Kosovo and Environmental Crime

The UN Security Council Resolution 1244 and the mandate for UNMIK were the legal basis for Kosovo’s post-war legal system. Under the UNMIK mandate, the Provisional Institutions of SelfGovernment adopted a Constitutional Framework, a Criminal Code, and basic environmental laws that after the 2008 independence declaration have been renewed and extensively developed, but enforcement by the new Kosovar institutions remains weak. The weakness and corruption of Kosovo institutions (Morina et al. 2011) are considered to be at the root of illegal practices that are openly carried out in most of the territory of Kosovo: illegal logging, illegal hunting, illegal waste management, illegal construction, destruction of cultural heritage of minorities, etc. All these activities would have been designated as environmental crimes if law enforcement agencies had acted. The lack of response to these violations fosters the perception that environmental crimes do not really exist and that impunity reigns due to the failure of law enforcement agencies and the understaffed judiciary to act. In this scenario, environmental crime is the result of the lack of respect for laws or ignorance of their existence, the lack of resources of law enforcement agencies, and, on many occasions, of the high profit made by means of environmental crimes such as illegal logging. However, the problem is compounded if it is considered that these new laws are not rooted in the traditions of this territory but provided by foreign legal experts and committees during the international administration and in its aftermath.

It is not only a problem of laws imported from other legal systems, it is also the failure to turn a territory without its own legal tradition into a law-abiding land.

Ignoring environmental laws harms the environment and should be sanctioned by the administrative and criminal laws and proceedings that constitute the environmental protection legal framework of Kosovo. These comprise a wide range of statutes already in force but not implemented: laws on environmental protection, special protective zones, forests, spatial planning, strategic environment assessment, waste, agricultural land, cultural heritage, construction, hunting, fishing, and the Inspectorate. These main legal instruments have intentionally been created to correspond with EU environmental law and comply with the requirements imposed by the European Commission through the Instrument for Pre-Accession Assistance.[1] As Kryeziu et al. argue, ‘like any other new country, the laws on paper do not necessarily accompany the proper execution of what is expected of them. Therefore in Kosovo implementation of laws is not fully executed and the few implemented laws are not fully respected’ (2012, pp. 14-15). This lacklustre implementation of laws and regulations has not affected the traditional misuse of Kosovo’s environment, one of them being deforestation.

However, criminalizing these activities is not possible at this point since the corpus of administrative law is not yet applied, the institutions are not fit for service, and the population is not familiar with the new legal system imposed from above. The inadequacies and loopholes of a legal system created from scratch and one that imports legal traditions alien to the previous system are some of the obstacles that have to be overcome by the new institutions such as the MESP and the Kosovo Environmental Protection Agency (KEPA) that are under-resourced and whose staff lack adequate training and expertise.

In Kosovo, types of conduct that damage the environment can be sanctioned by administrative or criminal laws. A general environmental law does not exist, but several fragmented administrative laws cover different sectors. The Criminal Code introduces Chapter XXVIII on Criminal Offenses against the Environment, Animals, Plants, and Cultural Objects that is directed to the Kosovo context. The Environmental Inspectorate is the institution that adopts administrative sanctions and initiates criminal proceedings.

An analysis of the legal schema adopted to protect the environment and to sanction the breaches of environmental law shows that Kosovo has a system that combines characteristics of both civil and common law of Europe and the USA. The result has been a convoluted state-building on the part of the international administration. Introducing this new legal schema for environmental protection into Kosovo’s less developed legal system strains an already beleaguered administration.[2] Thus, instead of adopting a general law or code for the protection of the environment, Kosovo uses a wide variety of statutes to protect the environment by activities that establish sanctions for their infringement and also refer to criminal proceedings that can be initiated by the administrative authority, that is, the Environment Inspectorate. The hunting law provides an example of this. Inspectors assume a broad mandate that makes enforcement difficult; the statute envisages civil as well as administrative sanctions and the possibility of initiating criminal proceedings.[3] This law also contemplates the seizing of proceeds.[4]

Kosovar environmental laws are being developed by the government and municipalities monitored by KEPA and enforced by the Inspectorate, which has a broad mandate. However, its full capacity to act will not be developed and operative until the legislature adopts measures to determine special areas of protection or allowed threshold values for standards of emissions when appropriate. Moreover, local authorities have been criticized for their feeble efforts to protect the environment (European Commission 2013, 2014, 2015), especially combating illegal logging and resolving the problems of waste management (Kryeziu et al. 2012).

Various reports prepared by institutions and agencies on the field agree on the problem of a lack of commitment of authorities and people. In 2009, the United States Agency for International Development (USAID) clearly laid out the problems of applying environmental sanctions: ‘Practically all environmental laws include sanctions for noncompliance. However, they are often broad and general requirements that make it difficult to implement sanctions. It is almost impossible to process violators in the courts’ (USAID 2009, p. 15).

In the next section, I introduce three major environmental problems of Kosovo together with their legal framework.

  • [1] See the Instrument for Pre-Accession Assistance (IPA II), Multi-Country Indicative StrategyPaper (2014-2020), adopted on 30/06/2014, available at http://ec.europa.eu/enlargement/pdf/key_documents/2014/20140919-multi-country-strategy-paper.pdf.
  • [2] The civil law system is characterized by its dependence on administrative law, meaning thatcriminal law will only intervene when according to the principle of legality, the intensity andseriousness of the breach of administrative law standards of environmental protection requires acriminal sanction. On the other hand, the Common Law relies on an Inspectorate with widepowers to sanction and to decide fines or to initiate criminal procedures (Fajardo 2015).
  • [3] See Law No. 02/L-53 on Hunting, and in particular, Chapter X on Administrative Sanctionsand Article 59 on undertake measures, available at http://www.assembly-kosova.org/common/docs/ligjet/2005_02-L53_en.pdf.
  • [4] In its Article 62 on Protection measures, the Law on Hunting states: ‘Besides the penalty for civilviolence from Article 61, the person may be sentenced to the protection measures of seizing themean item used or meant for committing the civil violence and the protection measure of seizingthe property achieve as a result of civil violence or remained as a result of committing the civilviolence’.
 
Source
< Prev   CONTENTS   Source   Next >