Environmental Pollution Liability: A Comparative Legal Study of EU, Kazakhstan and Russia

Environmental criminal law provides for measures targeting the most serious environmental offences and improving the enforceability of environmental provisions. In the article, environmental criminal law provisions in Poland and Russia are analyzed and compared. The changes introduced by the Council Directive 2008/99/EC on the protection of the environment through criminal law have a significant impact on the Member States’ criminal law, promoting broader criminalization of environmentally harmful behavior and more severe sanctions. Although the Russian Federation is not an EU member and adopts its environmental legislation, it is still a party to several international treaties and therefore is obligated to provide an adequate level of environmental protection. There are several similarities between the criminal provisions in both countries concerning the classification of environmental crimes and the limbs of their legal definitions. Besides, both countries use a continental model of criminal procedure including their rules on evidence. It allowed us to compare national law enforcement practices. The authors analyze current law enforcement challenges and discuss possible solutions.

Criminal law is often described as the field of law that expresses the strongest national characteristics of a given jurisdiction and is the least amenable to change. Naturally, social rules providing some kind of penalty when violated have existed throughout the history of mankind. In Europe, the current understanding of criminal law has been shaped by Enlightenment thought, the ideas of human rights, liberalism and finally the national movements which led, inter alia, to the famous codifications of criminal law of the 19th century. In Russia, criminal law has certainly (not been isolated from the developments that took place in 19th century Europe. For example, the abolition of corporal punishment is but one good marker of humanisation. But compared to Europe, codified criminal law in Russia has been much less understood as the magna charta of the offender (Franz von Liszt), eventually leading to the study of human rights in criminal law. Rather, it has been viewed as the expression of the Tsars unfettered power to mete out punishment, - a line of thinking which indicates the continuing difficulty in Russian criminal law doctrine to accept limitations on the power of the legislator to criminalize. This paper will not deal with Russian doctrinal approaches to criminal law in a direct way. Instead, its purpose is to demonstrate the European Unions (EUs) current thinking on the effects that human rights have on the development of criminal law. As of today, criminal law is under a variety of influences among which the changing understanding of human rights is a very important one. In the Western world, there is a large amount of literature dealing with human rights and criminal law in general1 [1; 2], and it is hardly possible to come to an overall systematization. To be sure, there are parts of criminal law which have experienced very little change in light of human rights. One central tenet of human rights, for example, is the equality of men2 (in a pre-modern reading to include also women) which leads to the criminalization of slavery, slave trade, forced labor and trafficking in human beings. The smuggling of humans, on the other hand, is a much more controversial topic due to the fact that states show a strong desire to criminalize irregular migration. Another pillar of human rights is the human right to property3 which informs a whole range of criminal law provisions for violations of the right to property on land (theft, robbery, etc.) and on water (piracy). By comparison, the right to life is a more difficult concept. Human rights are behind the global drive for abolishing the death penalty4, but a number of other life-related issues are determined less by human rights than by religious and ethical views, such as the criminalization of abortion, aiding and abetting suicide, and euthanasia. Finally, a number of human rights are experiencing a very lively debate, e.g. freedom of speech5 [3] and freedom of religion, consequently there is also a high impact on the development of criminal law. European criminal law, understood as the total of the harmonized national criminal law systems of the EU Member states, offers a good example to study the effects of human rights. In the literature, there is the argument that changes in the understanding of human rights can lead both to criminalization and to de-criminalization. This has also been described as the «sword» function of human rights (using human rights to call for criminalization) and the «shield» function (using human rights law to call for limits to the use of criminal law and even de-criminalization) [1]. Both functions can be observed in a nutshell when analyzing the European criminal law that has emerged in the course of the last decade. For Russia, this article represents a (hopefully timely) contribution to the still nascent discussion on the effects of human rights on criminal law. Despite the Preamble to the newly adopted Constitution of the Russian Federation (RF) which affirms the role of human rights, Article 15 (4) Constitution RF limits the direct impact of human rights law to the universally accepted norms and principles of international law as well as to treaties concluded by the RF. The Constitution therefore appears to be closing the door to cutting-edge developments in international human rights law which are still not universally accepted.

Climate protection is one of the most urgent tasks to be addressed by international, EU, and national law. This affects international and constitutional law, environmental administrative law, as well as criminal and civil law. Climate protection is increasingly being strengthened by the judgment of the European Court of Human Rights, the opinion of the International Court of Justice, and decisions of national courts based on fundamental and human rights. Legal proceedings are increasingly being conducted strategically in order to force states to take climate protection measures and thus help international treaties such as the 2015 Paris Agreement to achieve a breakthrough. Even if these court decisions do not specifically deal with criminal law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union provide a framework for criminal law within which the European Union Directive on environmental criminal law (2024) and the Convention on the Protection of the Environment through Criminal Law of the Council of Europe (2025) must comply. When implementing these legal requirements into national law, criminal law has a considerable degree of methodological, conceptual, and argumentative independence from constitutional law. Therefore, effective and consistent penal solutions must be developed in national criminal law systems.

The state of the environment in general and the negative effects of armed conflict in particular are issues to be addressed. The impact of these factors on human rights is obvious. The purpose of this article is to analyze norms and practice of international law to determine the possibility of the protection of environmental human rights in the context of armed conflict. The analysis of international legal norms shows a deficit of special rules providing for the protection of environmental human rights in the context of armed conflict. The volume of international law providing for the direct protection of the human right to a healthy environment is extremely limited. They represent the norms of "soft law" and are not legally binding or, in the most general terms, are enshrined in some regional instruments. The existing state of international legal regulation of this issue necessitates recourse to international judicial and non-judicial bodies. In this context, the practice of the African Commission on Human and Peoples Rights, Inter-American Commission on Human Rights, the European court on Human Rights, as well as acts adopted by the treaty bodies on human rights concerning the protection of individual human rights because of damage to the environment, may be relevant. The analysis of such practices and acts shows that the protection of environmental rights of the individual in the context of other human rights, namely: the right to life, right to adequate standard of living, the right to the highest attainable standard of health, right of ownership etc. In general, the protection of environmental human rights in the context of other human rights is possible in the conditions of an armed conflict, taking into account the characteristics of the latter. Therefore, this approach can ensure the protection of environmental human rights in the context of armed conflict.

The principle of legality in the context of the environment emphasizes that no environmental crime can be punished if it is not regulated in the applicable laws and regulations. This principle provides legal certainty for perpetrators of environmental crimes and provides clear boundaries regarding actions that are permitted and prohibited. The criminal provisions in Law No. 32 of 2009 explicitly regulate and limit an act that is categorized as an environmental crime. These provisions are the implementation of the principle of legality that is applied strictly. Law enforcement is necessary to create order in society. According to Mertokusumo, law enforcement means how the law must be implemented so that in enforcing the law, the elements of legal certainty, benefit, and justice must be considered. Criminal environmental law enforcement is based on the principle of legality, both in material and formal aspects. Criminal environmental law enforcement activities are only valid if the material substance is based on environmental articles, most of which are scattered outside the Criminal Code, and enforcement activities are carried out in accordance with Law No. 8 of 1981 concerning Criminal Procedure Law and guided by the Decree of the Minister of Justice of the Republic of Indonesia No. M.01.PW.07.03 of 1982 concerning Guidelines for the Implementation of the Criminal Procedure Code. This scientific research used the normative legal research method based on written regulations and other literature that examines aspects of theory, structure, and legal explanations related to this research. It adopted a statutory approach and data were collected using a literature study. Criminal provisions in Law No. 32 of 2009 explicitly regulate and limit an act that is categorized as an environmental crime. These provisions are the implementation of the principle of legality that is strictly applied. Outside of these provisions, it is not a crime. Although the impacts caused can damage, pollute, or cause harm to the environment. This condition is very susceptible to being misinterpreted and becomes a legal loophole for perpetrators to avoid the criminal law enforcement process. Therefore, it is necessary to know the essence of the principle of legality in Indonesian criminal law and its application to the enforcement of environmental criminal law.

The transition from colonial criminal law to a new legal architecture is vital for societies in transition, requiring careful reform and inclusive dialogue. This study explores the urgent need to deconstruct and reform criminal law frameworks in a globally interconnected world, where national legal systems struggle to address cross-border crimes like cybercrime, terrorism, and human trafficking. Traditional national frameworks, driven by state sovereignty, often conflict with international mandates, leading to discrepancies in how crimes are prosecuted across jurisdictions. This selective enforcement fosters public disillusionment with the rule of law and reveals the limitations of national sovereignty in regulating transnational offenses. As globalization accelerates, the world faces increasing social and cultural fragmentation, exemplified by war conflicts, which expose the limitations of traditional legal frameworks in addressing contemporary criminal challenges. These evolving dynamics necessitate an urgent re-evaluation of the mechanisms governing criminal liability, as national criminal law systems often prove inadequate in a globalized world where cross-border criminal activities and transnational offenses are on the rise. National criminal law, historically driven by state sovereignty and often perfectionist in its approach to national interests, increasingly collides with international mandates and global legal norms. This collision results in selective enforcement of justice, leading to discrepancies between how crimes are defined and prosecuted across different jurisdictions. To address these challenges, the study proposes the "architectonics of criminal regulation," a multi-layered framework that integrates national, regional, and international legal systems. This approach seeks to create a universal platform for criminal law that upholds human rights, promotes justice, and ensures consistent legal application across borders. The protection of human rights, especially in conflict zones, is central to this restructuring, with a focus on preventing abuses of power and ensuring accountability where local authorities have failed. In the context of transnational criminal law, the study emphasizes the importance of integrating international legal norms, such as those enshrined in the European Convention on Human Rights (ECHR), into the architectonics of criminal regulation. The ECHR provides a foundational legal framework that protects individual rights across member states, ensuring that any reforms to criminal law prioritize the protection of human dignity and justice. The architectonics approach builds on these principles by advocating for a unified legal platform that harmonizes national and international laws, allowing for effective prosecution of cross-border crimes while safeguarding human rights. This ensures that states adhere to a consistent standard of justice, even in the face of evolving global criminal challenges. By incorporating the ECHR’s protections into transnational criminal law, the architectonics framework strengthens the legal mechanisms required to combat international crimes while upholding fundamental human rights. The proposed architectonics of criminal regulation serves as a foundational platform for bridging the gaps between national legal systems and global criminal justice, ensuring that criminal law is capable of addressing the challenges of an interconnected, complex, and increasingly fragmented world.

The study is devoted to the examination of the essence of judicial protection of environmental human rights and the definition of the concept of “judicial protection of human rights”. The relevance of the study is due to the importance of the subject of judicial protection of environmental rights in war conditions. In the context of the implementation of the purpose of the study, the issues of judicial protection of environmental human rights in general and in war conditions, the study of legal doctrine and legislation in the relevant field, considering the judicial practice of resolving relevant disputes, are identified. During the study of the issue of judicial protection of environmental human rights, a comparative legal method was used, which helped to analyse and compare scientific views, theories, and approaches and consider problematic issues for their further solution. Due to the generalisation method, forecasting or proposing statements for improving the legal regulation of the protection of environmental human rights is applied, and due to the analysis method, the features of the principles of legal regulation of the protection of environmental rights are determined. In addition, the study is accompanied by quoting normative regulations, in particular, international treaties, which regulate all events that are currently taking place between Ukraine, the Russian Federation, and Belarus, but notes the non-fulfilment of such international treaties by Belarus and the Russian Federation. The study analyses the opinions of researchers in the field of environmental rights protection, which generally characterise the judicial practice of considering environmental disputes and emphasises the need to increase public activity in the protection of violated environmental rights. The study considers the practice of judicial protection of environmental human rights and describes the problems that exist in the context of the protection of environmental human rights. The specific features of judicial protection of environmental human rights are identified and the main examples of substantial violations of environmental human rights during the war with the Russian Federation are indicated, it is indicated what actions of the Russian Federation and Belarus caused damage to Ukraine in the field of environmental safety, with direct indication of specific objects that were hit by military equipment, as a result of which there is still a risk of environmental disasters not only in Ukraine but also in neighbouring countries. The proposals for improving the judicial protection of environmental rights outlined in this study are unique and effective for compiling scientific texts and conducting classes in the relevant field of law.

Human rights and the environment are linked with each other in two ways. Firstly, the environment is seen as pre-condition of realization of human rights. Because human beings are dependent on the environment. We all meet our basic needs including air, water and food from nature. Individuals cannot exist without the mother earth. For this reason, human rights may not be enjoyed at the absence of a clean environment. Secondly, human rights can be an effective way to achieve environmental safety. These two linkages are united under the umbrella of environmental human rights. Environmental human rights are the rights of people to protect the environment for the sake of human beings. There have been numerous studies investigating the scope and types of environmental human rights. However, how the linkage between human rights and the environment has been evolved has not been discussed sufficiently so far. Accordingly, this paper aims to explore how environmental human rights have been developed over history. This research finds that environmental human rights have been developed by international environmental law more than international human rights law.

Setting the framework for the protection of the environment through criminal law at the EC level ultimately leads to the adoption of Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law. The Directive establishes a minimum set of conducts that should be considered criminal offences throughout the EU when unlawful and committed intentionally (or with at least serious negligence). Inciting, aiding and abetting of such conducts will equally be considered a criminal offence. Directive 2008/99/EC must be implemented by Member States by 26 December 2010. Its adoption has been a debated and lengthy process. These debates occurred at the EU level (institutional conflict) and member state level, and were reflected into the legal scholars work. These debates concerned not as much the specific content of the Directive, but the institutional framework and in particular the use made of criminal law provisions in a first pillar legal instrument, as opposed to the normal use for these purposes of instruments provided for in the third pillar of the EU (police and judicial cooperation on criminal matters). The Directive, therefore, seemingly deviates from the general rule that “neither criminal law nor the rules of criminal procedure fall within the Community’s competence”. The Directive follows a Court of Justice’s decision of 13 September 2005 (Case C176/03) to annul an EU Framework Decision on the protection of the environment on the grounds that it had been adopted on an erroneous legal basis. In its decision the Court upheld the Commission's submission, holding that the Commission may take measures in relation to the Member States' criminal law where the application of criminal penalties is an essential measure for combating serious environmental offences. Hence, a Directive, a first pillar instrument, including criminal law provisions could be adopted. This article discusses the Directive’s institutional background and looks at the criminal law provisions in the Directive. It ends with a critical note on the presumed impact of the Directive.

Continental Criminal Law and European Human Rights Law: A Complicated Relationship

Ending unjust HIV criminalization: leave no-one behind.

Environmental crimes not only damage ecosystems but also violate human rights (HAM), especially the right to a healthy environment. This article highlights how criminal law can be a tool for protecting human rights in the context of the climate crisis. Using a normative legal approach and case studies, this article discusses the effectiveness of criminal law in protecting the rights of communities, including indigenous peoples and future generations, from the impacts of environmental crimes. It is found that even though environmental criminal law is available, human rights protection through this mechanism is still weak due to an approach that emphasizes ecological losses rather than aspects of individual and collective rights. An approach is needed that places environmental rights as part of fundamental human rights. The policy of formulating criminal law in Indonesia to protect victims of environmental crimes in the future is to improve criminal sanctions and add sanctions such as restitution and compensation as part of the main crime. This is important to provide better protection to victims, especially in cases of environmental crimes by corporations. The addition of restitution and compensation sanctions is also regulated in environmental law, including the mechanisms and amounts of compensation. This concept must be regulated in implementing regulations to avoid uncertainty and harm to victims in implementation in the field.

The article is devoted to the study of the problem of establishing the relationship between the criminal law and criminal procedure aspects of legal certainty. The author establishes that legal certainty within criminal justice is a dichotomous category, since it combines the requirements (rules) of criminal law and criminal procedure, and the category of legal certainty itself is a polymorphic construction in terms of content and essence, which gives grounds to consider legal certainty as a) a property of a rule of law; b) a principle of law; c) a requirement for a court decision; d) consequences (properties) of the legal force of a court decision; e) grounds for reversal of a court decision; f) a subjective right of a person to know what he or she is accused or suspected of; g) a criterion for realization of the legal status of participants to criminal law and criminal procedural relations. The criminal law manifestation of legal certainty relates exclusively to the properties of criminal law provisions and the relevant principle of criminal law, but it has a formative and guiding effect on criminal procedural manifestations of the principle of legal certainty and is interrelated with them. The author distinguishes three levels of legal certainty as a universal legal category of criminal law and criminal procedure law: normative (legislative), law enforcement and scientific (doctrinal). It is stated that legal certainty is not only a guarantee for an individual against arbitrary actions of the State within the criminal justice system, but also an opportunity for him/her to clarify his/her legal status within criminal law and criminal procedure relations, and to expect only predictable criminal law and criminal procedure consequences of actions of bodies and persons authorized by the State to apply criminal law response measures. If, as a result of legal uncertainty of criminal law provisions, a person does not understand the consequences of his/her behavior within criminal law relations, such a person will not be able to timely and adequately correct his/her behavior in order to change his/her legal status in accordance with the requirements of criminal law provisions. As a result, the law on criminal liability itself loses its regulatory value

The article is devoted to the study of environmental human rights as a key element of interaction between the international environmental law and human rights law. The subject of the study is the interaction of human rights and environmental interests. The theoretical foundations of the formation of environmental rights, their procedural and substantive aspects, and their enforcement in international and national legal systems are considered. Three approaches to legal enforcement of environmental human rights are discussed: implementation of existing norms, revision of international standards and adoption of new international obligations. The main objective of the paper is to analyse the current state of legal regulation of environmental rights, identify key problems of their implementation and search for optimal ways to strengthen them. To achieve this goal, the comparative legal method is used, analysing normative acts, judicial practice and international documents. Examples are given from the practice of regional bodies for the protection of human rights, as well as norms of national constitutions regulating environmental rights. The results of the work include a systematisation of environmental rights. Contemporary challenges are discussed, including the liability of business for violations of environmental rights and the role of specialised environmental courts. The novelty of the study lies in proposing a coherent approach to strengthening environmental human rights, starting with the improvement of implementation mechanisms and ending with the creation of new international obligations. It is concluded that a comprehensive approach to the protection of environmental rights is needed, including international co-operation, national legislation and business participation. The results obtained can be used for the development of international and national legal acts, as well as in the practical activities of lawyers, state bodies and civil society organisations.

The purpose of the research is an attempt to prove the independence of criminal procedure law in relation to criminal law. However, in the course of research, the authors were confronted with the fact that the traditional approach based on legal positivism does not allow one to distinguish other criminal procedural law, except for criminal law. However, a similar understanding of law and process does not allow to reveal their ability to resolve conflicts. In this regard, in the study, the authors turned to the methodology developed by modern hermeneutics, using the communicative theory of law as the main method for studying criminal procedure law, where law acts as a means of interaction between people, which sets the boundaries for such interaction, which made it possible to look at the criminal process as a way communications. In the process of such communication, conflicts arising in society that are basically criminal in nature are resolved. In the field of criminal proceedings, this allowed to say, if the case concerns a criminal law conflict, then we should not talk about the emergence of criminal law relations. Based on that, the authors conclude that the criminal procedure law is independent. This follows, first of all, from the fact that the process does not boil down to the application of criminal law, but performs the function of resolving conflicts and can well do without applying a specific norm of the Criminal Code of the Russian Federation, for example, in case of reconciliation of the parties (Article 25 of the Code of Criminal Procedure of the Russian Federation) or in connection with compensation for damage (Article 28.1 of the Code of Criminal Procedure). The authors conclude that criminal law is the legal means of institutionalizing possible social conflicts, and the criminal process is a form of resolution. Thus, the fact of committing a crime is losing its significance; instead, the conflict that has come to the fore is highlighted. Moreover, the process serves only as a form of conflict resolution, which translates it into a legal channel. Without criminal law, procedural procedures lose all meaning, which, however, does not put the process in a subordinate position with respect to law. Based on the functional load of law as a form of resolving social conflicts, the authors conclude that the process is functionally designed to resolve them. At the same time, the application of the criminal law norm as a result of procedural activity loses all meaning. Instead, the fact of resolving the conflict, which may occur, for example, in reconciliation of the parties, is of importance. Thus, the criminal procedure form is functionally designed to resolve criminal law conflicts arising in society.