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УДК 351.74 : 342.922
Legeza Yevhen Oleksandrovich Doctor of Law, Professor, Professor of the Department of public and private law, University of Customs Law and Finance, Dnipro, Ukraine ORCID: https://orcid. org/0000-0001-9134-8499 DOI: 10.24412/2520-6990-2023-5164-63-66 ADMINISTRATIVE AND LEGAL REGULATION OF ENVIRONMENTAL PROTECTION: INTERNATIONAL PRACTICE AND PRIORITIES FOR IMPROVEMENT
Легеза €вген Олександрович
Доктор юридичних наук, професор, професор кафедри публгчного та приватного права Утверситету митно'1' справи та фтанав, м. Днтро, Украта ORCID: https://orcid. org/0000-0001-9134-8499
АДМШ1СТРАТИВНО-ПРАВОВЕ РЕГУЛЮВАННЯ ОХОРОНИ НАВКОЛИШНЬОГО СЕРЕДОВИЩА: М1ЖНАРОДНА ПРАКТИКА ТА ПР1ОРИТЕТИ ВДОСКОНАЛЕННЯ
Abstract.
The purpose of the research is to reveal international practices, criminal law protection and the system of punishments for environmental crimes in the field of environmental protection. Main content. The paper uses a comparative method to study the criminal environmental protection international practices of some European Union countries, in particular Spain, Germany and Austria. In addition, the study of model criminal law standards of the EU made it possible to evaluate them as a factor that leads to the unification and universalization of the criminal legislation of the EU countries in the field of environmental protection, harmonization of criminal law and related sectors. Methodology: Research of materials and methods based on the analysis of documentary sources and regulatory legal acts of foreign countries. The dialectical method of cognizing the social reality facts is the basis on which the formal legal and rather-legal approaches are largely based. Conclusions. The absence of developed unified approaches to its unification and practical application in the countries of Europe and Asia has been established. Attention is focused on the attempt of individual countries (the Republic of Poland, the Republic of Lithuania) to determine the criteria for the correlation of main and additional punishments, to establish criteria for the equivalent application of sanctions related to isolation and without isolation, and also to expand the boundaries ofjudicial review in the field of setting the degree and type of measures of criminal liability, depending on the factual and legal circumstances of the criminal case.
Анотаця
Метою досл1дження e виявлення м1жнародно'1 практики, кримталъно-правово! охорони та системи покарань за еколог1чн1 злочини у сфер1 охорони навколишнъого природного середовища. Основний змгст. У роботi за допомогою поргвнялъного методу досл1джено кримгналъно-правову м1жнародну практику за-хисту довюлля окремих крат Свропейсъкого Союзу, зокрема 1спанп, Шмеччини та АвстрИ. Крiм того, до^дження моделъних кримiналъно-правових стандартiв СС дало змогу оцiнити 1'х як чинник, що веде до ^фжацп та утверсал1зацИ кримталъного законодавства крат СС у сферi охорони навколишнъого середовища, гармонгзацИ кримталъного законодавства та пов 'язаних з цим. секторах. Методологiя: До-слiдження матерiалiв i методiв на основi анал1зу документалъних джерел та нормативно-правових актiв зарубiжних крат. Дiалектичний метод пiзнання фактiв соцiалъноi дiйсностi e тieю основою, на якш знач-ною мiрою Трунтуютъся формалъно-правовий i вiдносно-правовий тдходи. Висновки. Встановлено вiд-сутнктъ розроблених единих пiдходiв до ii унiфiкацii та практичного застосування в кранах Свропи та Ази. Акцентовано увагу на спробi окремих крат (Полъсъка Ресnублiка, Литовсъка Республжа) визначити критери сniввiдношення основних i додаткових покаранъ, встановити критерп рiвноцiнного застосування санкцт, пов 'язаних iз iзоляцieю та без iзоляци, та також розширити межi судового розгляду у сферi встановлення ступеня та виду заходiв кримiналъноi вiдnовiдалъностi залежно вiд фактичних та юридичних обставин кримiналъноi справи.
Keywords: administrative and legal regulation environmental protection, environmental policy, environmental protection, international practices, pollution control.
Ключовi слова: адмiнiстративно-nравове регулювання охорони навколишнъого середовища, еко-логiчна nолiтика, охорона навколишнъого середовища, мiжнародний досвiд, контролъ забруднення.
One of the main tasks of criminal legislation, de- of environmental protection. The effectiveness of such fined by Article 1 of the Criminal Code of Ukraine protection depends, inter alia, on the scientific substan-(hereinafter - the Criminal Code), is the legal support tiation of the relevant legal rules. Particularly important
are the problems of the qualitative component of criminal law, which should be ensured by a set of requirements that make up the legislative technique as a system of rules, techniques and means of creating laws, effective in form and perfect in content, formed by theory and practice.
Considering the relevant EU countries criminal law standards, it is worth noting that their allocation in a separate section of the criminal code is characterized by extreme diversity. According to M.I. Khavroniuk classification, groups of criminal acts that encroach on the environment are separated into separate sections (or chapters, paragraphs, etc.). The special part of the criminal codes of many European countries (Khavroniuk, 2007).
Thus, in the Criminal Code of Spain dated 1995, there is a section XVI "On crimes related to the management of territories and the protection of historical heritage and the environment", which provides chapters: III "On crimes against natural resources and the environment" and IV "On crimes related to the protection of flora and fauna". An analysis of the relevant standards confirms certain features of their structure: on the one hand, they are formulated in a general way, that is, one standard provides for liability for encroachment on several elements of the environment; on the other hand, the signs of the objective element of these standards are characterized by a high level of detail.
For example, Article 325 criminalizes anyone "who in breach of an environmental rule directly or indirectly causes or makes emissions, spillages, radiation, extractions or excavations, filling with earth, noises, vibrations, injections or deposits, in the atmosphere, the ground, the subsoil or the surface water, ground water or sea water, including the high seas, even those affecting cross-border spaces, as well as the water catchment basins, that may cause a significant imbalance in natural systems".
A separate standard (Article 326) defines the circumstances in the presence of which "the punishment is imposed one level higher, regardless of the punishment that can still be imposed under this code". Such circumstances include: production or activity existing clandestinely without administrative consent and administrative approval for its implementation; failure to comply with the order of the administrative authority to collect or temporarily suspend the activities described in the previous article; falsification or willful non-disclosure of information regarding aspects related to the environment; impeding access for the control activities of the administration; creating a risk of irreversible damage or disaster; carrying out illegal discharge of water during restrictions.
As in Ukrainian legislation, the Criminal Code of Spain provides for punishment for environmental crimes that combine imprisonment with alternative punishments. In particular, for the specified Article 325, this is imprisonment for a term of six months to four years, a fine in the amount of eight to twenty-four monthly salaries and deprivation of the right to engage in a certain profession or activity for a term of one to three years.
Attention is drawn to the establishment of a fairly clear gradation of punishment depending on the form of guilt. By so doing, Article 331 contains an indication of the following content: "The acts foreseen in this Chapter shall be penalised, as appropriate, by the lower degree punishment, in their respective cases, when committed by serious negligence".
As in Ukrainian legislation, the standards establishing responsibility for committing environmental crimes are not concentrated in only one chapter of the Special Part of the Spanish Criminal Code. The standards establishing responsibility for arson or fire in a forest or other flora object (Articles 352-358), placed in section XVII "Crimes against collective security". It also contains standards establishing responsibility for crimes in the field of nuclear, radiation (Articles 341345) and biological safety (Article 349).
The main source of criminal law of the Federal Republic of Germany (FRG) is the Penal Code or the Criminal Code dated 15.05.1871 as amended on 13.11.1998. The need to criminalize new types of socially dangerous acts, including those of an environmental nature, led to changes in the criminal legislation of the Federal Republic of Germany. Significant changes were made by the laws dated 28.03.1980 "On criminal offences against the environment" and dated 27.06.1994 "On the fight against crime related to offences against environment" to §§ 321-330 of the former section 28 of the Code.
The current version of the Criminal Code of the Federal Republic of Germany contains section 29 "Crimes against the natural environment", which combines 13 paragraphs, of which only 10 (§§ 324-330) are aimed at protecting nature, and three are of a "technical" nature: define the general concepts of section 29, provide for the basis for exemption from liability in connection with active repentance, seizure of objects and means of committing a crime.
Unlike Spanish legislation, the Criminal Code of the Federal Republic of Germany differentiates responsibility for encroachment on certain elements of the environment. In such a way, §§ 324-326 contain corpus delicti related to pollution of water bodies, soil and air. Like similar standards of Ukrainian legislation (as a rule, these are the first parts of the relevant articles), a significant part of the compositions in relation to criminal pollution of the environment are designed as torts of danger, that is, we are talking about creating a threat of dangerous consequences.
At the same time, some corpus delicti are designed as formal ones. Consequently, according to the disposition of § 324 "Pollution of water bodies", punishment is imposed on the one who illegally pollutes the water body or otherwise unfavorably changes its properties. In this standard, water bodies are considered both surface water resources and groundwater, and the sea. To apply the standard, there is no need to prove the damage to water bodies. It is enough to establish the fact of pollution of a water body in violation of the rules enshrined in other environmental laws, in particular the Water Resources Management Act, the Act on the Procedure for Obtaining Permits for Discharge of Waste Water into Water Bodies. As noted in the specialized literature, the
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basis of responsibility is systematic (regular) pollution by wastewater (Popov, 2012).
The experience of criminalizing the hazardous environmental impact of noise and vibration in the European Union deserves attention. If liability for such acts in the Criminal Code of Spain is established by a general standard (Article 325), then the Criminal Code of Germany contains a separate standard - § 325a "Causing Noise, Vibrations and Non-ionizing Radiation". Responsibility is borne by the person who, during the operation of the installation, especially the production unit or machine, violating administrative and legal obligations, creates noise that can harm the health of another person in the area adjacent to the installation.
A similar standard is contained in the Austrian Criminal Code (§ 181a "Severe injury caused by noise generation") (Austrian Criminal Code, 2004).
It should be noted that in the Ukrainian criminal legislation there are no analogies to these standards.
The attitude to the criminalization of negligent environmental crimes is significantly different from the Ukrainian legislation. In the Criminal Code of Ukraine, criminal law standards of this category are built on the principle of parification (equalization, comparison) of intent and negligence, which reflects the conceptual approach of domestic legislation on which the theory of responsibility for intentional and negligent crimes is mainly built. According to this principle, the legislation does not contain special provisions on limiting liability for acts committed through negligence, and it itself is fundamentally permissible without special instructions in the law (excluding, of course, cases when this crime cannot be committed by negligence) (Melnyk, 2014).
As is well known, the EU framework decisions are adopted with the aim of convergence of legislative and regulatory provisions established by the member states as instruments for the harmonization of criminal law and related sectors. An important advantage of such standards is that they are designed for advanced regulation, because they regulate issues that are not fully developed in national legislation. Therefore, model standards can be used not only to unify national legislation, but also to improve it. As global standards or tools for their creation, model standards help to identify deformations of the current national legislation, as well as create a means of counteracting the influence of conservative and short-term factors.
In this context, the EU Council Framework Decision "On the Protection of the Environment through Criminal Law" defines the following premeditated crimes:
— release, emission or distribution of large quantities of substances or ionizing radiation into the air, soil or water that has caused death or serious harm to human health;
—unlawful release, emission or distribution of large quantities of substances or ionizing radiation into the air, soil or water, which caused their significant deterioration or created conditions for such deterioration, or caused death or serious harm to human health or protected objects (including cultural monuments), property, animals or plants;
— illegal disposal, processing, storage, transportation, export or import of waste, which caused death or serious harm to human health or significant damage to the state of air, soil, water, fauna or flora;
— unlawful commissioning of factories carrying out hazardous activities, regardless of their commissioning, causes or creates a threat of death or serious harm to human health or significant damage to the state of air, soil, water, fauna or flora;
— unlawful production, processing, storage, use, transportation, export or import of degradable or other hazardous radioactive substances, which has cause or is capable of causing death or serious harm to human health or significant damage to the state of air, soil, water, fauna or flora;
— unlawful retention, capture, harm, killing or trade in species of wild flora and fauna or their part, protected by national law in order to prevent their extinction;
— illegal trade in ozone-destroying substances.
Article 3 of the Decision imposes on the state the
obligation to recognize as crimes the same acts committed by negligence.
Another step towards improving criminal law standards at the level of the EU and its member states was made thanks to the adoption of the Directive of the European Parliament and of the Council dated November 19, 2008 "On the Protection of the Environment through Criminal Law". Member states have committed themselves to a number of changes to their national legislation. These changes concern the criminal liability of legal entities, liability for incitement and aiding, the introduction of new offenses (including for trade in specimens of protected species of flora and fauna, their parts and products, behavior that leads to the destruction of natural habitats in protected areas, production, import, export, introduction or use of substances that destroy the ozone layer) and clarification of already existing penal prohibitions concerning the handling of waste, hazardous substances, etc. (Dzhunusova, 2012).
Biiciioiik'ii. The analysis of the legislative practices of criminal legal environmental protection in some countries of the European Union was based on a study of the standards that determine responsibility for committing environmental crimes in the national legislation of Spain, the Federal Republic of Germany and Austria, as well as model criminal law standards of the European Union. The rather-legal analysis carried out in the paper makes it possible to assume that the process of improving the relevant standards of domestic legislation, including through the criminalization of new socially dangerous encroachments on the environment, will not be limited.
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