CC BY
50DOI 10.24411 /2076-1503-2020-10820 BAGREEVA Elena Gennadievna,
Doctor of Law,
professor of the Department of International and Public Law of Financial University under the Government
of the Russian Federation, e-mail: [email protected]
MAMERZHANOV Victor Ilyich,
Student of Financial University under the Government of the Russian Federation, Faculty of Law, e-mail: [email protected]
PLYUSNINA Yulia Andreevna,
Student of Financial University under the Government of the Russian Federation, Faculty of Law, e-mail: [email protected]
PROBLEMS OF ENVIRONMENTAL LEGISLATION AND THEIR IMPACT ON THE IMPLEMENTATION OF ENVIRONMENTAL HUMAN RIGHTS
Annotation. This article provides a brief historical analysis of the formation of environmental law in Russian legislation, analyzes the issue of fixing in Russian legislation a set of measures of criminal liability for violations in the field of environmental protection, as well as environmental management. The authors of the scientific article propose changes to the current environmental legislation, with the further replacement of certain provisions and norms in Russian criminal law, in order to change the structure of classification of environmental crimes. We draw logical conclusions about the imperfection of the present legal framework that can regulate all environmental legal relations, the need for the formation and further development of the Institute of environmental legal responsibility, and the need to reform these sources of environmental law. In the course of the work, such methods as formal legal, comparative, analysis of monographs and articles, analysis of the legal framework and synthesis were used. The sources of the article are the works of Russian scientists working in the field of environmental law.
Key words: environmental law, environmental legal responsibility, environmental crime, environmental legal relations, sources of environmental law, scientific research, Russian legislation, historical analysis, criminal liability, environmental protection.
socialist property, the presence of command and administrative methods of management in all areas of public administration, the dominance of Communist ideology. But, the real situation was reflected in the low efficiency of use of natural resources, rising pollution of water bodies (e.g., pollution of lake Baikal due to open in the early 60's Baikal pulp and paper mill), recognized and hidden from society for environmental accidents (the accident at the Chernobyl NPP on April 26, 1986) became the main reason for the formation and development of environmental law in the legal sector of the Soviet Union and then Russia.
At this stage of development, environmental law is an independent branch of law that regulates all environmental legal relations, but despite this, the problem of an unstable environmental situation still exists and is the most acute problem of modern Russia. Large-scale destruction of elements of flora and fauna, irrational distribution of natural resources continues to torment the biosphere of our country. In
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In our country, environmental protection was initially regulated at the level of customary law, but after the adoption of the "Russian truth", the most important objects of the natural environment were protected by the right of private (in that historical period, feudal) property. The formation of the society's perception of the close connection of natural processes led to the implementation of measures aimed at protecting natural objects, for example, the establishment of the first nature reserves in Russia: the Barguzin state nature reserve (1917), the Astrakhan state nature reserve (1919).
However, it should be noted that the formation of environmental law as an independent branch in Russia (the beginning of this process in Russia is usually attributed to the 70s of the XX century) began much later, unlike in Europe, where this process occurred in the first quarter of the last century. This fact was due to political and economic reasons: the predominance of the command economy, as well as the predominance of interests in the protection of
• ЮРИДИЧЕСКИЕ НАУКИ
these circumstances, the main goal of state policy1 should be to ensure environmental safety.
The main directions of state policy in the field of environmental protection are prescribed in the Federal law "On environmental protection".
"Principles of state policy in the field of environmental development of Russia until 2030" was adopted by Presidential Decree in 2012. "The State program of the Russian Federation environmental protection for 2012-2020" was approved by the Government of the Russian Federation in 2014.
The organizational and legal structure that exists in the field of environmental protection, at this stage, does not cope with all the tasks set for it, which is why all sorts of legal problems appear. In this regard, human rights related to the protection of environmental rights and a favorable environment are currently at a low level. One of the constitutional rights related to obtaining reliable information about the state of the environment and the environmental situation, and to compensation for damage to health and property of citizens caused by violation of legislation in the environmental sphere, is literally not implemented, and citizens are not always given the opportunity to protect their environmental rights.
The complexity associated with the scope of damages in connection with causing harm to human health caused by environmental degradation in economic and other activities of entities primarily associated with the establishment of the deterioration of health of the victim and determination of the monetary amount of compensation for recovery. The essence of this problem is that persons who file claims in court are also required to provide evidence of the harm caused to health, and to justify the causal relationship between this harm and the economic activities of the organization for environmental pollution.
Also, violations of human rights in the field of the environment occur in the field of compensation for environmental damage when committing environmental crimes, in particular, the actual restoration of natural resources is not carried out, when considering the problem of compensation for damage, various methods of calculating it are used, and it is also quite difficult to justify the amount of damage caused. The above problems later affect the outcome of court cases in the field of environmental protection, since the judicial system of the Russian Federation has not yet developed a unified practice of using generally recognized environmental and legal norms on this issue.
It is worth noting that the disordered nature of certain issues of protection and protection of the eco-sphere is a natural phenomenon in the Federal legis-
1 Yastrebov A. E. Main directions of improvement of environmental legislation of the Russian Federation // Central Russian Bulletin of social Sciences. 2013. No.1.
lation of Russia. First of all, this is manifested in the absence of basic terminology, which generates disputes in the practice of law enforcement. The problem of imperfect legal protection and irrational use of certain natural resources is not only in one content, but also in the lack of certain legal acts. An example of this kind of "gap" in Russian legislation is the absence of the Federal law "on soil protection". However, it should be taken into account that the majority of the Russian Federation's subjects cope with this problem through regional lawmaking. Thus, in Moscow, the requirements for protection were defined and the basic rules for the appropriate use of the city's soils were established (the law of Moscow "on urban soils").
Lecturer in constitutional and administrative law faculty of Saint-Petersburg military Institute of national guard troops of the Russian Federation Viktor Mikhailovich Sensin believes that a significant shortcoming of the modern Russian legal system in ecological legal field is the lack of the criminalization and penalization of the greater part of offences of an environmental nature2. With regard to the list of environmental crimes, it can be quickly determined that only 2 of them have all the chances to be called as traditional criminal compositions (article 256 of the criminal code of the Russian Federation art. 259 of The Criminal Code). The remaining offences (article 247 of the Criminal Code; article 249 of the Criminal Code; article 253 of the Criminal Code etc.), including the project name ("violation of the rules...") have a chance to cause association with the proper compositions of administrative offences noted in Chapter 8 of the Administrative Code of the Russian Federation, universally recognized norms of which stipulate the obligation for the breach of particular environmental rules.
Providing for the presence of serious consequences as part of the objective side of the offense, they are naturally considered material criminal legal elements, but the public consciousness is not recognized as such, which, in fact, is a serious problem that requires the necessary solution. In such a case, the authors would recommend that the rule on "causing serious harm to the natural environment as a result of economic activity" be legislated, which, in our opinion, would replace the articles listed above, the content of which (with the exception of mentioning serious consequences) can be included in the text of the articles of the Administrative Code.
Consolidation of environmental law norms enshrined in the Administrative Code, in our opinion, would affect not only the prevention of environmental offenses, but also the gradual development of a set of judicial practice on this topic (currently, criminal pros-
2 Shenshin V. M. Criminalization and penalization of environmental crimes as methods of implementing the criminal and environmental policy of Russia // Vestnik Saint-Petersburg University of MIA of Russia №3 (75)2017.
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ecution under the above articles does not occur), as well as the education of citizens in the field of environmental and legal relations, since awareness of the importance of bearing environmental and legal responsibility for the result of their economic activities harmful to the environment is much simpler and more obvious, unlike articles written in complex legal and technical language. That is why we advocate general criminalization and penalization of environmental crimes.
However, some legal scholars (A. P. Anisimov, E. A. Grin, and others) support the idea of creating and adopting a unified Environmental Code of the Russian Federation, i.e. codifying all available legal sources of modern Russian environmental law1. This Code should have spelled out legal liability for violations in the field of ecology.
We assume that this idea is currently not entirely realistic or reasonable. The exclusion of elements of environmental offenses from the Criminal Code of the Russian Federation may lead to the subsequent decriminalization of acts of the considered category of crimes and, in fact, reduce them to the level of an administrative offense. However, it should be mentioned that at present the idea of creating a codified normative act of environmental legal regulation has penetrated into regional law-making practice.
Thus, some subjects of the Russian Federation have already adopted their own environmental codes (the Environmental Code of the Republic of Tatarstan, the Environmental Code of St. Petersburg, etc.), but, unfortunately, regional codes are currently mostly declarative, copying the provisions of existing Federal laws, and do not take into account the specifics of the natural and climatic conditions of the region2.
We recommend that you refer to the experience of the developers of the "Model environmental code for the member States of the Commonwealth of Independent States (special part)". This act includes Chapter 26 "Legal support for the prevention and suppression of environmental offenses and environmental crime", which contains a detailed list of offenses in the environmental field ("environmental offense" in the Model code is used as a synonym). Article 124 lists "environmental offenses" that is somewhat similar to both the relevant sections of Chapter 8 of the Administrative Code of the Russian Federation and the criminal law sections of Chapter 26 of the Criminal Code of the Russian Federation.
As a result of our research, we can conclude that incomplete Federal legislation in the field of envi-
1 Grin, E. A., Nechaev A. A. A. a Text-the Necessity of adopting a single codified act in the field of environmental protection - Environmental code // international scientific journal "science Symbol" No. 1/2016.
2 Ol E. M. Tarasevich K. A. Specifics of state and legal regulation of environmental relations at the regional level (on the example of Saint Petersburg) / / Leningrad legal journal. - 2014. - №1 (35). - Pp. 116 -122.
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ronmental protection leads to further violation or infringement of the environmental rights of citizens of the Russian Federation. At the moment, the main task that public authorities face is to solve problems in the environmental sphere, namely, to develop new draft laws, as well as to exclude discrepancies between existing legal acts, systematize environmental legislation and establish a unified practice of law enforcement. In this regard, the implementation and protection of environmental human rights directly depends on the quality of the legal framework and its effective use.
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[1] Yastrebov A. E. Main directions of improvement of environmental legislation of the Russian Federation // Central Russian Bulletin of social Sciences. 2013. No. 1.
[2] Shenshin V. M. Criminalization and penalization of environmental crimes as methods of implementing the criminal and environmental policy of Russia // Vestnik Saint-Petersburg University of MIA of Russia №3 (75)2017.
[3. Grin, E. A., Nechaev A. A. A. a Text-the Necessity of adopting a single codified act in the field of environmental protection - Environmental code // international scientific journal "science Symbol" No. 1/2016.
[4] Ol E. M. Tarasevich K. A. Specifics of state and legal regulation of environmental relations at the regional level (on the example of Saint Petersburg) / / Leningrad legal journal. - 2014. - №1 (35). - Pp. 116 -122.
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