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Doc 8083
21 April 1998
Draft convention on the protection of the
environment through criminal law
Opinion1
Committee on the Environment, Regional Planning and Local Authorities
Rapporteur : Mr Tonu Reid Kukk, Estonia, Group of the European People's Party
A. Background
1. The Committee of Ministers has asked the Parliamentary Assembly to give its Opinion on the Draft Convention on the protection of the environment through criminal law2. The Assembly’s Committees on Legal Affairs and on the Environment, Regional Planning and Local Authorities have been entrusted with this task. This document3 takes into account the views expressed by Mr Gross (Switzerland, SOC), in his draft report to the Committee on Legal Affairs4.
2. The Rapporteur wishes to point out that the protection of the environment through criminal law is hardly a new item on the Council of Europe’s agenda. In 1972, the seventh Conference of European Ministers of Justice, noting that this issue was already being considered by the European Committee on Crime Problems, asked the Committee of Ministers to « propose criteria delimiting the scope of criminal law in this field ». In 1977, the Committee of Ministers adopted a Recommendation in which it invited member countries to consider adopting a number of measures with a view to protecting the environment. One such measure might be the « examination of criminal penalties for damage to the environment ». Lastly, in 1990, the seventeenth Conference of European Ministers of Justice recommended that the Organisation « develop common guidelines, in the form of a Recommendation or a Convention » in this field. In a way, one could claim that the groundwork for this draft convention was laid some twenty-five years ago.
3. In line with this mandate, an group of experts5 worked on this issue between October 1991 and November 1995. The draft convention it produced was submitted to the Parliamentary Assembly for an interim consultation in 1996, then sent back to the experts who added the final touching and took into account some of the Assembly’s remarks. The text that the Committee is considering now is the result of this lengthy procedure.
B. Need for environmental protection through criminal law
4. A wide range of measures is needed to protect the environment. Neither administrative measures nor civil liability can alone guarantee an adequate level of protection of the environment. For one, the response of the administration tends to be rather flexible. And as far as civil procedures are concerned, the right to start them lies in the hands of private persons. Therefore, a “weapon of last resort” is needed to deter and punish behaviours that are most harmful to the environment. As said, the Council of Europe’s Committee of Ministers has adopted two recommendations along these lines (Recommendations 28 of 1977 and 18 of 1988).
5. However, in spite of these recommendations, there exists in Europe today an enormous variety of criminal regulations concerning the protection of the environment. As a rule of thumb, the situation worsens as one moves from North to South and from West to East. Indeed, there is a widespread need to harmonise these regulations. The effects of such broad differences are not only of a legal character, but also economic and social.
6. For instance, in some countries such regulations can be found in their penal code, whereas others have enacted a special environmental code or even special laws. Furthermore, a specific kind of pollution can be considered as a crime in some countries, a misdemeanour in another, an administrative offence in a third country, etc. The elements which determine what is an offence vary greatly, in accordance with the different viewpoints described above. Professor Heine illustrated this by quoting an example : the same act of pollution can be punished with up to five years’ imprisonment in one country, and with a mere fine of up to 40,000 ECU in another.
7. In some European countries, the lack of compliance with an administrative regulation on environmental protection does not lead per se to criminal responsibility. It merely allows the administration to require compliance by a given deadline it sets. In such countries, only repeated or continuing violations give rise to criminal liability.
8. There are substantial differences, too, as to who is criminally liable. In some countries, this concerns any individual, whereas in other countries only people involved in industrial activities are subject to criminal liability for breach of environmental legislation. Not to speak of countries for which criminal liability is personal only and claim that corporate liability has never been foreseen in their legal systems, nor of the various constitutional and legal traditions found in the Council of Europe’s member countries.
9. As a result, whereas in some countries criminal law plays a prominent role in protecting the environment, in other countries it plays no role whatsoever.
7. For all these reasons, the Committee on the Environment, Regional Planning and Local Authorities welcomes the aims of the draft convention, i.e. to make it compulsory for signatories to introduce new elements in their criminal law provisions or modify their penal codes, in order to harmonise the European legislation in this field.
C. Comments on the draft convention
10. The convention emphasises the need for the establishment of criminal offences in the case of serious pollution or endangerment of the environment. Therefore, it focuses on the description of environmental offences and available sanctions. The convention deals as well with questions of criminal procedure, jurisdiction (cross-border pollution), and implementation (co-operation between national authorities and international co-operation). Special attention is attached to corporate liability issues.
11. Compared to other conventions, such as the convention on civil liability for damage resulting from activities dangerous to the environment (European Treaty Series no. 150), the draft convention defines two terms only, ie “unlawful” and “water”. However, as regards the term “environment”, most elements are clarified by the descriptions of the offences. As to other terms, such as ‘waste’, one should bear in mind that some of the possible signatories are bound by EU law in so far as their domestic legislation is bound to be interpreted in the light of EC regulations. It should be pointed out, too, that the explanatory report explains the most important terms.
Definition of criminal offences
12. The draft convention divides criminal offences into three groups, depending on how dangerous they are. Into the first category fall the most serious cases of pollution (ie, the discharge, emission or introduction of dangerous substances into air, soil or water, which causes death or serious injury to any person or creates a significant risk of causing death or at least serious injury to any person). For most European countries, acknowledging the so-called “autonomous offences” would be a very important step in the right direction. Otherwise, polluters who have complied with a licence would be immune from prosecution, as would industries whose polluting activity is not specifically banned in an existing regulation. Yet, neither regulations, however detailed, can foresee all sorts of polluting activities, nor does a licence grant the licensee an absolute right to do as he pleases. The Rapporteur wishes to stress that these provisions apply to crimes. Guilt or criminal intent, therefore, continue to be prerequisites for finding someone criminally liable under these provisions. “Strict liability” is not foreseen here. And criminal law being a weapon of last resort, only the most serious cases of pollution are covered by this provision.
13. Second-degree offences (art. 2. 1, b-e) occur when a law, an administrative regulation or a permit are infringed, and this leads to specific consequences (e.g. causing a specific risk). Compared to “first-degree” offences, a lower, more general risk suffices. They cover the unlawful discharge, the unlawful disposal of waste, the unlawful operation of a plant and the unlawful operation of hazardous radioactive substances, and aim at protecting human beings, protected monuments and other protected objects, such as property, animals and plants.
14. “First-degree” and “second-degree” offences are considered crimes when committed with intent or gross negligence.15
15. “Third degree” offences extend the scope of the draft convention to a wide range of environmental illegal acts, the so-called “abstract endangerment” offences. In other words, the violation of an administrative law or regulation or a permit suffices to impose criminal or administrative sanctions. Contrary to first and second degree offences, there are no further requirements. It is in this area that European countries have the widest differences as regards deterring and preventive measures. It should be up to the signatories to choose the most effective measures in line with their domestic legal tradition.16
16. In conclusion, the Committee on the Environment, Regional Planning, and Local Authorities takes the view that the real value of the draft convention is that it establishes criminal liability separate from administrative law, and that it provides protection against the endangerment of life, health, property and “res communes omnium”.
Sanctions
17. A clear difference is established between crimes proper (i.e., the so-called “first- and second-degree” offences) and other offences (“third-degree”). Signatories are forced to establish prison and financial penalties for first- and second-degree offences. As to third-degree offences, the parties inevitably need discretionary power to set up a system of sanctions in line with their domestic tradition. However, as a matter of policy, the convention supports the international trend to widen the spectrum of available sanctions. Special attention, for instance, is paid to the reinstatement of the environment (art. 8) and to seizure measures (art. 7).
Corporate liability
18. Most crimes against the environment are committed within the framework of a legal person. Yet, it becomes more and more difficult to identify a natural person who may be held responsible for an offence. It is therefore important that the draft convention supports the trend towards admitting corporate liability. Article 9, however, leaves it open to the parties to impose criminal or administrative sanctions or measures on legal persons.
19. This does not go far enough. When the group of experts published its conclusions in 1995, many countries refused to establish corporate liability on the grounds that it was foreign to their national legal system, which only admitted the “principle of ethical guilt” in respect of natural persons. Things, however, are changing fast. In October 1997, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions was completed. Article 2 forces all parties to the convention to “take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official”. This will affect at least some of the countries which two years ago objected to including a similar provision in the draft convention on the protection of the environment through criminal law. Therefore, the draft convention should be reviewed and brought into line with the latest developments in this field. The Committee fully supports the proposals made in this sense in the Committee on Legal Affairs’ draft Opinion.
Implementation
20. The prosecution of environmental offences faces a sea of trouble. Therefore, the Committee welcomes the fact that the convention forces the parties to make sure that authorities responsible for environmental protection co-operate with those responsible for prosecuting crimes against the environment. However, the Committee considers this rule too soft. The Committee notes the comments made in the draft convention’s explanatory memorandum about the serious differences in our member countries’ legal systems which apparently prevented them from accepting a more substantial commitment in this field. The Committee does not share this point of view and should like to see a stronger rule replace the present wording, for it is convinced that stronger co-operation between environmental protection agencies and prosecutors is necessary to protect the environment.
Rights for groups to participate in proceedings
21. The interests protected by this convention are of a highly collective character. The various form of pollution which the convention aims to fight do not only harm individuals, but mostly groups of people or specific values. A number of countries have thus allowed NGOs to participate in proceedings concerning environmental offences. The Committee is well aware that this is still highly controversial an issue, and that the debate is far from over as to which NGOs should be allowed to take part and in which cases. The same applies to the rights NGOs should be granted in this respect. Yet, as a matter of policy, the Committee believes that the Convention should take the lead in granting NGOs access to such proceedings. It therefore proposes that the draft convention be amended in order to make it compulsory for signatories to grant such access to NGOs.
D. Conclusion
22. The Committee is aware that the protection of the environment through criminal law is a multi-disciplinary subject which touches upon a number of basic questions regarding the constitutional, administrative, criminal and criminal procedure law of the signatories. It understands the concerns laid down in the explanatory report of the draft convention, particularly as regards the concern not to jeopardise the success of the draft convention by making it too coercive on its future signatories. It realises that this draft is the result of a very lengthy negotiation process and of the need to reach a broad consensus. However, the Committee also regrets the lack of enthusiasm shown by some member countries for the Council of Europe’s conventions.
23. Some of the draft convention’s key clauses are worded in a conditional manner, which actually grants signatories the right to opt out of them, thus weakening the document. This is especially true in the case of autonomous offences (Art. 3.3), confiscation measures (Art. 7.2), the reinstatement of the environment (Art. 8), and corporate liability (Art. 9).
24. In any case, the draft convention, if ratified, will lead to reforms in every country, so that criminal law plays a more important role in protecting the environment. Despite its many “opt-out” clauses, the draft convention represents a step in the right direction.
25. The Committee wishes to recall the fate of the Convention on Civil Liability resulting from activities dangerous to the environment, which to this day has been signed by nine member countries and ratified by none. The Committee hopes that this draft convention will not follow the same sad fate. On the contrary, it hopes that the Committee of Ministers will open the draft immediately for signature and ratification by member countries, and that the convention will enter into force as soon as possible.
26. The Committee fully supports the proposals for amendment submitted by the Committee on Legal Affairs. It is in the same constructive spirit that the Committee on the Environment, Regional Planning and Local Authorities wishes to submit the following suggestions to the Committee Legal Affairs regarding a few other amendments that, in its opinion, might further improve the text.
- Article 10
Delete paragraph 2
- Article 11
Replace the words “may, at any time, in a declaration addressed to the Secretary General of the Council of Europe declare that it will, in accordance with domestic law” by the word “shall”.
Reporting committee: Committee on Legal Affairs and Human Rights (Doc. 8056)
Committee for opinion: Committee on the Environment, Regional Planning and Local Authorities
Origin: Doc. 7883 and Reference No. 2218 of 22 September 1997.
Draft opinion approved on 21 April 1998.
Secretaries to the committee: Mrs Cagnolati-Staveris, Mr Grau Tanner and Mr Chevtchenko
2 See Doc 7883 of 16 July 1997 (letter from the Chairman of the Committee of Ministers to the President of the Assembly dated 7 July 1997).
The Committee wishes to thank Professor Guenther Heine of the University of Giessen in Germany for his outstanding assistance and contribution to the preparation of this Opinion.
See document AS/Jur (1998) 8 of 26 February 1998.
5 PC-EN : Experts committee on the protection of the environment through criminal law.
The Committee on the Environment, Regional Planning and Local Authorities issued a number of rather critical comments on the draft convention back in 1995. See Document AS/Loc (1995) 26 revised. However, the Committee stressed that the purpose of that document was not to prepare a formal opinion but to record the reactions of the committee at that stage. The Committee expressed its wish to be consulted again before the final text was open for signature.