7ENVIRONMENTAL PROTECTION AS A FACTOR OF AGRICULTURAL DEVELOPMENT IN THE REPUBLIC OF SERBIA
Vladimir Sebek1 *Corresponding author E-mail: [email protected]
ARTICLEINFO ABSTRACT
Public concern about the environmental impact of economic activities has significantly increased around the globe in recent years. Within the scope of unlawful acts, environmental delicts are among the most serious ones in terms of environmental impact, the consequences of which directly affect the quality and development of agriculture as the main branch of economic activity. The issue of environmental protection and liability can be approached from different perspectives, and the focus of the present research will be on the analysis of environmental delicts committed by legal entities, taking into consideration the importance and role of these entities in agriculture. In addition to general assumptions on legal regulation of the liability of legal entities, the authors also presented the results of research on legal entities reported, charged, and convicted for environmental delicts in the Republic of Serbia in the period from 2010 to 2017, with a special emphasis on the analysis of results obtained in the above-mentioned research areas for the territory of AP Vojvodina.
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Introduction
A healthy and preserved environment is an existential human right. Environment, observed in relation to other issues, is almost at the top of priorities of modern countries and the international community. Therefore, environmental protection is recognised as an issue that needs to be regulated in terms of enactment of laws (Drenovak-Ivanovic, 2015), but it is also necessary to develop an awareness of the preservation of the environment since a healthy environment is crucial for human existence and satisfaction of their needs, primarily in view of agricultural production, which is in a direct cause-effect relationship with the environment.
1 Vladimir Sebek Ph.D., Assistant professor, University of Business Academy, Faculty of law for commerce and judiciary, Geri Karolja Street no. 1, 21000 Novi Sad, Republic of Serbia, (work: Ministry of Interior of the Republic of Serbia, Criminal Investigations Directorate), Phone: 0640620648, E-mail: [email protected], ORCID ID (https://orcid. org/000-0002-6985-9177)
Review Article
Received: 14 September 2020
Accepted: 27 October 2020
doi: 10.5937/ekoPolj2004367S
UDC 502/504:[502.131.1:631 (497.11)
Keywords:
environment; agriculture; legal entities; liability of legal entities; environmental protection
JEL: Q013
Agricultural impact on the environment can be observed through changes occurring as a result of the mutual influence of agriculture, as a branch of economy, and the environment, as a setting in which agricultural activities are performed. The need for a healthier environment and evident negativities caused by current conventional agricultural practices, i.e. factors of ecological crisis: urbanisation, industrialisation, population growth, expansion of cities, and other settlements, have led to the endangerment of land, particularly agricultural land (Bordevic, 2018).
The development of industry in the last two centuries, and especially in the second half of the last century, has been quite rapid and without a strategy that would have taken into consideration all negative consequences of such development. Due to irresponsible behaviour of individuals, and especially corporations, countries with economies largely based on agricultural development are today faced with major environmental issues that are not only reflected in negative impact on trade and export, what many consider to be the only reason tore act, but also in endangering people's health and in negative impact on agriculture as the primary sector of economy.
Public concern about the consequences of economic activities for the environment has significantly increased around the globe over the past years. The growing problems of environmental pollution have contributed to raising awareness of the need to implement measures that enable sustainable development so that different pillars of society can find a balance between economic growth and social interest in preserving a healthy environment. Major ecological disasters have prompted a global discussion about responsibility of companies and emphasised the necessity of their involvement in the process of addressing key questions related to environmental protection, raising a number of questions regarding liability for environmental damage. It is not necessary to emphasise the significance and importance of environmental protection, although it has not been achieved at the level that we have "somewhere" drawn on the basis of existential and cultural standards and the development of social consciousness (Krstinic et al., 2017).
The level of the environmental contamination ranges from the mildest forms within tolerance limits, to the worst forms with the highest level of contamination, where the consequences are manifested in a form of environmental offense. Environmental crime directly endangers the environment, and indirectly human life and health. This form of crime, compared to other forms, is far more dangerous since it can destroy the national economy and lead to the spread of various diseases and the extinction of rare species of flora and fauna (Subosic et al., 2012). However, despite the fact that environmental crime poses a growing threat, it remains a low priority for the international enforcement community (Rice, 2008).
Threats to the environment through criminal offenses are a growing problem that causes serious damage. In recent years, the number of threatening actions has multiplied. In addition, perpetrators are prone to this type of crime because of the possibility of realising large profits with minimal risk of detection and prosecution, especially when it comes to criminal offenses with elements of organised crime of international
character (Subosic et al., 2012). Environmental crime is a serious international problem that has various forms, which are not limited to air, water, and soil pollution, or the extinction of plant and animal species, but also apply to actions accelerating climate change, drastic reduction of fish stocks, devastation of forests, etc. to the destruction of natural resources in general (Pisaric, 2011).
Environmental protection is a fundamental precondition for the development of agricultural production, which involves directing and controlling biological processes of growth and development of plants and animals. At the present level of development of productive forces, the relationship between agriculture and ecosystem equilibrium is gaining importance. So far, environmental, economic, and social imbalances have affected agricultural development and can have a negative impact on future developments (Vujicic et al., 2008).
The Census of Agriculture on the territory of the Republic of Serbia was carried out from 1 October to 15 December 2012 according to the Law on the Census of Agriculture 2011 (Official Gazette of RS, No. 104/09 and 24/11). The Census of Agriculture that took place in 2012 collected data on family agricultural holdings and holdings of legal entities and entrepreneurs according to the forms of their organisation, available land, and data on agricultural land per category of its use.
Analysing the ownership structure of agricultural holdings based on the 2012 Census of Agriculture data, we can present several basic characteristics of family agricultural holdings and holdings of legal entities and entrepreneurs, which were crucial for conducting this research:
- Available land amounts to 5,346,597 ha and makes up 68.9% of the total territory of Serbia (7,759,200 ha);
- Family agricultural holdings are dominant in the total number of holdings (99.4%);
- Holdings of legal entities and entrepreneurs are minor in number (0.5%) but significant in terms of utilised agricultural land (17.8% of the total agricultural land), and especially in terms of the average area of holdings (204.12 ha), and are important production and economic factors of agricultural development in Serbia.
- Regional distribution of agricultural land is of importance, which is significantly above average and amounts to 78.5% in the region of Vojvodina, while in the richest region of Vojvodina it amounts to over 78.3% (Sevarlic, 2015).
These results contributed to paying special attention to the research of the economic activity of legal entities, considering the fact that every economic activity can produce certain environmental damage through the execution of certain unlawful acts - economic offenses against the environment. Furthermore, due to the significant role of the region of Vojvodina in the area of agricultural activity, particular attention will be devoted to the research of economic offenses against the environment in the region of Vojvodina.
On liability of legal entities
Apart from natural persons (adults and juveniles), legal entities also appear as perpetrators of unlawful acts (misdemeanours, economic offences, and crimes). For these reasons, criminal legislation of modern countries regulates the liability of legal entities for crimes, apart from already established liability for misdemeanours and criminal offenses. Such liability of legal entities is specific regarding its basis, legal nature, elements, and other characteristics, as well as due to the special system of criminal sanctions for this kind of perpetrators of crimes. Since this is a relatively new branch of law that still does not have legal independence in a large number of countries, but is contained in provisions of basic criminal law, there is still no generally accepted name for it; however, it is most commonly referred to as "corporate criminal law".
Corporate criminal law is part - a segment of the classical criminal law. It is a system of regulations defining the concept, elements of liability, a system of criminal sanctions and procedure for their imposition and execution against legal entities as perpetrators of crimes, and a system of crimes that may be committed by these parties with the aim of suppressing acts violating or endangering protected values; or it is a set of legal norms that determine the content and scope of a state's authority to punish legal entities, where the basic premise for the application of these norms is a specific behaviour that is defined as a crime (Jovasevic, 2012).
The idea of imposing sanctions to legal entities for criminal offences, with simultaneous punishment of the responsible party, appears as a consequence of the emergence of a form of crime that cannot be prevented by punishing an individual; however, suspension of a legal entity's operations is a very effective measure. Earlier, there was an opinion in legal science that a legal entity cannot be the subject of a criminal offense, primarily due to the existence of the principle of subjective individual responsibility (nullapoena sine culpa) and the unacceptability of collective punishment.
In theory, there are three views on the criminal liability of legal entities. The first view is that there is neither criminal nor any other liability of a legal entity. The second view is that there is no criminal liability of a legal entity, but there are other forms of criminal liability - liability for misdemeanours or economic offenses (Suput, 2009). In Serbian law, the second of the above three positions has long been accepted. The regulations defined liability of a legal entity for misdemeanours and economic offenses, but not for criminal offenses. Only when the National Assembly of the Republic of Serbia passed the Law on the Liability of Legal Entities for Criminal Offenses (hereinafter: LLLECO) on October 27th, 2008, was this type of liability introduced into our law (Official Gazette of the RS, 97/2008).
A legal entity may also be liable for criminal offenses defined in a special part of the Criminal Code and other laws if the conditions for liability of a legal entity regulated by this Law are fulfilled. The Republic of Serbia, the Autonomous Province and a unit of local self-government, i.e. state bodies and bodies of the Autonomous Province and units of local self-government, cannot be held liable for a criminal offense. Other legal
entities entrusted by law with the exercise of public authority cannot be held liable for a criminal offense committed in the exercise of public authority.
Delictual liability of a legal entity is sanctioned by the Misdemeanour Law Official Gazette of the RS, 65/2013, 13/2016, 98/2016, 91/2019 and 91/2019), Companies Act (Official Gazette of the RS, 36/11, 99/11, 83/14 - other law, 5/15,44/18, 95/18 and 91/19), Law on Liability of Legal Entities for Criminal Offenses, and Criminal Code (Official Gazette of the RS, 85/05, 88/05, 107/09, 111/09, 121/12, 104/13, 108/14, 94/16 and 35/2019). Delictual capacity is the ability of a legal entity to be liable for causing damage. It can be objective, if a legal entity is liable for damage caused by dangerous situations or activities, and it can be subjective if a legal entity is found guilty of a criminal offense.
Taking into consideration that a legal entity is in all respects equal with a natural person in terms of misdemeanour liability, it is also subject to the influence of the Misdemeanour Law in terms of delictual liability. Sanctions for misdemeanour liability of legal entities prescribed by the law are: punishment, admonition, and protection measures.
The term "economic offence" was introduced into our law system through the Law on Economic Offences from 1954 and its significant theoretical development can be observed in the later period. Currently, effective Law on Economic Offences (Article 2, Paragraph 1) prescribes that "economic offence is socially harmful violation of regulations on economic and financial operations which has caused or may have caused severe consequences and which is identified as an economic offence by a regulation ofthe competent authority". Differences can be observed when misdemeanours are compared to economic offences. These differences are reflected in the area of protection so that almost all areas of life and work can be protected by misdemeanours, while economic offences are solely related to economic and financial activity. Economic offenses are considered socially harmful acts, while misdemeanours produce harmful consequences and are not as socially harmful as economic offenses. Therefore, the main difference between an offence and a misdemeanour emerges from the quantitative differentiation of social threat (Jovasevic, 1997). Sanctions that may be imposed against a legal entity in the economic criminal proceedings differ from criminal sanctions since the type of liability itself is determined in a different manner. It is necessary to identify objective liability of legal entities and subjective liability of natural persons. Types of sanctions in economic criminal proceedings are: fine, probation, and protection measures. Fine is the only punishment in this process.
In line with the purpose of the paper presented in the abstract, the remaining part of the paper will be focused on the research and results of the research on delictual liability of legal entities for economic offences committed in the field of protection of the environment used for agricultural activities, the mutual dependence between which is important for future development.
Clarifications of methodology
Results presented in this paper are obtained by analysing the content of available and relevant reports of the Statistical Office of the Republic of Serbia, within which data were identified and entered into tables specially created for this research, and in which statistical indicators of filed reports, charges and convictions of legal entities for committing economic offences in the area of environmental protection in the period from 2010 to 2017 in the territory of the Republic of Serbia were shown. The research results section also contains a tabular presentation of the aforementioned delicts committed by legal entities in the territory of the Autonomous Province of Vojvodina in the same period.
The data were obtained on the basis of statistical research conducted in the observed period and are related to the reported legal entities against whom: the proceedings for the economic offence were completed, criminal charges were dismissed or indictment was filed; in addition, the data are related to accused responsible persons and legal persons against whom the proceedings for the economic crime were completed with a decision by which: the procedure was discontinued or suspended, the indictment was dismissed or rejected, a person was released from punishment, as well as to responsible and legal persons who have been declared liable with or without a sentence imposed.
Data sources
Taking into account general characteristics of environmental crimes and delicts, there are significant limitations and shortcomings in reality regarding committed offences; however, all the data on legal entities that committed economic offences contained in the publications of the Statistical Office of the Republic of Serbia were used for analysis. These data were obtained on the basis of statistical research conducted within regular research of the Statistical Office of the Republic of Serbia and were published as part of annual reports publications: "Responsible and legal entities - perpetrators of economic offenses" for the years of 2010, 2011, 2012, 2013, 2014, 2015, 2016 and 2017.
Scope
The statistical surveys on perpetrators of economic offenses include all legal entities reported to have committed an economic offence and against whom the proceedings were completed, both in a competent public prosecutor's office and in a competent court. Thus, the statistical surveys cover the complete jurisdiction of public prosecutor's offices and courts over criminal offences in the territory of the Republic of Serbia.
Research results
Within this section, the results of the conducted research are presented, divided into three parts for ease of presentation: the first part analyses the filed reports against legal entities for environmental delicts; the second covers charges and, in the end, the third part analyses convictions of legal entities.
In addition to the general characteristics analysed in this paper, it is significant to mention the quantitative characteristics of environmental crimes (scope and participation of all categories of perpetrators, i.e. natural persons and legal entities) and their relatively small share in the total number of committed crimes. Thus, in the research that was conducted and which investigated the share of environmental crime in the total number of crimes in the Republic of Serbia for the period from 2006 to 2010, it was concluded that the share of these delicts was from 1.85% (in 2007) to a maximum of 2.12% in 2010 on average (Subosic et al., 2012).
Reports for economic offences against legal entities
In the conducted research, the data were collected on economic offenses of legal entities for environmental crimes committed in the period from 2010 to 2017. In order to present the results, tables were produced with the collected data. Data on the number of filed reports for economic offences of legal entities on the territory of the Republic of Serbia as well as on the territory of the region of Vojvodina are shown in Table 1.
Table 1. Statistical representation of reports against legal entities for economic offences in the area of environmental protection for the period 2010-2017
2010 2011 2012 2013 2014 2015 2016 2017
REPORTS Total 100 100 34 85 94 70 32 58
Inspection 78 75 26 41 66 54 23 24
Party filing the report MIA - 1 1 3 1 3 - 1
Public prosecutor - - - - 1 - - -
Other 22 24 7 41 26 13 9 33
Total 26 30 11 15 14 10 9 15
Inspection 25 28 10 14 10 6 7 9
Region of MIA - 1 1 1 1 1 - 1
Vojvodina Public prosecutor - - - - - - - -
Other 1 1 - - 3 3 2 5
By analysing statistical data for 2010, 2011, 2012, 2013, 2014, 2015, 2016, and 2017, we can conclude that the largest number of reports was filed in 2010, 2011, and 2014 and that there is an evident decrease in such reports in the succeeding years. When it comes to the party reporting an economic offence to a legal entity for a committed delict in the field of environmental protection, the largest number of reports according to jurisdiction was filed by inspection bodies, while a negligible number of reports (only one in 2014) was filed by a public prosecutor in the observed period, while, at the same period, public prosecutor did not file a single report for an economic offence against a legal entity in the region of Vojvodina.
From the statistical data collected by the Statistical Office of the Republic of Serbia, it can be concluded that there is a certain disproportion in the quality of prosecution for economic offences of legal entities for delicts against the environment. This disproportion is reflected in the difference between the number of filed reports, the number of charges, and the number of convicted legal entities for the said delicts in the observed period.
If we analyse the collected data statistically, we can observe a disproportion individually for each year. Thus, for 2011, the difference between the number of filed reports for the economic offence of a legal entity and the number of accused legal entities amounts to 30%, while the same difference in relation to convicted entities is 54%. The situation is similar for 2010, 2014, and 2015. This occurrence of disproportion between the number of reports, charges, and, in the end, convictions for perpetrators, is referred to in the criminological literature as "the crime funnel". The reasons for this situation may certainly be different, but as stated by other authors of research papers related to the analysis of delicts against the environment, the most common reasons for this disproportion between the number of filed reports, the number of defendants, and finally the number of convicts are incomplete reports in these cases, especially when parties filing a report are citizens or non-governmental organisations and deficiencies in the evidence material (Krstic, 2011).
The collected data indicate a large difference between the number of economic offenses filed in the activities of legal entities. Thus, most often reports are filed for economic offences in the activities marked as "processing industry", then "wholesale and retail trade, repair of motor vehicles, motorcycles, and items for personal use in the household" as well as "traffic, storage, and communication".
A similar situation applies to the analysis of the results collected for reports, charges, and convictions of legal entities in the region of Vojvodina in the observed period. The collected data also show a large disproportion of the number of filed reports in relation to the number of charges and convictions. The tendency of reports reduction is also present in the region of Vojvodina, which is the case on the entire territory of the Republic of Serbia, based on the exhibited data. So, for instance, in 2010 and 2011 there were 26 i.e. 30 reports filed, while in the last year of the observed period (2017) there were only 15 reports, which is almost 50% less.
Charges for economic offences against legal entities
The first level of narrowing the so-called "crime funnel" - in the case of legal entities for delicts against the environment is present in the second segment of the procedure, i.e. in the phase of pressing charges.
Analysing the statistical data for 2010, 2011, 2012, 2013, 2014, 2015 2016, and 2017, we have come to the conclusion that, in relation to the number of filed reports, generally it came to a significant reduction up to one third. So, in 2010 the number of charges was smaller by 33%, i.e. it amounted to 67 out of 100 filed reports. This trend continued next year, as well as in other years in a milder ratio.
Table 2 shows the results that refer to the number of charges against legal entities for the territory of the Republic of Serbia, as well as for the region of Vojvodina.
Table 2. Statistical representation of charges against legal entities for economic offences in the area of environmental protection for the period 2010-2017
2010 2011 2012 2013 2014 2015 2016 2017
CHARGES Total 67 70 76 62 66 49 66 45
Type of decision Procedure suspended 12 20 9 6 6 5 13 3
indictment dismissed - - - 1 - - - -
indictment rejected 2 3 4 1 3 2 2 2
released from accusation 1 1 3 1 1 1 5 2
declared liable 52 46 60 53 56 41 46 38
Region of Vojvodina Total 13 27 21 19 14 19 15 20
Procedure suspended 6 6 3 1 2 3 1 1
indictment dismissed - - - - - - - -
indictment rejected 1 3 2 - 2 2 1 1
released from accusation - - 2 - 1 - 1 1
declared liable 6 18 14 18 9 14 12 17
Convictions for economic offences against legal entities
If we focus on the analysis of the final outcome of the procedure, i.e. on the convictions of legal entities for committed delicts in the area of environmental protection, we come to the "narrowest part of the crime funnel" where the disproportion is most obvious. Thus, observed according to the number of filed reports, the number of convictions of legal entities was reduced by half on average, and even more than half in some years (as is the case, for instance, with 2011 when the difference between the number of filed applications and the number convictions was as high as 54%).
The statistical representation of the research results for the number of convictions, the type of conviction as well as the fine of legal entities for the territory of the Republic of Serbia is given in Table 3.
Table 3. Statistical representation of convictions of legal entities for economic offences in the area of environmental protection in the Republic of Serbia for the period 2010-2017
2010 2011 2012 2013 2014 2015 2016 2017
CONVICTIONS Total 52 46 60 53 56 41 46 38
Conviction Conditional 43 36 58 43 46 36 37 31
Unconditional 8 10 2 9 4 5 8 7
more than 3.000.000 - - - - - - - -
from 600.001 to 3.000.000 3 2 6 4 3 5 4 -
Fine from 300.001 to 600.000 4 6 16 16 10 10 10 6
from 15.001 to 300.000 44 36 37 32 36 24 31 30
up to 15.000 - 2 1 - 1 1 - 2
Declared liable but exempted from punishment 1 - - 1 6 1 1 -
Analysing the presented data, we can conclude that the largest number of convictions was within the unconditional conviction, while the situation with the amount of the fine was without significant differences in the observed period. The most often imposed fine was in the amount of 15.001 to 300.000 dinars (70% on average). In contrast to the mentioned fine, there were no cases with the highest possible fine imposed, during the observed period.
The situation is similar in the separately observed region of Vojvodina. Data for this region are systematized and presented in Table 4.
Table 4. Statistical representation of convictions of legal entities for economic offences in the area of environmental protection in the region of Vojvodina for the period 2010-2017
2010 2011 2012 2013 2014 2015 2016 2017
CONVICTIONS Total 6 18 14 18 9 14 12 17
Conviction Conditional 2 14 14 14 7 9 11 11
Unconditional 4 4 - 4 2 5 1 6
Fine more than 3.000.000 - - - - - - - -
from 600.001 to 3.000.000 1 - 3 1 1 - 2 -
from 300.001 to 600.000 - 2 3 5 2 1 4 3
from 15.001 to 300.000 5 15 8 12 6 8 6 13
up to 15.000 - 1 - - - 5 - 1
Declared liable but exempted from punishment - - - - - - - -
The tendency of convictions shown in the previous table reflects the situation in the region of Vojvodina. It refers both to the disproportion between the number of reports and the number of convictions, as well as to the type of conviction. The case of imposed fines is similar in this region, where the largest number of fines ranges from 15.001 to 300.000 dinars, while other fines are rarely imposed. Also, the highest fine was not imposed in this region for the observed period.
Conclusions
There are many problems that state authorities face regarding the liability of legal entities for delicts they commit in their work, particularly with regard to liability for environmental offenses. Analysing the data collected for this paper, we can classify the most significant problems into four groups.
The first group of problems relates to the fact which clearly stands out from the research, that the liability for environmental damage cannot be observed solely as an issue or problem of liability of legal entities, given that the number of detected economic offenses for environmental damage is small in relation to the total number of delicts.
The second group of problems that the state authorities face, primarily judicial ones when it comes to delicts against the environment, is the non-existence of coordinated activities between the police, prosecution, and inspection bodies. This is primarily due to the fact that the officers of the inspection bodies are professionally trained staff in the field of environmental protection (which can be concluded from the number of filed reports by this body) who can help the police and prosecutor's office seeking the direction and collecting evidence. Also, these officers are on the field, by the rules, and are the first to obtain evidence and information, which is of great importance to prove the delicts in a qualitative way.
The third group includes the problems of the non-existence of state authorities' specialization who, in accordance with the significance and danger of environment delict, would exclusively be responsible for research of concrete delicts against the environment.
Finally, the third group of identified problems encompasses problems related to proving the guilt of legal entities for the committed delict, which has a direct impact on the disproportion between the number of filed reports and the number of convicted legal entities for environmental delict. Problems related to expertise, method of gathering evidence, and similar could be included in this group. To support the abovementioned, the analysis of research results reveals that the detected number of crimes against the environment is rather small compared to the total number of committed crimes, so it can be reasonably assumed that the dark number of these crimes is significant, where in addition to actions to combat environmental pollution, this type of crime is dominant among the perpetrators due to the possibility of obtaining large profits with minimal risk of detection and prosecution.
Conflict of interests
The authors declare no conflict of interest.
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