Doc. 8056

2 April 1998

Council of Europe draft Convention on the Protection of the Environment through Criminal Law

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Andreas Gross, Switzerland, Socialist Group

Summary

At the end of our millennium, protection of the environment and how to implement it have become some of the most important issues to which solutions are urgently required. The Assembly expresses its concern about the environment and stresses the importance of criminal law as regards its protection. It furthermore emphasises the need for legal harmonisation in the field of criminalisation of detrimental acts and omissions and criminal liability of individuals and corporate entities.

It therefore considers the Convention on the Protection of the Environment through Criminal Law (Doc. 7883) as a framework to inspire adequate legislation in the penal field.

The Assembly proposes some amendments to the provisions of the Convention which are intended to strengthen and improve its wording.

It warmly welcomes the Convention even though the consequences of criminal law could only be considered as the last-resort weapon in society's armoury. The Assembly reiterates the importance of legislation to protect the environment effectively through administrative and civil law as well as through criminal law.

I. Draft opinion

1.        The Parliamentary Assembly reaffirms its great interest in saving the environment. It is convinced that criminal law has to play a most important role in the protection of the environment and that the Council of Europe member states need to pursue a common criminal policy towards this end.

2.        It warmly welcomes the draft Convention on the Protection of the Environment through Criminal Law1, which will provide a framework to inspire adequate legislation in the penal field.

3.        The aim of the draft Convention is to provide a European instrument on the criminalisation of acts and omissions detrimental to the environment and to establish the concept of the criminal liability both of individuals and of corporate entities.

4.        The draft Convention seeks to foster the harmonisation of national legislation in this field, as well as to oblige the future contracting parties to insert new provisions into their domestic criminal law or, where applicable, amend existing provisions.

5.        Among the considerations stated in the preamble to the draft Convention, the Assembly endorses, in particular:

6.        It expresses the hope that the draft Convention will soon be finalised by the Committee of Ministers and opened for signature and ratification.

7.        It is therefore in a positive and constructive spirit that the Assembly recommends the Committee of Ministers to introduce the following amendments in the draft convention with a view to strengthening and improving its text:

i.       in Article 1:

- replace the words "infringing a law" by "infringing the law".

- delete the words "aiming at the protection of the environment".

- replace the words "means groundwater and surface water" by "means all kinds of groundwater and of surface water".

ii.       in Article 2 (paragraphs 1 and 2), 3, 4, 5 (paragraphs 1 and 2), 9 and 10

- delete the words "adopt such appropriate measures as may be necessary to".

iii. in Article 2, paragraph 1.b

- add, after "lasting deterioration", the words "or serious temporary deterioration".

iv. in Article 2, paragraph 1

- add a new sub-paragraph f, starting with "the unlawful heating of water or air which causes, or is likely to cause … [to be completed]".

v. in Article 3

- delete paragraph 2.

- delete paragraph 3.

vi. in Article 5

- delete paragraph 4.

vii. in Article 6

- delete the words "adopt, in accordance with the relevant international instruments, such appropriate measures as may be necessary to enable it to".

viii. in Article 9

- delete paragraph 3.

ix. in Article 12

- delete the words "in accordance with the provisions of the relevant international instruments on international cooperation in criminal matters and with their domestic law".

x. in Article 17, paragraph 1

- delete the words "Article 3, paragraphs 2 and 3, Article 5, paragraph 4" and "Article 9, paragraph 3".

xi. after Article 17, paragraph 2

- add the following new sub-paragraphs:

and

II. Explanatory memorandum by Mr Gross

1.        It goes without saying that the protection of the environment has many different angles and that striking an acceptable balance between the preservation of the environment and of natural resources and the maintenance of public health, on the one hand, and economic progress and comfort, on the other hand, is a very complicated, difficult and, indeed, delicate task. At the end of our millennium, protection of the environment and how to implement it have become some of the most important issues to which our modern societies must find adequate solutions. It is clear that the legislator has an important role to play here as the protection of the environment normally requires an integrated approach, which comprises administrative law (the issuing of regulations, granting of operating permits and licences, carrying out of inspections, etc.), civil law (especially the law of tort) as well as criminal law.

2.        The European Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, opened for signature and ratification by the member States of the Council of Europe and by the European Community on 21 June 1994, represents an initial effort to ensure the compensation of damage caused to the environment, people or property by laying down the principle of the civil liability of operators in the event of such damage.

3.        But neither purely administrative responses to breaches of the law (withdrawal of a permit or licence) nor conventional civil procedures necessarily guarantee effective legal protection of a preventive nature. Hence, the obvious value of a criminal law instrument, which could sanction serious acts or omissions detrimental to the environment and to public health and ensure that environmental damage is repaired. Because of its drastic legal consequences, criminal law can be regarded only as a last-resort weapon in society's armoury: not until all other weapons have failed should the State brandish criminal law as a means of enforcement. The other key role of criminal law in the environmental field is to act as a deterrent and exert decisive pressure to ensure compliance with the law.

4.        Indeed, this was the purpose of two texts adopted by the Council of Europe's Committee of Ministers: Resolution (77) 28 on the contribution of criminal law to the protection of the environment, Recommendation (88) 18 concerning liability of enterprises having legal personality for offences committed in the exercise of their activities, and Resolution No. 1 of the European Ministers of Justice (1990) on the protection of the environment through criminal law2.

5.        The Parliamentary Assembly itself - in Recommendation 1192(1992) on the United Nations Conference on Environment and Development, its outcome and implications for Europe - recommended that the Committee of Ministers "intensify the Council of Europe's programme of action in the field of environmental protection" by such means as "preparing other legal instruments on environmental protection through penal law as well as deploying other necessary efforts to harmonise national environmental legislation".

6.        It was Resolution No. 1 of the 17th Conference of European Ministers of Justice (5-7 June 1990) that provided the starting point for the work of the Committee of Experts on the Protection of the Environment through Criminal Law (PC-EN), which began in October 1991 and ended in November 1995.

7.        Subsequently, after having been declassified, the draft convention was transmitted to the Committee on Legal Affairs and Human Rights and to the Committee on the Environment, Regional Planning and Local Authorities which were invited to give their comments and propose amendments. Both Committees availed themselves of this opportunity and a number of our observations were taken into account. Then the European Committee on Crime Problems finalised the text of the Convention and forwarded it to the Committee of Ministers for adoption. The Committee of Ministers followed the request, made jointly by the Chairpersons of the two Assembly committees that the final text be formally referred to the Assembly for an opinion.3

8.        Before drawing up its draft opinion on the Convention, the Committee on Legal Affairs and Human Rights, at my proposal, decided to hear a few experts on the way the Convention might be applied at national level. This hearing took place on 15 December 1997 in Paris, with the participation of Dr Ettler (Switzerland), Professor Heine (Germany) and Professor Radecki (Poland). This discussion and the working papers submitted by Dr Ettler and Professor Radecski proved to be very useful for the preparation of this report4.

9.        The aim of the draft Convention is to provide a European instrument on the criminalisation of acts and omissions detrimental to the environment and to establish the concept of the criminal liability both of individuals and of corporate entities. The draft convention seeks to foster the harmonisation of national legislation in this field, as well as to oblige the future contracting parties to insert new provisions into their domestic criminal law or, where applicable, amend existing provisions.

10.        The draft convention comprises the following main provisions:

- definitions (Article 1)

- the designation of offences (Articles 2: intentional offences; Article 3: negligent offences and Article 4: others);

- the establishment of the jurisdiction of national courts (Article 5);

- the sanctions (Articles 6, 7 and 8);

- the principle of the criminal liability of corporate entities (Article 9);

- the principle of the co-operation of the authorities within each State Party, including a right to information (Article 10);

- the principle of participation by groups and associations as third parties in criminal proceedings (Article 11);

- the principle of international co-operation between the States Parties in the investigation and prosecution of criminal offences (Section III, Article 12);

- final clauses (Section IV, articles 13 to 21).

11.        The Convention only gives definitions of the words "unlawful" and "water". Explanations of some of the other concepts used in the Convention can be found in the explanatory report to the draft Convention. In addition, definitions given in existing conventions or European directives might be used to define such terms as "damage", "pollution" and "waste" as well as – and indeed above all – the concepts of "hazardous waste" and "dangerous activity". There is no definition of "the environment". Yet one must realise that much must be left to the national legislator and to the national judges to attach the correct meaning to such notions. Seen from this point of view, not defining these notions may be preferable to anodyne, misleading or incorrect definitions. If one considers that hardly anything is absolute in environment protection, it more often than not must be determined by the circumstances of each specific case what is "dangerous", what is "pollution", what is "damage done to the environment", etc.

12.        In the next chapter of this explanatory memorandum, as well as in the draft opinion itself, some proposals for amendments to the draft Convention are made, which include the definitions as well as some of the other items listed below.

13.        The draft Convention has no doubt great merit for defining the offences against the environment. There are three articles. Article 2 deals with offences committed intentionally, Article 3 with those committed with negligence or gross negligence and Article 4 deals with other criminal offences or administrative offences.

14.        Surprising as it may seem, many criminal codes of our member States do not contain provisions aiming at the protection of the environment. Thus the environment as such is not included as a protected object in the provisions of the Swiss Criminal Code which, for example, in its article on the contamination of drinking water (section 234), indirectly protects the ground water from which drinking water is drawn, when the ground water is the source of supply. When this is not the case, the provision however provides no general protection for the ground water. The value of the draft Convention is therefore precisely that it recognises the importance of the environment and the need for its direct protection under criminal law. Seen in this light, the establishment of autonomous offences in respect of the environment must be seen as a very important step which is to be followed by the contracting States under their national law.

15.        Perhaps I should add that some of the new member States of the Council of Europe have made tremendous efforts these last years to overhaul their legislation with a result that some of them have very modern laws adapted to the needs of today. Thus the Polish Constitution contains several articles on the environment and the Polish Criminal Code, which was passed in 1997 and came into force on 1 January 1998, contains a special chapter XXII on criminal offences against the environment composed of eight provisions which have been reproduced in the report by Professor Radecski (see my Introduction above). However, it is unlikely that any country will ever be able to list all penal provisions dealing with environmental matters in its criminal code. This is not the case for Poland either, which has criminal offences listed in special acts, such as the Water Act of 1974, the Fishing Act of 1985, the Mining Act of 1994, the Hunting Act of 1995, the Act on Waste of 1997 and the Act on Animal Protection of 1997. Minor offences are listed in the Petty Offences Code of 1971, which include petty offences against the environment and one may add other legislation which also has an important impact on the environment. For instance, speed limits for cars may have been introduced to promote road safety; they also may reduce pollution.

16.        Member States will find that the incorporation into their national law of the provisions of the draft Convention - whether they ratify or not - may help to make their criminal law provisions on the protection of the environment much more consistent than they are today.

17.        This Article has the merit that it provides for extra-territorial application of national criminal law. Thus a national jurisdiction of a contracting State is competent to try its nationals if the offence is punishable under criminal law where it is committed or if the place where it is committed does not fall under any territorial jurisdiction at all.

18.        In its section 2 this Article provides for the principle of aut extradere aut judicare ie if a State does not extradite it should try the offender itself.

19.        Sanctions are listed in Article 6 and include imprisonment and fines and may, in addition, include the reinstatement of the environment. The latter provision is elaborated in Article 8.

20.        Article 7 deals with confiscation measures.

21.        The draft Convention is a framework convention and requires further elaboration by the national legislator who may use, practically without major change, the definition of the offences listed in Articles 2, 3 and 4, but who will still have to provide the amounts of the fines foreseen and the length of prison sentences. Sentencing is a difficult problem and one knows that there are great differences among Council of Europe member States. Thus Professor Heine quoted several examples during the above-mentioned hearing. For example, for the same offence of water pollution German courts could impose a five-year prison and Swiss courts a three-year prison sentence, while Greek or Turkish courts could only impose fines.

22.        Article 9 of the draft convention provides that criminal or administrative sanctions or measures may be imposed on legal persons on whose behalf an offence against the environment has been committed by their organs, by members thereof or by another employee.

23.        This is one of the most important provisions of the draft Convention. The commentary to the draft Convention states that "it is a fact that a major part of environmental crimes is committed within the framework of legal persons, while practice reveals serious difficulties in prosecuting natural persons acting on behalf of these legal persons." This was confirmed by the experts the Committee on Legal Affairs and Human Rights heard at its hearing. An example given was a fire in a chemical depot of Sandoz in Schweizerhalle, near Basel, in the late 1980s, where it had been impossible to find out which person had been responsible for the (criminal) negligence that caused the fire. Thus no one has ever been punished for the grave pollution of the Rhine which had resulted from

it. In addition, we have been told that some corporations are organising their management policies in such a way that no individual would ever be responsible for criminal negligence, thus emasculating criminal law. The introduction of corporate criminal liability is therefore a must if one wants criminal law to be effective in the protection of the environment.

24.        The concept of criminal liability of companies was first introduced in some of our member States for economic crimes, such as the non-respect of anti-trust or price regulations. In recent years some member States have introduced it for offences against the environment, but it is by no means accepted in all of our member States. In France, the concept of the "responsibilité du fait d'autrui" is quite successful.

25.        Although it is difficult to say that a company could be "morally reprehensible" it could nevertheless commit morally reprehensible acts, which could then be sanctioned by a fine.

26.        Article 9 of the draft Convention, in its paragraph 2, rightly adds that the criminal liability of a corporate body does not exclude criminal proceedings against natural persons. Thus, in the case of serious pollution caused by a company, the company could be fined, whereas some of the directors or employees could, in serious cases, be imprisoned.

27.        There is another reason why criminal liability of corporate bodies is important and that is that offences against the environment are quite often complicated and that the perpetrators defend themselves very well, availing themselves of all possible means of defence. At the hearing, the Committee was told by Professor Heine that even in Germany it was very difficult to get convictions: out of 35,000 registered criminal acts detrimental to the environment every year only 10% ended in convictions.

28.        The draft Convention speaks about "legal persons" without defining them. We hope that this concept will be used in its widest sense, including also semi-public or even public bodies such as municipalities. They too may be among the very serious polluters!

      6.       Rights for groups to participate in proceedings – Article 11

29.        Group action or class action is a concept which was developed, especially in the United States, and enables associations and other organisations active in environment protection to take part in criminal proceedings. The principle is still to be developed further in Europe and the conventional text in Article 11 is not compelling. Strictly speaking, in its present wording, it is quite superfluous since it is obvious that any member State may address a declaration to the Secretary General of the Council of Europe with any message it wishes, but at least the idea is mentioned. This report is not proposing any amendments to strengthen this article, but nevertheless expresses the view that member States should develop this concept. Quite often environmental organisations, which are specialised in a certain field, may find out about certain offences against the environment and have ample documentation about them which could be very useful in any criminal proceedings.

30.        In the opinion of the Committee on Legal Affairs and Human Rights, the definition given of the word "unlawful" in Article 1a. is not very useful. There is little need to define such a well-known legal concept, but the way in which it is done is rather restrictive. For instance, it would have been better to speak about "infringing the law" rather than "infringing a law", so as to indicate that the law may be wider than legal statutes only and may include case-law and doctrine.

31.        It is proposed to delete, in sub-paragraph a. of Article 1, the words "aiming at the protection of the environment" since many regulations may be protecting the environment, whilst having been drawn up for other reasons, such as public health, road safety, economic reasons, etc.

32.        The definition of "water" in Article 1b. would gain if one were to add the words "all kinds of" before "ground water" and the word "of" before "surface water".

33.        Examples are not usually given in legislative texts and when there is an enumerative list "including the water of lakes, rivers, oceans and seas" one may wonder whether these are just examples to which other surface water may be added or whether they exclude such man-made surface water as canals or gravel pits. On the other hand, it may be a good thing to list the oceans and seas in this definition to make clear that the concept of water is not limited to inland and territorial waters. These things may be more clearly expressed in the commentary, but the Committee is not proposing any amendments on this point.

      2.       Article 2: Intentional offences

34.        It is proposed to delete, in the first line of paragraph 1 and the first line of paragraph 2, the words "adopt such appropriate measures as may be necessary to", since they seem to be entirely superfluous.       This amendment will also be made for a number of other provisions of the draft Convention.

35.        In paragraph 1b. one may add the words "or serious temporary deterioration" after the words "lasting deterioration". It is felt that if one limits oneself to the concept of lasting deterioration there will be a good chance the offender escapes punishment since he may state that the environment itself normally has the capacity to restore itself and that it may be difficult to prove that the deterioration will last forever.

36.        Finally, it is proposed to add a new sub-paragraph to Article 2 para. 1, which should start with the following words "f. the unlawful heating of water or air which causes …".

      3.       Article 3: Negligent offences

37.        Offences against the environment will quite often be committed out of negligence, as was the case with the Sandoz fire I mentioned above. Requiring that offences must be committed with gross negligence will make it much more difficult to sanction the perpetrators. It is therefore proposed to delete sub-paragraph 2 of Article 3.

38.        Similarly, the Assembly may propose in its opinion to delete paragraph 3, which would have the result of excluding the possibility of condemning perpetrators for negligence in the cases listed in this paragraph.

39.        Paragraph 4 of Article 5 provides for the possibility to exclude paragraphs 1c. and 2 of this Article. However, each of these provisions is very important. They contain principles which have been recognised in the Council of Europe on many previous occasions and they have their place in the present Convention. Paragraph 1c. deals with extra-territorial application, which is very important in environment protection and paragraph 2 deals with the principle that a State should establish its own jurisdiction over a criminal offence if it is not prepared to extradite the alleged offender.

40.        For these reasons it is proposed to delete paragraph 4 of Article 5.

41.        Here it is proposed to delete the words "adopt, in accordance with the relevant international instruments, such appropriate measures as may be necessary to enable it to", which seem quite superfluous.

42.        As explained above, criminal law can only be effective for the protection of the environment if it includes the criminal liability of corporate bodies. If one leaves such liability out of one's penal system it will hardly be effective for environment protection. The criminal liability of legal persons should therefore be considered as belonging to the hard core of the Convention and it is therefore proposed to delete paragraph 3 of Article 9 which would allow for a reservation in this field.

43.        It is proposed to delete the words: "in accordance with the provisions of relevant international instruments on international cooperation in criminal matters and with their domestic law", which seem to be quite superfluous, especially as the words "the widest measure" in the same Article can only mean the widest possible measure.

44.        The draft Convention will only be effective if it provides for adequate protection of the environment through criminal law and if there is a fixed set of rules to which all contracting Parties should abide. For those reasons, the number of reservations listed in the Convention should be reduced to a minimum. In amendments proposed above it has already been stated that it would not be desirable for reservations to be made to Articles 3, 5 and 9 of the draft Convention and for that reason the following words should be deleted in Article 17 para. 1:

There are also amendments proposed in the preliminary draft opinion:

a)        to limit the number of reservations a Contracting State may make to a maximum of two; and

b)        to introduce the concept of temporary validity of reservations which might be made for three years maximum and must then be renewed or, otherwise, automatically lose their validity.

45.        The Assembly welcomes the draft Convention and expresses the hope that it will soon be finalised by the Committee of Ministers and opened for signature and ratification by member States. It contains, in fact, a very valid set of principles on which the protection of the environment through criminal law should be based. From the studies the Committee on Legal Affairs and Human Rights has carried out it appears that even those member States which are quite advanced in their legislation in this field, would draw considerable benefit from introducing the provisions of the draft Convention into their national law. In addition, the draft Convention would have the advantage that it would harmonise the laws of the contracting States.

46.        No doubt other means for the protection of the environment may be or are more useful and effective than criminal law. Yet criminal law has an important place as one of the instruments which one needs in what has become one of the most important challenges of the end of this century and – no doubt – of the century to come. The Committee on Legal Affairs and Human Rights has looked very critically at the Convention and is proposing a number of amendments. These amendments have been drawn up in a constructive spirit and they are meant to reinforce the Convention and to make it the important European instrument it should be. Although these amendments might make it somewhat more difficult for some of our member States to ratify the Convention, there seems to be little use in preparing a common denominator of what already exists in practically all of our member States. It is thus expected that some of these States will have to make a certain effort to comply with the Convention. Yet the Committee on Legal Affairs and Human Rights believes that all member States should be able to comply with the draft Convention – even in its amended form – in a period of maximum five years after its opening for signature and ratification.

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Doc 7883, Reference No. 2218 of 22 September 1997

Draft opinion adopted unanimously by the committee on 23 March 1998

Members of the Committee: MM Hagĺrd (Chairperson), Schwimmer, Bindig, Jansson (Vice-Chairpersons), Mrs Aguiar, MM Ahlmann-Ohlsen, Akçali, Arzilli, Bartumeu Cassany, Besostri, Bulic, Clerfayt, Columberg (alternate: Gross), Contestabile, Dees, Demetriou, Mrs Dumont, MM Enright (alternate: Daly), Fogaš, Forni, Mrs Frimansdóttir, MM Frunda, Fuhrmann, Fyodorov, Mrs Gelderblom-Lankhout, Ms Jäätteenmäki, MM Jaskiernia, Jeambrun, Kelam, Lord Kirkhill, MM Kostytsky, Mrs Krzyzanowska, MM Loutfi, Magnusson, de Marco, Martins, Marty, McNamara, Mészáros, Micheloyiannis, Mozetic, Nastase, Németh, Pantelejevs, Pavlov, Mrs Plechatá, Mrs Pobedinskaya, MM Pollo (alternate: Minorarolli), Polydoras, Poppe, Rippinger, Robles Fraga (alternate: Lopez Henares), Rodeghiero, Simonsen, Solé Tura (alternate: Mrs Calleja), MM Staciokas, Lord Steel, MM Sungur, Symonenko, Tahiri, Vishnyakov (alternate: Kovalev), Vyvadil, Weyts, Wittmann, Mrs Wohlwend.

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Mr Plate, Ms Coin and Ms Kleinsorge

1 See Doc. 7883

2 See the report presented by the German Minister of Justice at the 17th Conference of European Ministers of Justice (Istanbul, 5-7 June 1990) - Document MJU-17(90)1.

3 See Doc 7883: letter from the Chairman of the Committee of Ministers to the President of the Assembly, dated 7 July 1997, containing the text of the draft convention and of the draft explanatory report.

4 Documents AS/Jur (1997) 54 and AS/Jur (1997) 53, available on request from the secretariat.