Environmental Offences Research Articles

The transition to a «green economy» and some problems of environmental offenses

The transition to a «green economy» and some problems of environmental offenses

LEGAL AND NON-LEGAL AGRICULTURAL PRACTICES: TOWARD A SUSTAINABLE FUTURE IN MALAYSIA’S PALM OIL INDUSTRY

As a major global producer of palm oil products, Malaysia is familiar with criticisms of its palm oil cultivation, poor agricultural practices and decisions during the planting process. Loss of biodiversity and deforestation resulting from unsustainable palm oil practices are perceived as major setbacks for the environment in Malaysia. However, at the same time as Malaysia stands committed to the palm oil industry and its contribution to job growth and poverty reduction, the relevant stakeholders are creating strategies for sustainable production. Together with relevant environmental laws to prevent and control impacts from climate change, loss of biodiversity and deforestation, environmental impact assessment (EIA) procedures to limit environmental impacts are also being applied. Many legal and non-legal measures to ensure sustainable palm oil production practices have been continuously debated, created or implemented over the past decades. These include certification schemes, penalties for environmental offenses, imposing environmental taxes or incentives as corrective and rehabilitative tools, and contributions to an Environmental Fund, as provided in the Environmental Quality Act (EQA) 1974. Furthermore, any new initiatives must ensure that palm oil cultivation practices adhere to and embrace the principles envisaged in the UN Sustainable Development Goals (SDGs) 2030, Roundtable Sustainable Palm Oil (RSPO), and Malaysia Sustainable Palm Oil (MSPO), in order to achieve SDGs 2030.

METHODOLOGICAL APPROACHES TO EXPERT RESEARCH ON DAMAGE ESTIMATE RESULTING FROM LAND CLOGGING

Definition of damage caused through land clogging constitutes a significant share in the total amount of environmental offenses that are considered by courts in Ukraine and their investigations are the most difficult in this category. Majority of losses from land clogging are determined as significant amounts considered according to the Criminal Code of Ukraine as grave or especially grave consequences of environmental legislation violations. From the point of view of legal mechanism, the definition of damage caused through clogging of land resources is based on the branch Methodology for determining the amount of damage caused through pollution and clogging land resources by means of violation of environmental legislation, approved by order of the Ministry of Ecology and Natural Resources No 171 from 27.10.1997 (as amended). Failure to comply with legislation on the protection and rational use of land resources resulting in land clogging is determined according to this Methodology. This Methodology is applied in case of violations revealed during the state supervision (control) of economic activities to comply with environmental (land) legislation by economic entities (according to the Law of Ukraine "On the Main Principles of State Supervision (Control) in the Area of Commercial Activity"). Employees of the State Ecological Inspectorate of Ukraine use the Methodology in particular to calculate the amount of compensation for damage caused to the state as a result of land clogging. Analysis of an expert practice of using the Methodology demonstrates its low arbitrage effect, since a significant part of the claims brought forward to debtors for compensation of damages or charges are not satisfied by the judicial authorities. Comprehensive methodology developed at KhRIFE makes possible to obtain correct from a legal point of view, complete, objective, scientifically, technically and economically justified answers to questions related to the calculation of the damage caused through land clogging. Разработанная в Харьковском НИИСЭ Комплексная методика дает возможность получить корректные с правовой точки зрения, полные, объективные, научно, технически и экономически обоснованные ответы на вопросы, которые касаются расчетов размера вреда, обусловленного засорением земельных ресурсов.

Harnessing local traditional authorities as a potential strategy to combat the vagaries of climate change in Zimbabwe.

While the devastating vagaries of climate change are ravaging communities the world over, especially in Africa, and Zimbabwe in particular, the role of traditional authorities is being overlooked. This paper argues for a relentless push towards the unimpeded involvement of local traditional authorities (LTAs) in the mobilisation of rural communities to adopt appropriate climate change adaptation practices in Zimbabwe. Given its complexity and uniqueness, external intervention through government and non-governmental agents alone can hardly foster climate change adaptation particularly at local levels within communities. Traditional leaders, who have for a long time been useful in the governance of people in various rural communities, can play a supportive role in climate change adaptation. Traditional leaders do not only serve as governance authorities but also know the traditional strategies of combating the negative effects of climate change. Despite the pressure from political interference and the advent of western technological advancement, a lot could still be done to buttress the authority and respect vested in chiefs, headsmen and village heads in the country. LTAs have the power to manage grassroots communities; hence they can be utilised as drivers in the use of traditional climate change adaptation strategies. The paper concludes that political interference is one challenge faced by abusing traditional leadership as a means to gain political mileage. The paper recommends for extended capacity building on the part of traditional leaders to improve their knowledge base. This will enable them to appreciate the integration of indigenous and modern climate change adaptation strategies. It further recommends the revitalisation of the traditional council (Dare raMambo) to deal with environmental offenses with the scope of assisting government efforts to ensure sound ecological practices within communities.

Biomarkers for the Rich and Dangerous: Why We Ought to Extend Bioprediction and Bioprevention to White-Collar Crime

There is a burgeoning scientific and ethical literature on the use of biomarkers—such as genes or brain scan results—and biological interventions to predict and prevent crime. This literature on biopredicting and biopreventing crime focuses almost exclusively on crimes that are physical, violent, and/or sexual in nature—often called blue-collar crimes—while giving little attention to less conventional crimes such as economic and environmental offences, also known as white-collar crimes. We argue here that this skewed focus is unjustified: white-collar crime is likely far costlier than blue-collar crime in money, health, and lives lost. Moreover, attempts to biopredict and bioprevent blue-collar crime may entail adopting potentially unfair measures that target individuals who are already socio-economically disadvantaged, thus compounding pre-existing unfairness. We argue, therefore, that we ought to extend the study of bioprediction and bioprevention to white-collar crime as a means of more efficiently and fairly responding to crime. We suggest that identifying biomarkers for certain psychopathic traits, which appear to be over-represented among senior positions in corporate and perhaps political organisations, is one avenue through which this research can be broadened to include white-collar crime.

Ecocentrism and criminal justice

Ecocentrism refers to valuing nature for its own sake. This ecophilosophical orientation requires that all social practices incorporate ecological sensitivities and heightened awareness of the intrinsic value of non-human entities. This article explores what ecocentrism means for criminal justice and how the core principles of an ecocentric worldview translate into concrete application. Trends within criminal justice that are broadly supportive or reflective of ecocentrism are summarized. The article also considers the limitations of ecocentrism, particularly in the context of criminal law and in regards to the prosecution of human subjects for environmental offences. A basic premise of the article is that for those interested in eco-justice and green criminology, it is vitally important to describe what an eco-just future might look like, and this includes recognition of and support for already existing ecocentric initiatives evident in some policies and practices across criminal justice institutions.

New Dynamics of Environmental Law Enforcement

Using an empirical assessment of the use of enforcement undertakings by the Environment Agency and the engagement of the courts with the recently enacted sentencing guidelines for environmental offences, this article argues that the enforcement of environmental law is undergoing significant change. This change manifests itself in an increased reliance on written negotiated agreements in the form of enforcement undertakings by the Enivironment Agency and the willingness of the courts to hand down significant fines in cases against certain types of polluters. These new dynamics suggest that negotiation continues to play an important role in the enforcement of environmental law, albeit in a contractualized form. The application of the sentencing guidelines conversely suggests that environmental offences are no longer trivialized by the courts. Taken together, these emerging dynamics not only create specific incentives between agencies and offenders but also call into question established understandings and perceptions of regulatory enforcement.

THE ROLE OF THE REGIONAL FUND FOR ENVIRONMENTAL PROTECTION AND WATER MANAGEMENT IN SZCZECIN INTHE FINANCING OF THE SYSTEM OF INFRASTRUCTURAL WATER AND WASTEWATER MANAGEMENT INVESTMENTS IN THE REGION

The Regional Fund for Environmental Protection and Water Management in Szczecin is an element of financing the environmental projects in the region. On the basis of public funding, sourced from environmental charges and penalties for environmental offences within the framework of statutory distribution, in order to meet the requirements of the beneficiaries, a set of financial tools has been developed which contribute to the implementation of environmental projects. On the basis of analytical-descriptive method, an evaluation of the functioning of the Fund was carried out, in relation to the basic budget categories within the years 2009-2016. In particular, the role the Fund played in regulating water and sewage management in the West-Pomeranian Voivodeship, also as the Implementing Authority for environmental axles of the Infrastructure and Environment Operational Program, has been addressed.

Životna sredina i pravna zaštita životinja u Republici Srbiji

The aim of this study was to investigate the application of scientifc methods of animal protection in the legal legislation of the Republic of Serbia, through assaults on the environment. Apart from the introductory defnition of the subject matter, normative developments of all legal norms protecting the animal rights have been described as well. From the results of the research which were obtained through the application of legal and dogmatic scientifc methods, content analysis, quantitative and qualitative description and correlation, it can be concluded on the grounds of several fndings as follows: contemporary legal theory and legislation of the Republic of Serbia do not deny the protection of animal rights; within the framework of codifcation of the Serbian substantive criminal law which was performed in 2005, the criminal and legal norms providing legal animal protection have not gain their importance yet, primarily since they are classifed under the environmental offences and not under an independent chapter of the criminal law which will be justifed. The fndings indicate that the loss of crime in the offences against life, physical integrity and welfare of animals make more than a half in the total number of criminal charges against the suspect charged with committing offences against animals.

Organized Environmental Crime in Russia and Abroad: Criminological Characteristics and Countermeasures

Environmental crime is a constantly evolving form of criminal activity and its danger to the public is often underestimated. Environmental crime around the world is characterized by the emergence of new forms of criminal behavior, improvement of methods of committing crimes, a steady increase in the involvement of organized criminal groups and communities in their commission. The structure and nature of environmental crime have a distinct regional character, defined by parameters such as the environment, the presence on the territory of natural resources, proximity to state borders, as well as the effectiveness of conservation and law enforcement. Organized environmental crime, along with environmental terrorism, today, poses a significant threat to national security. Its distinctive features include: the durability and stability of a criminal organization, which, from an organizational and economic point of view, in most cases effectively manages complex criminal activities and has the ability to minimize the arising risks; long-term planning activities; the involvement of physical persons and commercial structures; the creation of criminal networks. Another characteristic is its focus on the market (including illegal). The main objective of criminal groups is to make profit. Often organized crime groups engage in criminal activities in various areas, committing environmental, economic and other types of crime, while corruption is a vital feature. Transnational organized environmental criminal activity is carried out in such key areas as illegal trade in rare and endangered species of wild fauna and flora and their derivatives; illegal felling of forest plantations and the trade of illegal timber; illegal trafficking of waste and illegal transportation, storage, discharge and disposal, including the transboundary movement of hazardous wastes; illegal fishing; illegal trade in ozone-depleting substances; illicit trade in radioactive substances and the illicit dumping of radioactive waste. An important role in the fight against organized environmental crime is given to the joint efforts of the law enforcement authorities of different States to prevent environmentally criminal behavior and to neutralize all stages of the crime: planning, illegal resource extraction, transportation, distribution, laundering of proceeds of crime. The elimination of the economic basis of criminal groups, reducing its profitability is the key to success in combating it. Improvement of international legislation will make it possible to create a comprehensive system of measures against organized environmental crime at the level of individual States and to ensure harmonization of national legislative systems from the point of view of terminology, formulations, and sanctions imposed for environmental offences by organized groups

The ecocrime directive and its translation into legal practice

Directive 2008/99/EC, on the protection of the environment through criminal law, was approved after fierce dispute among European institutions. Its aim was to harmonise the definition of environmental offences in the EU and to ensure that they would be punished with ‘proportionate, effective and dissuasive’ criminal sanction. The authors, after having outlined the notion of environmental crime that the harmonisation instrument wishes to combat, critically assess its policy objectives and investigate the legal and practical outcomes of its implementation. In the final paragraph, they discuss the challenges faced by national authorities when trying to translate such supranational legislation into court practices.

TYPOLOGICAL DISTRIBUTION OF THE ENVIRONMENTAL OFFENDERS BASED UPON THE INTENSIVENESS AND STABILITY OF THE CRIMINAL BEHAVIOR

As a result of analysis of the general theoretical knowledge of the criminal personality and the empirical facts the author suggests the typology of people who commit ecological crimes. The article handles the author’s version of typological distribution of the environmental offenders based upon the intensiveness and stability of the criminal behavior. Three types of environmental offenders such as situational, conventional and professional along with several sub-types of them have been marked and described. The situational type includes individuals who are prone to committing an environmental offence under the influence of external factors or an unfavorable situation, being unable to find a legitimate way out of it. Immoral attitudes of persons of this type are insignificantly manifested. More relevant in the process of offence determination are the defects in the mechanism of social environment – personality interaction in a difficult situation, including because such a person is not prepared for it. The conventional type includes individuals who are characterized by significant deformation in the structure of social orientation. As compared to the previous category, the positive component is manifested to a much lesser extend, socio-psychological features of personality are unstable and contradictory. This type has low legal awareness, including in environmental area, lacks distinct limits between moral and immoral, between «the norm» and «the offence». The majority from this type are anti-social persons who have actually dropped out of the system of normal communications and who live in a parasitic manner for a long time. Some of them are engaged in vagrancy, there are also convicted persons, as well as alcohol and drug addicts. The «professional» type includes individuals who commit offences as if it is his/her trade and for whom such encroachments are a primary or secondary source of income. These persons commit ecological crimes as a logical component of their conventional manner of behavior and the crime stems from persistent anti-social attitudes and social views of these persons. Unlike other categories, persons classified into the ‘professional’ type, actively create a situation for committing a crime and are able, if necessary, to adjust a particular situation to their own benefit. Several sub-types of environmental offenders are also marked out, such as family, negligent, practitioner, legal, office and organizational sub-types. As it has been established, from among environmental offenders classified into the «professional» type, the most dangerous category are «office and organizational» offenders who by nature of their official duties should counteract criminal activities, but instead, contrary to public and state interests, they take charge of the illegal business. This type of offenders includes officers of the police, the State Security Service, the Prosecutor’s Office, the Boarder and Customs Service, forest inspection and fishery inspection authorities. It is noted that typological characteristics of persons committing ecological crimes have different levels of manifestation and may be combined in a different way. Therefore, it is possible to refer to significant variability of types in this category of persons, which allows supplementing the proposed typologies with new types and sub-types.

Corporate boards and environmental offence conviction: evidence from the United Kingdom

PurposeThis paper aims to report the results of an investigation into the relationship between corporate boards and the likelihood of a firm being convicted of an environmental offence in the United Kingdom (UK).Design/methodology/approachThe study uses binary logistics regression analysis to model the relationship between corporate boards and the likelihood of a firm being convicted of an environmental offence in the UK, controlling for firm size, financial leverage and profitability.FindingsThe results suggest that the likelihood of a firm being convicted of an environmental offence increases with board size but decreases with the presence of a woman on the board. No support is found for the authors’ hypotheses about the proportion of outside directors and the presence of a lawyer on the board. Marginal effects’ results also show that adding one member to the board increases the chance of a firm being convicted for an environmental offence by 4.2 per cent, while having a woman on the board decreases the likelihood of a firm being convicted of an environmental offence by 31.8 per cent.Research limitations/implicationsThe sample size of 55 firms is small which could affect the generalisability of the study.Originality/valueThe study uses proprietary data obtained from the UK Environmental Agency to provide evidence for the first time how corporate boards affect the chances of a listed firm being convicted of an environmental offence in the UK.

ДО ПИТАННЯ ПІДСУДНОСТІ ЕКОЛОГІЧНИХ СПОРІВ

The scientific article is devoted to the delimitation of jurisdiction of courts in considering and resolving cases in the field of ecology on the basis of case law and positions of scientists while highlighting the variety of possible problematic aspects faced by both parties and courts on this issue. It is proved that the category of jurisdiction is significantly developed in the doctrine of law and is clearly enshrined in each piece of legislation governing a particular type of procedural law. At the same time, based on the spread of environmental offenses established by criminal and administrative law, namely, the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine, some other regulations, the issue of lack of a unified notion of jurisdiction over environmental offenses remains relevant. Emphasizing the problematic aspects, the peculiarity of the implementation of the constitutional right to a safe environment was noted, in particular by protecting the violated right through members of the public, the provisions of which are provided by the 1998 Aarhus Convention. Relevant examples in the field of justice are given. The critical importance of the case law on establishing the jurisdiction of environmental cases has been established and the variety of possible problematic aspects faced by both the parties to the dispute and the courts on this issue has been highlighted. As a result, it is noted that when considering disputes over environmental violations in general, the decisive indicator of the assignment of such cases to a particular jurisdiction is the nature of the dispute, and only then - the subject composition and the actual subject of the dispute.

PERTANGGUNGJAWABAN PIDANA PENCEMARAN LINGKUNGAN HIDUP YANG DILAKUKAN OLEH KORPORASI

Research on criminal liability of environmental pollution by corporations, multinational corporations have shown a massive accumulation of wealth and created a wide range of personalities. Whereas in the field of criminal law, which is heavily linked to accountability referred to in the Criminal Code (KUHP) only recognizes individuals as the subject of criminal law. Corporations not yet seen as a subject of criminal law. However, in subsequent developments, it is mentioned in the special criminal law. The relationship with vicarious liability or corporate liability in criminal law can be described as the imposition of criminal responsibility to a person in the capacity of the principal offender, based on the offense or at least an element of offense committed by another person. The person who acts, however, must be responsible only for his actions. It takes firmness to put the corporate criminal responsibility on the environmental offense so that the corporation that carries out negligence in exploiting nature causing pollution can be punished according to its fault. Similarly, socialization is needed to society about the possibility of environmental depictions that must be accounted by the corporation. It is so important to capture community participation in maintaining environmental wisdom.

Public Opinion and the Criminalization of Environmental Offenses

The article deals with the consideration of public opinion in the criminalization of environmental offenses, given the results of a questionnaire survey of the population to assess the status of environmental protection, the degree of public danger of the crimes of various groups, including environmental, concerns about their protection against illegal encroachments on the ecological safety. Attention is drawn to the fact that the results obtained can be used in solving the issue of criminalization of illegal encroachments on the environment.

Book review: Interpreting Environmental Offences: The Need for Certainty

Book review: Interpreting Environmental Offences: The Need for Certainty

The Strict Criminal Liability in Iran’s Criminal Legal System

The strict criminal liability is one of the institutions which has been accepted and expanded its dimensions in countries, including England, since 19<sup>th</sup> century. Although, criminal intent or fault is the most important elements of every offenses, but, due to some reasons, such as expediency, necessity, benefit, increasing prevention index, the mens rea element of offense, fully or partially, is sometimes removed or presumed. In Iran’s criminal legal system, this legal institution has not been considered formally and explicitly by the legislator, but recently, Iranian legal experts, given some existing necessities, try to put some offenses into the category of the strict criminal liability. In fact, some offencesin criminal legal system, namely traffic offences, bounced cheque, injuries resulted from medical operations and some environmental offences, can be placed under the title of the strict criminal liability. Despite many problems to which the acceptance and development of the strict criminal liability may be faced, It seems, in many cases, this institution can solve the problems related to difficulties of proof and ascertainment of the criminal intent beforecourts. Also, today, Iranian judicial courts don’t take into account the mens rea practically and presume itin many cases.

A New Environmental Protection Law, Many Old Problems? Challenges to Environmental Governance in China

Through a three-year revision involving various stakeholders, China has enacted a new Environmental Protection Law (EPL). The new law seeks to harmonize economic and social development with environmental protection and for the first time establishes clear requirements for the construction of an ecological civilization. It toughens the penalties for environmental offences with specific articles and provisions for raising public awareness. It also places greater responsibility on local government and law enforcement for the protection of China’s environment. However, many of the problems identified in the old EPL and especially the obstacles to its implementation have not been fully addressed and resolved. Effective environmental governance entails not only environmental laws but also implementation mechanisms, accountability regimes, and institutional arrangements. Raising the status of the EPL and of the general environmental protection apparatus is only the first step to meeting China’s environmental challenges. More efforts in the area of enforcement and implementation will lead China to a cleaner future.

Corporate Manslaughter and Corporate Homicide Act 2007: A 'Cadmean Victory' or a Worthwhile Reform?

There is no doubt that much of our every day life is affected and influenced by corporations and other organizations. In particular, today, more than ever before, the relationship between corporations and human beings can be either direct in the form of employment or even indirect in that corporations operate facilities that are widely used by humans, such as trains and ferries. While it has long been accepted that companies can be held liable for a wide range of offences such as environmental offences or financial offences, the liability of companies in cases involving human casualties has been much more controversial and debatable. This is because the “identification doctrine” used by the prosecution to demonstrate corporate liability in such cases has been proved to be ineffective, especially when large corporations were involved, rendering as such their conviction for manslaughter almost practically impossible. More specifically, the evident procedural hurdles of the “identification doctrine” have led to an increased public opinion that a change was needed, exerting as such pressure on the Parliament to change the law. The response came from the Parliament in 2007 with the enactment of the Corporate Manslaughter and Corporate Homicide Act.This paper examines whether the Act achieved its main objective to eliminate the procedural deficiencies of the “identification doctrine”, making it, as such, easier to hold large corporations liable in cases involving the death of individuals. It argues that it is doubtful whether such an objective has been achieved and whether the test under the Act will be more effective than the old “identification doctrine”. In particular, it illustrates that, despite the long consultation process before its enactment, the importance of the Act may lie only in the symbolic creation of a statutory offence of “corporate manslaughter”. Finally, it concludes by questioning whether that “symbolic” importance can transcend the Act’s identified deficiencies or whether the Act can be characterized as a “Cadmean Victory” over the problematic “identification doctrine” – a victory which is tantamount to a “defeat”.