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Legal Framework

Legal Framework. Member States or candidate Member States did correct transpose Directive 2008/99/EC on environmental crimes and Directive 2009/123/EC on ship source pollution?

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Legal Framework

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  1. Legal Framework Member States or candidate Member States did correct transpose Directive 2008/99/EC on environmental crimes and Directive 2009/123/EC on ship source pollution? Almost Mediterranean Sea States (maybe except Italy) and Black Sea States provide criminal offences according to the Directives mentioned above (especially conducts of pollution which cause or likely cause substantial damage to the environment or death or serious injury to any person).

  2. Some differences lay • A) in the type and quantity of criminal sanction adopted. • We need to approximate criminal sanctions of different States (see Framework Decision 2005/667 Gai, adequatecustodialsanctions up to 3 years or up to tenyears for more significantdamagescommitted with intent); it makes not sense having similar rules but very different sanctions. • This power of harmonisation of sanctions, according to the ECJ (23.9.2007, Grand Chamber, C-440/05), belongs to the Council through Framework Decisions, and not to Commission and European Parliament through Directives. • So it is not sufficient to provide effective, proportional, and dissuasive criminal sanctions; we need to set a more stringent framework of minimum and maximum of sanctions.

  3. Otherdifferenceslay • B) in some “minor cases” clauses (negligible quantity of waste, negligible quantity of specimens etc.), or in transposition of vague concepts like “significant deterioration of habitat”. • These differences seem to be acceptable in light of national margin of appreciation.

  4. Follow • C) In mensrea: according to Directives conducts should be punished when committed with intent or at least serious negligence. • Some States punish also conduct committed with not serious negligence. • The Directives represent a minimum standard, so that they tolerate more stringent national standards.

  5. Enforcement of environmental laws • We need more efficient enforcement; we have many and big cases of pollution, but a few criminal proceedings against polluters, especially in some candidate Member States.

  6. We need more efficient enforcement; we have many and big cases of pollution, but a few criminal proceedings against polluters, especially in some candidate Member States • The failure of enforcement depends on many factors: • objective, “natural” causes: • the collecting of evidence in environmental crimes is very hard (think to a case of maritime pollution in high Sea): environmental crimes may involve conducts hard to be detected and may cause harms over different States; • we have problems of multiplecausality (certainphaenomena are notcaused by a single factor) and we often don’t know exactly how was the status of environment (the quality of water, the integrity of soil etc) before the conduct of pollution.

  7. What do wheneed a) more cooperation between police offices and judges (specific training programs at regional and European level, European procedural rules and operational dispositions to be transposed in Member States);

  8. Furtherneeds b) We should enhance information systems (contact points in case of emergency, police and prosecutors networks) and common data bases between national law enforcement Agencies and Institutions.

  9. More technology and technicalsupport • C) more technology under technical support and supervising of European Agencies like EMSA (satellite images, alert systems, more efficientdetectiontechniquesincludingenhancing of CleanSeaNet): we have to be very fast in collecting the evidence and to follow the “traces” of environmental crimes. See proposals coming from EMSA experts: • Guidelines and Procedures – Establishment of an informalworkinggroup; Training – Near future: CTG Surveillance training; Regular meetings; Feedback mechanism on enforcementactions.

  10. Subjective, “human” causes: • in some States corruption and lack of environmental experts or trained public officers avoid to achieve good results in enforcement of environmental criminal law.

  11. What do weneed • We need measures against corruption or public control omissions in environmental sector(see for instance art. 329 Spanish criminal Code, or art…of BCC which punish the public officer who omits control or gives unlawful permit (green omission or corruption offences).

  12. we need specific training programs for scientific experts and public officers supporting police officers and judges in detecting environmental crimes; • to avoid massive violation of environmental criminal law we need educational programs at every level (schools, mass media etc).

  13. 3) Evidence of environmental crimes • If we adopt a damage or concrete danger crime model (pollution causing harm or concrete danger to quality of air, water or oil, or causing death or serious injury to any person), we need to prove the link between conduct and the subsequent event; to do that we need scientific knowledge and sophisticated technology.

  14. The burden and nature of proof in environmentalcriminacases • We can’t obviously change the burden of proof, still at charge of public prosecutor; what that changes is the nature of the proof; it becomes a scientific proof given by scientific experts. • We need more dialogue between scientist, public officers and judges

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