article 17

- the proposed deletions in paragraph 1 were the direct consequence of previously suggested amendments. Since these amendments were not accepted, paragraph 1 had to remain unchanged.

- the Deputies also could not support the Assembly’s proposals to limit, both in number and in duration (though renewable), the reservations allowed under the Convention. These proposals obviously need careful consideration, because they seriously limit the flexibility States may wish to have in implementing the Convention. Furthermore, experience with other treaties concluded within the Council of Europe containing similar provisions shows that States tend to accept that other Parties renew their reservations that had been limited in time, even belatedly, thus depriving such provisions of a part of their scope.

I hope these clarifications are helpful.

...

Signed:

Dimitri Constas

Chairman of the Ministers’ Deputies