THE CONVENTION ON THE PROTECTION OF THE ENVIRONMENT THROUGH CRIMINAL LAW
:
LEGISLATIVE OBLIGATIONS FOR THE STATES
Por Jorge Luis COLLANTES
ABSTRACT
A very important development in the international law of the environment is The Convention on the Protection of the Environment through Criminal Law (Strasbourg, November 4, 1998). Even though the Convention has been concluded at the Council of Europe, interestingly it is open to signature for Non-member States of this regional international organization.
As a non-self-executing treaty, it holds legislative obligations about criminal and procedural criminal law. Therefore, the Convention determinates the jus punendi of the states and it is a harmonising mechanism of environmental criminal law of the States.
With respect to criminal law, the convention tipifies intentional and negligent offences. The sanction available shall include imprisonment, corporative liability and pecunary sanctions and may include reinstatement of the environment.
With Respect to procedural law, the convention foresees the territorial, flag, national and aut dedere aut judicare principles. Moreover, this facilitates the participation of citizens in a process (actio popularis) and intensifies the international judicial cooperation.
On the other hand, The Convention does not make reference to international relapse and it does not allude to old problems as inmunity and transborder pollution.
SUMMARY: Introduction.I. Purpose of this Paper. II. Recognizing the Ultima Ratio Principle and Criminal Law Intervention.III. Criminal Policy and Legislative Activity as an International Obligation.IV. Legislative Obligations in Domestic Criminal Law.4.1. Tipicity.4.1.1. Intentional Offences.4.1.2. Negligent Offences.4.1.3. Other Criminal Offences or Administrative Offences.4.1.4. Criminalizing the Risk. Punish without Damage?.4.2. Legal Consequences for Environmental Offences.4.2.1. Sanctions . 4.2.2. Confiscation Measures.4.2.3. Reinstatement of the Environment.4.2.4. Corporate Liability.V. Legislative Obligations in Domestic Procedural Criminal Law.5.1. Establishing of Jurisdiction.5.1.1. Territorial Principle .5.1.2. Flag Principle.5.1.3. Nationality Principle.5.1.4. Aut Dedere Aut Judicare Principle.5.2. Rights of Groups to Participate in Proceedings (Actio Popularis).5.3. Co-operation between Authorities.5.4. International Co-operation.VI. Territorial Application of the Convention.VII. Conclusions .References.
Introduction
The Convention on the Protection of the Environment through Criminal Law (Strasbourg, November 4, 1998) is the first international convention to criminalise acts causing or likely to cause environmental damage and it is a very important event in the development of environmental criminal law. Nowadays, States protect the environment through criminal law (1); but from a global point of view, the criminal protection is disorderly because some cases of environmental criminality causes damages independently of the political or territorial organization of the international community.
This Convention is a consequence of the adoption of Resolution 1 by the 17th Conference of European Ministers of Justice (June 1990, Istanbul). Following this resolution, the Committee of Ministers of the Council of Europe established a new select committee of experts in 1991 under the name of “Group of Specialists on the Protection of the Environment through Criminal Law (PC-S-EN)”. Subsequently, the Committee was transformed in a traditional Committee of Experts. In October 1991 it started its work and completed it at December 1995, holding seven plenary and ten working group meetings (2) . At its first meeting (October 1991), the Committee decided to draft a binding international treaty. The Committee adopted the Draft Convention and the Draft Explanatory Report (3) relating thereto at its last meeting (December 1995), which were then transmitted to the Criminal Committe of Crime Problems for its approval. In 1996, the Draft Convention and its Explanatory Report were approved by this and adopted by the Committee of Ministers. The Committee of Ministers adopted the Convention while taking into account the observations made by the Parliamentary Assembly, which was consulted. Finallity, the Convention was opened for signature of States in November 4, 1998.
The Convention is structured in four sections and, for its content, it is a Non-self-executing treaty (it holds legislative obligations for the States). The first Section, is dedicated to the “use of terms”, it indicates that for the purposes of this Convention: a)“unlawful” means infringing a law, an administrative regulation or a decision taken by a competent authority, aiming at the protection of the environment; b)“water” means all kinds of groundwater and surface water including the water of lakes, rivers, oceans and seas (Article 1). Section II makes reference to “Measures taken at national level” (4) ; Section III to “Measures to be taken at international level” (5); and, finally, Section IV to “Final clauses” (6) .
Even though the Convention has been concluded at the Council of Europe, interestingly it is open to signature for Non-member States of this regional international organisation (Articles 13.1 & 14). It shall enter into force on the first day of the month following the expiration of a period of three months after the date on which three States have expressed their consent to be bound by the Convention (Article 13.3).
With respect to the relationship with others conventions and agreement, this Convention does not affect the rights and undertakings derived from international multilateral conventions concerning special matters (Article 16.1). The Parties to the Convention may conclude bilateral or multilateral agreements with one another on the matters dealt with in this Convention, for the purposes of supplementing or strengthening its provisions or facilitating the application of the principles embodied in it (Article 16.2). And, if two or more Parties have already concluded an agreement or treaty with respect to a subject which is dealt with in this Convention or, otherwise, they have established their relations with respect to that subject, they shall be entitled to apply for that agreement or treaty or to regulate those relations accordingly, in lieu of the present Convention, if it facilitates international co-operation (Article 16.3).
I. Purpose of this paper
The purpose of this paper is, on the one hand, to describe the legislative obligations for the States in criminal matters derived from the convention the Convention and, on the other hand, to evaluate its possible impact in environmental criminal law.
II. Recognizing the Ultima Ratio Principle and Criminal Law Intervention
In attention to ultima ratio principle, criminal law is the last legal weapon to defend the interests of society (7). The Convention recognises the ultima ratio criminal law principle in the Preamble claiming that “whilst the prevention of the impairment of the environment must be achieved primarily through other measures, criminal law has an important part to play in protecting the environment”. Along this line, intervention of criminal law plays an important role to control large-scale, small-scale, and individual polluters because it supports risk-balancing by the state, helps to prevent further environmental destruction, and avoids over burdening civil and administrative law with criminal provisions. Therefore, the importance of criminal responsibility is that it provides added incentive to refrain from harmful conduct by emphasizing its culpable character, and, in many cases, by allowing more stringent enforcement measures or penalties to be imposed (
.
III. Criminal Policy and Legislative Activity as an International Obligation
Criminal policy is the sector in politics which deals with delinquency through criminal law; that is to say, that it refers to the legal means employed or that will be employed or that willbe employed deal towards criminality. Thus, criminal policy is the orientation of criminal law and all criminal law is oriented by a concrete criminal policy (9).
On the other hand, about the relationship between obligations of States and municipal law, the law in this respect is well settled. A State cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for an alleged breach of its obligations under international law. The acts of the legislature and other sources of internal rules and decision-making are not to be regarded as acts of some third party for which the state is not responsible, and any other principle would facilitate evasion of obligations (10). Therefore, arising from the nature of treaty obligations and from customary law, there is a general duty to bring internal law into conformity with obligations under international law (11).
In connection with this little exposition, the Preamble of the Convention indicates that its ratio is the “need to pursue a common criminal policy aimed at the protection of the environment”. It is corroborated in different articles because the Convention constantly repeats that “Each Party shall adopt such appropriate measures as may be... ”. In this way, the legislative activity is the instrument which the States will utilise to pursue a criminal policy conditioned by the Convention.
IV. Legislative Obligations on Domestic Criminal Law
4.1. Tipicity
4.1.1. Intentional Offences
Article 2.1 indicates that: “Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law:
a) the discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which:
i. causes death or serious injury to any person, or
ii. creates a significant risk of causing death or serious injury to any person;
b) the unlawful discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which causes or is likely to cause their lasting deterioration or death or serious injury to any person or substantial damage to protected monuments, other protected objects, property, animals or plants;
c) the unlawful disposal, treatment, storage, transport, export or import of hazardous waste which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;
d) the unlawful operation of a plant in which a dangerous activity is carried out and which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;
e) the unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants, when committed intentionally” (12) .
Besides, Article 2.2 indicates that “Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law aiding or abetting the commission of any of the offences established in accordance with paragraph 1 of this article”.
4.1.2. Negligent Offences
Article 3.1 indicates that “Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offence under its domestic law, when committed with negligence, the offences enumerated in Article 2, paragraph 1 a to e” (intentional offences) (13) .
4.1.3. Other Criminal Offences or Administrative Offences
Article 4 indicates that, insofar as these are not covered by the provisions of Articles 2 (intentional offences) and 3 (negligent offences), each Party “shall adopt such appropriate measures as may be necessary to establish as criminal offences or administrative offences, liable to sanctions or other measures under its domestic law, when committed intentionally or with negligence:
a) the unlawful discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water;
b) the unlawful causing of noise;
c) the unlawful disposal, treatment, storage, transport, export or import of waste;
d) the unlawful operation of a plant;
e) the unlawful manufacture, treatment, use, transport, export or import of nuclear materials, other radioactive substances or hazardous chemicals;
f) the unlawful causing of changes detrimental to natural components of a national park, nature reserve, water conservation area or other protected areas;
g) the unlawful possession, taking, damaging, killing or trading of or in protected wild flora and fauna species”.
4.1.4. Criminalizing the Risk. Punish without Damage?
The Convention tipifies risk misconducts. Risk is inevitable in industrialized societies. However, it is necessary that economic activities must be developed in a framework of security. In this sense, a enviromental risk criminal prohibition may be necesary because the environment requires an anticipated protection and because environmental damages may be the consequence of a reiteration of accumulative acts which, at the individual level would, be harmless. This option is corroborated not only by the preventive finality of criminal law, as by the precaution principle of international law of the environment. Principle 15 of The Rio Declaration indicates that “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.
4.2. Legal Consequences for Environmental Offences
4.2.1. Sanctions
Article 6 claims that “Each Party shall adopt, in accordance with the relevant international instruments, such appropriate measures as may be necessary to enable it to make the offences established in accordance with Articles 2 and 3 punishable by criminal sanctions which take into account the serious nature of these offences. The sanction available shall include imprisonment and pecuniary sanctions and may include reinstatement of the environment”.
4.2.2. Confiscation Measures
Confiscation is a measurement of simultaneous utility. Its purpose is to defend the collectivity, as a general prevention, and to express the concept of loss of control upon the instruments of offence. Furthermore, and in the framework of special prevention, its also serves to influence the author as via confiscation sanctions may appear to be harsher (14).
In relation to confiscation, Article 7.1 indicates that each Party shall adopt such appropriate measures as may be necessary to enable it to confiscate instrumentalities and proceeds, or property the value of which corresponds to such proceeds, in respect of intentional offences (Article 2) and negligent offences (Article 3)(15) .
4.2.3. Reinstatement of the Environment
Principle 13 of Rio Declarations indicates that “States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction”. In this way and as consequence of its crimininal policy orientation, the Convention permits criminal law to enter in the field which normally belongs to the realm of civil liability by an optional provision.
Article 8 states that: “Each Party may, at any time, in a declaration addressed to the Secretary General of the Council of Europe, declare that it will provide for reinstatement of the environment according to the following provisions of this article:
a) the competent authority may order the reinstatement of the environment in relation to an offence established in accordance with this Convention. Such an order may be made subject to certain conditions (16);
b) where an order for the reinstatement of the environment has not been complied with, the competent authority may, in accordance with domestic law, make it executable at the expense of the person subject to the order or that person may be liable to other criminal sanctions instead of or in addition to it” (17).
The Explanatory Report says that this article is inspired by the underlying philosophy of some existing legislations which recognise the advisability of solving litigations either by making use of different means of reparation, including the reinstatement of the environment, or the compensation of victims, before the prosecution of the offence or during the trial.
4.2.4. Corporate Liability
Article 9.1 claims that “Each Party shall adopt such appropriate measures as may be necessary to enable it to impose criminal or administrative sanctions or measures on legal persons on whose behalf an offence referred to in Articles 2 or 3 has been committed by their organs or by members thereof or by another representative”.
Corporate liability through criminal law implies a contradiction with the societas non delinquere potest principle. Some domestic laws, as the Italian (18), exclude legal person liability through criminal law; but, they admit its administrative liability. In other states corporate liability through criminal law is admitted; for example, Holland’s Criminal Code indicates that crimes may be committed by physical or legal persons and that it is possible to punish companies (article 51). In Denmark, Law 358 on the Protection of the Environment (1991, June 6) foresees the direct criminal liability of legal persons, which may mean that an organ or the legal person may be liable.
The Convention does not oblige States to request corporate liability through criminal law, but it indicates that such liability can be required trough criminal law or administrative law. Moreover, Article 9.2 indicates that: “Corporate liability under paragraph 1 of this article shall not exclude criminal proceedings against a natural person” (19) .
V. Legislative Obligations on Procedural Criminal Law
5.1. Establishing of Jurisdiction
Jurisdiction refers to particular aspects of general legal competence of states often referred to as “sovereignty”. Jurisdiction is an aspect of sovereignty and refers to judicial, legislative and administrative competence (20).
Along this line, the Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with its domestic law (Article 5.3) (21) , but it makes reference to the obligation of States to adapt their legislation to prosecute criminal offences established in accordance with it.
5.1.1. Territorial Principle
The principle that the courts of the place where the crime is committed may exercise jurisdiction has received universal recognition, and is but a single application of the essential territoriality of the sovereignty, the sum of legal competences, which a State has. In case of crime, the principle has a number of practical advantages, including the convenience of the forum and the presumed involvement of the interests of the State where the crime is committed (lex loci delicti) (22).
In connection with this principle, Article 5.1.a) of the Convention indicates that each Party shall adopt such appropriate measures as may be necessary to establish jurisdiction over a criminal offence established in accordance with this Convention when the offence is committed in its territory.
5.1.2. Flag Principle
The flag principle is closely linked with the territoriality principle (theory of the “Territoire flottant”). By this principle, the State, under whose flag is flow by a ship in maritime navigation or in interior waters, or under whose protection an aircraft is registered, this state has the punitive power over actions carried out by or in the ship or aircraft. As each ship can only be registered under one state, according to the 1944 Chicago Convention; this means that the flag principle always leads to clear conclusion that, in each case, the national state preserves its punitive power with independence from the physical position of the ship or aircraft at the moment of the act being committed (23) .
In connection with this principle, the Article 5.1.b) indicates that each “Party shall adopt such appropriate measures as may be necessary to establish jurisdiction over a criminal offence established in accordance with this Convention when the offence is committed on board a ship or an aircraft registered in it or flying its flag”.
5.1.3. Nationality Principle
Nationality, as a mark of allegiance and an aspect of sovereignty, is also generally recognised as a basis for jurisdiction over extra-territorial acts. The application of the principle may be extended by reliance on residence and other connections as evidence of allegiance owed by aliens and also by ignoring changes of nationality. On the other hand, since the territorial and nationality principles and the incidence of dual nationality create parallel jurisdiction and possible double jeopardy, many states place limitations on the nationality principle and it is often confined to serious offences. In any event, nationality provides a necessary criterion in such cases as the commission of criminal acts in locations such as Antarctica, where the “territorial” criterion is inappropriate (24) .
In connection with this principle, Article 5.1.c) of the Convention indicates that each Party “shall adopt such appropriate measures as may be necessary to establish jurisdiction over a criminal offence established in accordance with this Convention when the offence is committed by one of its nationals if the offence is punishable under criminal law where it was committed or if the place where it was committed does not fall under any territorial jurisdiction”.
This article, interpreted in relation to Article 9, implies the possibility of applying the nationality principle to corporate liability; therefore the attribution of legal persons (personnes morales) to a particular State for the purpose of applying a rule of domestic or international law is commonly ****d upon the concept of nationality (25) .
5.1.4. Aut Dedere Aut Judicare Principle.
Extradition is a judicial procedural where the courts of a State decide the delivery of a person (extraditurus) to the justice of another State. Mainly, it is an institution of procedural law referring to a jurisdictional activity, but inside of this procedure there are some non judicial activities, as the intervention of the Foreign Affairs Minister of the States (26).
As all extradition may be acepted or denegated, international treaties on criminal law establish explicitly the duty to prosecute or extradite. Therefore, aut dedere aut judicare is usually used to refer to a principle adopted in specific treaties with respect to specific offences. The importance of the aut dedere aut judicare concept is that by imposing this strict obligation, impunity is reduced and deterrence is reinforced because offenders are prosecuted (27) .
The Convention syntonizes with the aut dedere aut judicare principle. Article 5.2 indicates that “each Party shall adopt such appropriate measures as may be necessary to establish jurisdiction over a criminal offence established in accordance with this Convention, in cases where an alleged offender is present in its territory and it does not extradite him to another Party after a request for extradition” . By this article, non legal and politic aspects or the refusal of extradition (28) of the own nationals cannot mean impunity.
5.2. Rights of Groups to Participate in Proceedings (Actio Popularis)
The actio popularis is an institution of procedural law that consists in the exercise of action, in a criminal or administrative process, by citizens in defence, not of their particular interests, but of the public interest. In this way, Article 11 indicates that each “Party 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, grant any group, foundation or association which, according to its statutes, aims at the protection of the environment, the right to participate in criminal proceedings concerning offences established in accordance with this Convention”.
5.3. Co-operation Between Authorities
Article 10.1 of the Convention indicates that “Each Party shall adopt such appropriate measures as may be necessary to ensure that the authorities responsible for environmental protection co-operate with the authorities responsible for investigating and prosecuting criminal offences:
a) by informing the latter authorities, on their own initiative, where there are reasonable grounds to believe that an offence under Article 2 has been committed;
b) by providing, upon request, all necessary information to the latter authorities, in accordance with domestic law” (29) .
5.4. International Co-operation
Article 12.1 of the Convention affirms that “The Parties shall afford each other, in accordance with the provisions of relevant international instruments on international co-operation in criminal matters and with their domestic law, the widest measure of co-operation in investigations and judicial proceedings relating to criminal offences established in accordance with this Convention”.
Besides, Article 12.2 indicates that “The Parties may afford each other assistance in investigations and proceedings relating to those acts defined in Article 4 of this Convention which are not covered by paragraph 1 of this article”.
VI. Territorial Application of the Convention
When dealing with aspects related to territorial application of the Convention, Article 15 of the Convention affirms that:
“1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.
2. Any State may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. In respect of such territory the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.
3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General”.
VII. Conclusions
The legislative obligations derivated from the Convention allow me to conclude as follows:
1. With respect to criminal law, the Convention determines the jus punendi of States and it is a harmonising mechanism of environmental criminal law. However, the term “Unlawful” gives flexibility to this framework of harmonisation. But, this flexibility is necessary because it establishes a framework of penal prohibition that permits to keep in mind the needs of the penal intervention and the changing circumstances at the time and in space. In another way, not only a stiff framework would complicate the signature, ratification and enforcement; but it would also be a useless tool.
On the other hand, the Convention does not make reference to international relapse (re-offence). However, relapse is an aggravating circumstance in the law of the States. This aggravating circumstance will reinforce to preventive and retributive finalities of criminal law.
2. With respect to procedural criminal law, the incoropration of the Convention into domestic law intensifies, not only the role of NGOs (actio popularis) and the international mechanism of judicial co-operation, as well as the prosecution of those responsible, because it obliges each State to exercise territorial and extraterritorial jurisdiction, transforming environmental delinquents into ubiquitous criminals.
On the other hand, the Convention does not allude to old problems in procedural law as immunity or transborder pollution.
With respect to the immunity problem, this can be a procedural obstacle because immunity doest not only refer to the immunity of jurisdiction (criminal, civil or administrative), but also to the immunity of execution of the sentences and would affect measures and decisions (as confiscation and reinstantement of the environment). De lege ferenda, this problem would be resolved through a Facultative Protocol that will foresee that each part may, in a declaration addressed to the Secretary General of the Council of Europe, express resign to its immunity of jurisdiction and execution. Without doubt, this optional declaration will be conditioned by the political will of the States.
With respect to transborder pollution, it implies three problems: a) What is the competent criminal jurisdiction? b) What is the applicable law to criminal and civil liabilities?, and c) Is a transborder pollution prosecutable when the action is not unlawful in accord to domestic State law of the misconduct but is unlawful in accord to other domestic criminal law?
a). About the competent jurisdiction, by territorial principle, the jurisdiction that would be competent is from where the pollution is provoked. However, in the hypothesis of a situation where this State does not exercise its jurisdiction, the other affected states can apply for the extradition of the offences. Therefore, aut dedere aut judicare principle will play in favour of the international protection of the environment.
b). About the applicable criminal law; principally, the applicability of the criminal law will be of the State that exercises jurisdiction, although it is possible that bilateral or multilateral treaties hold another thing. With respect to environmental civil liability, the Convention does not talk about applicable laws. In consequence, it is at the mercy of national or international norms of Private International Law. In this sense, the Convention allows a plurality of states on the reinstatement of the environment. According to the municipal law applicable, a plurality of limitations and mitigations about liability may also exist.
c). About the prosecution to a transborder pollution where the action is not unlawful in accord to municipal State law of the misconduct but this action is unlawful in accord to other domestic criminal law by the intervention of Administrative Law (term “unlawful”), in this case, misconduct alone would be punishable by the justice of a second State if its municipal criminal law permits to punish the damages provoked in its territory from the territory of another state. But, a criminal process must always respet the non bis in idem and res judicata principles, to whatever extend the polluting damage may be transbordered.
3. To summarise, the Convention does non only require states to criminalize a wide range of offences that were committed with intent or gross negligence in domestic law obligating to prosecute them, as well as it is also a general framework of reference about when, how and where to protect.
References
1. See, BLANCO LOZANO, La protección del medio ambiente en el Derecho penal español y comparado (1997). pp. 43-132 and La tutela penal del agua a través del Derecho penal (2000). pp. 201-286; International Review of Penal Law. Vol. 65 (1994), it holds reports on the protection of the environment through domestic criminal law.
2. The terms of reference of the Committee were as follows: “The project group is invited to examine the conclusions of the 17th Conference of European Ministers of Justice (Istanbul, June 5-7, 1990), recommending the development of common guidelines for the purpose of combating environmental impairment, and more particularly, to examine the following questions taking into account the work of the PC-S-EN: a) drawing up of a list of offences the purpose of which would be to provide for adequate criminal law protection for water, soil, the air, the flora and the fauna and other components of the environment meriting protection, and also for man in his environment; b) applicability of the concept of endangerment offences (concrete, abstract or potential), irrespective of the damage actually done; c) defining the relationship between criminal law and administrative law in the environmental sphere; d) allowing the offender's actions to avert danger or damage arising from his offence to be taken into account in decisions on prosecutions or punishment; e). the applicability of the European Criminal Law Conventions to environmental crime, international co-operation, jurisdiction, conflicts of competence, the place of the commission of the offence and other relevant questions concerning international criminal law relating to the environment. The project group should make a Recommendation containing guidelines or a Convention, if appropriate”.
3. http://conventions.coe.int/treaty/en...s/Html/172.htm
4. Intentional offences (Article 2), negligent offences (Article 3), other criminal offences or administrative offences (Article 4), jurisdiction (Article 5), sanctions (Article 6), confiscation measures (Article 7), reinstatement of the environment (Article
, corporate liability (Article 9), co-operation between authorities (Article 10), rights for groups to participate in proceedings (Article 11).
5. International co-operation (Article 12).
6. Signature and entry into force (Article 13), accession to the Convention (Article 14), territorial application (Article 15), relationship with other conventions and agreement (Article 16), reservations (Article 17), amendments (Article 18), settlement of disputes (Article 19), denunciation (Article 20) and notifications (Article 21).
7. See FIANDACA & MUSCO, Diritto penale. Parte generale (1996). pp. 28-30; ROXIN, Strafrecht. Allgemeiner Teil, Band I: Grundlagen. Der Aufbau der Verbrechenslehre (1995). pp. 23-25.
8. BIRNIE & BOYLE, International Law & The Environment (1992). p. 207.
9. MIR PUIG, Derecho penal. Parte general (1998). p. 16. See ROXIN, cit., pp. 162-76; JESCHECK, Lehrbuch des Strafrechts: Allgemeiner Teil (1988). pp. 17-23.
10. BROWNLIE, Principles of Public International Law (1998). p. 34.
11. Ibid., p.35.
12. As Explanatory Report indicates, compliance with environmental administrative law cannot always preclude criminal liability. A permit may legalise certain acts, but does not grant absolute rights to the polluter .
13. Article 3.2 indicates that: “Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this article, in part or in whole, shall only apply to offences which were committed with gross negligence”.
Article 3.3 indicates that “Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this article, in part or in whole, shall not apply to:
- subparagraph 1 a ii ) of Article 2,
- subparagraph 1 b) of Article 2, insofar as the offence relates to protect monuments, to other protected objects or to property”.
14. JESCHECK, cit., p. 724; and see JESCHECK & WEIGEND, Lehrbuch des Strafrechts: Allgemeiner Teil. (1996). pp. 796-800.
15. Article 7.2 indicates that “Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it will not apply paragraph 1 of article either in respect of offences specified in such declaration or in respect of certain categories of instrumentalities or of proceeds, or property the value of which corresponds to such proceeds”.
16. Paragraph a) provides for a general possibility of the reinstatement of the environment, in particular in
cases where it is advisable to manage the situations of conflict rather than to impose traditional criminal sanctions. “Measures of reinstatement" means any reasonable measures aiming at to reinstate or restore damaged or destroyed components of the environment, or to introduce, where reasonable, the equivalent of those components into the environment.
In view of the differences regarding the application of this measure in member States, this paragraph does not determine the different stages of the criminal proceedings where the reinstatement of the environment can be ordered. It can take placeprior to prosecution, e.g. when the offender had no intention to commit an offence and the damage caused to the environment is relatively insignificant. It can also take place at the trial stage. Both alternatives are left to the discretion of the competent national authorities, which should duly take into account the consent of the offender, if appropriate. The “competent authority” may include, in accordance with national law, judicial and administrative authorities, as well as prosecutors.
The implementation of a measure of reinstatement of the environment may be made subject to specific conditions such as the absence of criminal records on the charge of the prosecuted person, consultation of the victims, associations, services or bodies entitled to lodge a claim before the criminal justice. If the reinstatement of the environment is ordered prior to criminal prosecution, the necessary period of time must be left for the offender to comply with such an order. If it is executed properly, criminal prosecution shall not take place. At the trial stage, the reinstatement of the environment can be imposed by decision of the competent judicial authority as the only sanction, or may be combined with a complementary sanction usually pronounced by criminal courts (fines, withdrawal of a permit, etc.)” (Explanatory Report).
17. In order to ensure the effective implementation of the measure of the reinstatement of the environment by the offender, the competent judicial authority has to provide for a procedure of control. This may take the form of a procedure of adjournment of the trial permitting to control the actual execution of the reinstatement of the environment, but can also consist in a decision of conviction, adapted to the situation and in conformity with judicial traditions of member States. Paragraph b) provides for a possibility and not an obligation for the judicial authorities to ensure by additional sanctions the effective implementation of the order of reinstatement of the environment, if it has not been carried out properly or the conditions thereof have not been respected (the offender appeared to be of bad faith). For example, the competent judicial authority shall have the possibility to decide that the measure should be implemented by the offender at his own expenses or impose additional sanctions (Explanatory Report).
18. Article 27 of Italian Constitution indicates that criminal responsibility is personal.
19. Article 9.3 indicates that “Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to apply paragraph 1 of this article or any part thereof or that it applies only to offences specified in such declaration”.
20. BROWNLIE, cit., p. 301.
21. It is interesting that article 6.2 of the German Criminal Code claims that German Criminal Law is applicable, independently of the law of place of the facts, for crimes committed with nuclear energy, explosives, radioactive emissions, in some environmental damages (provoked by an explosion with nuclear energy, provoke detonation of a explosive and abuse of ionic rays).
22. Ibid., p. 303.
23. JESCHECK & WEIGEND, cit., p. 168; and see BRONWLIE, cit., p. 428-32 & 246-49.
24. BROWNLIE, cit., p. 306.
25. Ibid., p. 425-26.
26. See PUENTE EGIDO, L’extradition en droit international, at Recueil of The Hague. 231 (1991). pp. 67-76.
27. BASSIOUNI, International Extradition: United States Law and Practice (1996). p. 8.
28. On the other hand, Article 5.4 of the Convention indicates that each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that personality principle (Article 5.1c) and aut dedere aut judicare principle (Article 5.2), in part or in whole, shall not apply.
27. Article 10.2 indicates that “Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to apply paragraph 1 a) of this article or that it applies only to offences specified in such declaration”.
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