Policy Changes

The traditional approach towards environmental criminal law (summarized in Sect. 2.2) has been subjected to serious criticism (Sect. 2.3). Moreover, this criticism was largely supported by data indicating the relatively limited capacity of the criminal legal system to deal with environmental crime (Sect 2.4). In this section, I discuss the various policy changes that have occurred in this regard.

I first analyse the importance of the Council of Europe Convention of 1998, a relatively early policy document (Sect. 5.1). Next, I look at the importance of the EU Directive on Environmental Crime of 2008 (Sect. 5.2) and question to what extent it is a departure from the traditional enforcement approach and in line with the doctrinal suggestions. Finally, I look at the evolution of legislation in several member states in order to provide examples of where they have departed from the traditional enforcement approach in line with the doctrinal suggestions (Sect. 5.3).

Council of Europe Convention

The influence of the Max Planck project on criminal law is most visibly detected in the 1998 Council of Europe Convention on the Protection of the Environment through Criminal Law. (See Faure and Heine [2000] for the text of the Convention.)11 In this Convention, the various signatory states agreed to adopt specific provisions to protect the environment in their criminal law. It thus contains minimum provisions on environmental criminal law. Interestingly, many of the ideas presented above can be found in this convention, particularly the three types of provisions mentioned above.

Article 2 of the Convention describes a crime related to unlawful emissions. This article contains a long list of behaviours that the signatory states will criminalize based on their national law. Article 2(1b) refers to:

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, [1]

property, animals or plants. (Article 2(1b) of the 1998 Council of Europe Convention on the Protection of the Environment through Criminal Law)

This provision clearly criminalizes the concrete endangerment of the environment. It is the unlawful emission that is penalized, which goes much further than merely penalizing the transgression of administrative obligations.

However, the Convention also goes a step further; Article 2.1(a) describes an independent crime of serious pollution:

The discharge, emission or introduction of a quantity of substances or ionizing radiation into air, soil or water, which:

causes death or serious injury to any person, or creates a significant risk of causing death or serious injury to any person. (Article 2.1(a) of the 1998 Council of Europe Convention on the Protection of the Environment through Criminal Law)

Note that in this particular case, when the emission has such serious consequences of causing or risking death or injury, there is no longer a requirement that the emission should be unlawful. This is then a truly independent crime in the sense that the provision applies irrespective of the violation of administrative obligations. This provision can also be applied when an operator would follow the conditions of an administrative permit as unlawfulness is no longer a requirement for criminal liability. The rationale is that emissions causing death or serious injury or creating a significant risk can never be justified under administrative law.

Finally, the Council of Europe Convention also has the criminalization of the violation of administrative obligations. However, this, logically, occupies a less important place in the Convention. More particularly Article 4(d) refers to ‘the unlawful operation of a plant’. Note, however, that in this particular case, it holds:

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.

The drafters of the Convention clearly recognized that in this case ecological values were not endangered in the same way as with unlawful emissions. In this case, member states can rely on administrative offences.

Although this Convention has not yet entered into force, it is an instrument that demonstrates a new attitude towards environmental criminal law. If environmental criminal law is supposed to play an important role in supporting sustainable development, it should not limit itself to sanctioning administrative obligations but should grant more direct protection to ecological values. This has been realized in the Council of Europe Convention, which also refers to unlawful emissions and even recognizes truly independent crimes in the case of pollution that has serious consequences. This Convention is hence an interesting example of the approach whereby various criminal provisions aim at the protection of criminal law, as this had been proposed in (German) legal doctrine. The Convention also explicitly refers to administrative offences, providing a scope for an approach whereby criminal law would only be used as a last resort.

  • [1] It is also available at .
 
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