Environmental crime includes the following offenses:

Transcription

1 1. Introduction Environmental crime we define as a crime where the perpetrators object of attack is an environment as a whole, or any of its parts(water, animals,...) Environmental crime includes the following offenses: - Environmental hazards - Violations of protection of flora and fauna, including illegal trade of endangered species of flora and fauna - Illicit import, export and transport of waste and illegal disposal of waste - Illicit manufacture and possession of nuclear materials and high-risk chemicals - Illicit tree felling and illegal trade in timber - Violations of water - Poaching - Animal cruelty - The spread of contagious disease - Endangering the health by food and other racing needs Environment or any of its components, is subject at certain circumstances ideal object of a terrorist attack or a mean for terrorist attack. In view of these facts and the definition of environmental crime, it is clear that this is a very serious problem for society which is the risk in the following areas: - National-security (nuclear terrorism) - Economic (illegal trade) - Biological (biodiversity conservation) - Cultural and social (protection of cultural heritage)

2 2. The development of EU environmental policy. In 1957 the Treaty of Rome environmental issues were not a top priority to the public or experts. Even later, in 60 s, no country had a clearly defined policy guidelines. Before 1987 it was not legal competence EC guidelines. EC is formed from the economic reasons. However, the environmental law was created to eliminate barriers of free trade was established only in certain areas (such as radiation, emissions of cars, chemical packaging, labelling) and creative use of articles (pp. 2, 100 e 235). From 70 s public interest in the environment grew as well as narrow economic view of EU has been thought over. Activities of the EC in the environment started in 1972 with four successive action programs focused on vertical and sectoral approach to environmental problems. In July 1972, Paris Summit of the Presidents Commission and governments began to work on environment issues at the time of adoption of the first Environment Action Programme (EAP), which covered the years The principle of EU environment policy was that in relation to economic development and life quality improvement will give sufficient attention to the environment. In 1973 in the European Parliament Environment and Consumer Protection Committee DGIII (Commission on the Environment and Consumer Protection) and on the Committee Environment (Commission for the Environment) were established. First Environmental Action Programme was followed by the second in 1977 and the third in For this purpose, in 1985 the Court declared Environmental Protection Decision 240/35 for the "essential aim" of the EC. In the 1981 reorganization of the Commission transferred the responsibility of environmental DGIII (Industrial Policy) to DG XI (environment, Nuclear Safety and Civil Defence). Already in 1987 the "Single European Act entered into environment protection of the special Articles (130r- 130t). It is widely considered a turning point, as the legal basis for measures relating to the environment, the definition of objectives and guiding principles.

3 The contract represents a new idea of "Environmental protection requirements should be part of other Community policies". Also extending qualified majority for environmental proposals. Later the same year the fourth European Programme ( ) took place and year 1987 was designated as European Year of environment. In 1988 began a series of environmental funds. In 1993, the EU's Maastricht Treaty represents the next step in bringing progress to several areas. Added the concept of "sustainable and non-inflationary growth respecting the environment" to the Community's obligations and adopt the precautionary principle as a matter of European policy (Article 174, ex Article 130r of the EC Treaty). Environment has become the main EU policy objectives. Entry into force of the Amsterdam Treaty in 1997 maintained the principle of sustainability as one of the objectives of the EC Treaty (Article 2) and to incorporated protection of the environment at a high level as the absolute priority. It defined the need for the inclusion of environment into other policy definitions. This approach has been presented by the Commission in 1998 included in the Statement on the environment in EU policies in Vienna Europe Meeting (11th ). This commitment is taken into account in different areas of community, employment, energy, agriculture, development cooperation, single market, industry, fisheries, economics and transport. The contract also included a new article on sustainable development to the Treaty establishing the European Community. In 1993 began the fifth Environmental Action Programme, as the following 6th Environmental Action Programme focuses on sustainable development, not just the environment. 5th Environmental Action Programme "Towards Sustainability" based on principles of European strategy for the voluntary activities for the and marked the beginning of Community horizontal approach which takes into account the causes of pollution (industry, energy, tourism, transport, agriculture, etc.). 6th Environmental Action Programme ( ) gives a new sense of purpose, and direction to Policy guidelines. It clearly sets out priorities for the EC

4 in 2010 and defines the actions that need to be completed within 5-10 years. Four areas are highlighted: climate change, nature and biodiversity, environment and health and natural resources management and waste. Environmental Policy is based on the basic document of the European Union and the European Community - EC Treaty, Article 174. EU environmental policy now includes over 300 acts, including directives, decisions, regulations and recommendations. Community action will contribute to fulfilling the following objectives: 1. conserve, protect and improve environmental quality 2. careful and rational use of natural resources 3. enforce measures at international level for dealing with regional or global problems EU environment legislation covers: Products: controlling emissions from motor vehicles, control of hazardous chemicals in some consumer products, control noise from construction equipment, transfer of waste, control of hazardous chemicals and lubrication, etc.. Many of them are included in the White Paper. Activities or methods of mining: the impact on the environment or human health: industrial equipment, construction, waste management, nature, biodiversity and its conservation, etc.. Protection of the quality environment: control of hazardous substances in water, air, soil, natural resources and biodiversity and conservation Procedures and procedural law: an analysis of impact, the access to information and public consultation.

5 Guidelines are in the form of a large number of acts of EU guidelines. Otherwise, if they are not included in national legislation, they are used to control decisions of The competent authorities for the implementation of the environmental legislation. The regulation stresses that the Commission's existing in member states which are responsible for control and filling requirements at national level, playing in the EMAS important role. They are intended to inform the competent commission of the harmony respectively disharmony of organizations applying for registration with the acts in environmental field. The basic objectives and principles relating to environment. Objectives: 1. preserve, protect and improve the quality of the environment 2. careful and rational use of natural resources 3. promoting measures on international level Principles: 1. polluter pays 2. principle support 3. precautionary principle 4. principle of respect for lower levels of the organization 5. the principle of immediacy 6. principle of sustainable development

6 Member States Their main responsibilities are: - to establish an accreditation panel (within 12 months from the date of entry into the control force); - to inform the Commission of the adoption of measures in relation to the accreditation system and to inform about significant changes in relation to its structure and procedure; - are competent to establish a commission (within three months from the date of the regulation force); - take appropriate legal and administrative measures in case of non-compliance with the terms EMAS regulation and consult with the Commission of such measures; - to ensure the independence and neutrality of the competent committees; - to ensure the fulfillment of EMAS competent regulatory commissions; - to equip competent commission rules in case of refusal or suspension registration; - to take appropriate steps and to verify, that organizations are informed on elements of the regulation and the public is informed about the objectives and principles of operation of EMAS; - raise public awareness of EMAS in collaboration with industrial associations, consumer organizations, organizations in matter of environment, trade unions and local institutions, among others especially through professional publications, local magazines, campaigns and other appropriate methods; - to inform the Commission of measures taken to promote EMAS at national.

7 3. Italian environmental legislation. During the past few years, the Italian legislative approach to protection of the environment has changed. As regards to the Italian Constitution, ex art. 9 1, it showed out any kind of direct protection of the environment, but this one is considered only in an esthetical way and it is a legal good not directly protected, but functionally, as protecting final goods as life and physical integrity, subject of direct protection by Art. 32 Const. Since the 50s, the intensive industrial development has led to indiscriminate exploitation of natural resources, causing considerable environmental damage that arose from the need to update the outdated system of environmental protection. In years the debate has focused on the opportunity to create a new technique of environmental protection, focusing on three cases: Criminal cases; Administrative cases; Civil law cases (damages). Some European countries, including France, have adopted systems of pure environmental protection, built exclusively on criminal cases, in Italy, by contrast, was preferred a mixed system, in which criminal category is dependent on administrative decisions. As regards the hypothesis of a civil case instead, this has been brought to light by the l. 349 of 1986 which provides for damages for the restoration of the places at the expense of those who are found responsible for an act or crime. 1 Art. 9, co. 2: [La Repubblica] tutela il paesaggio e il patrimonio storico e artistico della nazione.

8 In subsequent years, bills came one after the other in environmental matters, including the most important, due to the Environment and Justice Mixed Commission of 1997, which basically focused on: The introduction, in the Criminal Code, of crimes against the environment, side by side with the fines, so far only to be provided as penalties; The prediction of criminal liability of legal persons. This project was never converted into law. However, it had two effects: the first is the introduction of the crime of illicit waste in an organized manner in the Italian penal code; the second one consists in the institution of an ad hoc committee that would prepare a further draft bill regarding the liability of legal persons, which was then carried out, partly as a result of European influences through the Legislative Decree no. 231/ This introduction of administrative liability of legal persons into Italian our legal system has not yet known forms of direct punitive liability of legal persons in respect of environmental crimes, although now more than three years companies incorporated the principle of the criminal responsibility 3. The Italian Parliament has inserted into the body of the Law (art. 11) a delegation to the government to regulate the administrative liability of legal persons (except the State and public bodies exercising public authority) and companies, associations or entities without legal personality having no function of constitutional relevance. In addition to other offenses specifically indicated, the decree should have provided delegate "the responsibility for the commission of the crime of environmental protection and land, which is punishable by imprisonment of not less than one year. 2 In the original version was intended only Articles 24 and 25 (Offences against the PA and against property), were added later in the Article 25 a (false values) 25 b (corporate crimes), 25 c ( crimes with terrorist purposes) and 25 d (Offences Against the Person). 3 Art. 11 of law 300/2000 and d. lg. 231/2001.

9 Institutions, provided legal personality or not, in fact, respond in relation to crimes committed in their interest or benefit from the top players (c.d. objective of the offence charged), unless they have adopted and effectively implemented, before the Board of offences, special models of organization, management and control designed to prevent the risk of commission of offences of the kind occurred (called subjective imputation of crime).this is referred to administrative responsibility for administrative offenses or administrative sanctions. However, it is widely accepted that this is true of criminal responsibility, not qualified as such to avoid an open confrontation with the principle of personality of criminal responsibility, ex art. 27 Const. Careful interpreter cannot escape the scam of labels: one is faced with a liability arising out of an act of crime, established by the criminal court in criminal proceedings 4, in which the institution has treated the accused 5. In this reconstruction, it should be considered substantial in particular the principle of autonomy of the responsibility of the institution 6. As regards to the writers opinion, the introduction of direct liability of the legal persons could be particularly useful in the field of environmental protection. The intervention of environmental legislation should be specially marked to the function of the promotion of criminal law that, far away from being merely ancillary to the proper punitive-pay, allows the consolidation and dissemination of the culture of respect for nature, as a place where human life and human activities should be respected. Actually, the adoption of preventive measures in relation to environmental crimes, according to d. lg. 231/2001, is, right now, although not yet directly stating the purpose of administrative liability of legal persons, potentially heralding favourable consequences for society. It must start from the observation that the commission of an unlawful environment by an employee or a person apex may result in the imposition of punitive measures against the broad sense of the institution, and this is strictly connected to the art. 197 of the Italian Criminal 4 Artt. 34 and 36 of d. lg. 231/ Art. 35 of d. lg. 231/ Art. 8 of d. lg. 231/2001.

10 Procedure code 7. It means, de facto, that, if the company has adopted and effectively implemented the compliance programs, will have the chance to show the court that the crime environment by an its apical manager is not related to the company. This can avoid being forced to pay an amount of money equivalent to a fine imposed on the individual, in the event of insolvency of the latter. Secondly, the adoption of models of prevention can be seen under Article 6 paragraph 3 of Law No 689 of 1981, which states that if the violation is committed by the representative or employee of a legal person or entity without legal personality, or at least an entrepreneur in the exercise of their functions or duties, such person or entity or contractor is jointly and severally liable with the infringer to pay a fine. In such cases the company has multiple liability to pay the administrative fine, but could leave as free from administrative sanctions procedure by demonstrating that it had adopted safeguards measures required by the best practices in this area. Among these measures, just following the entry into force of Legislative Decree 231, it cannot deviate from the models of organization, management and control under Article 6 and 7. Ex Article 6, called Liability of legal persons, Member States should take all necessary measures to ensure that legal persons can be held liable for the acts referred to in Articles 2 and 3 committed for their benefit by any person acting individually or as part of an organ of the legal person, who has a position within the legal person. The dominant position must be based on: a) a power of representation of the legal person; b) authority to take decisions on behalf of the legal person, or c) to exercise control within the legal person. The liability of legal persons does not preclude the prosecution of individuals who are perpetrators, instigators or the offenses listed above. Under Article 7, the penalties must be effective, proportionate and dissuasive, and may include financial 7 The bodies provided with legal personality, except the State, regions, provinces and municipalities, where it is pronounced sentence for the offense against those who are in the representation, or administration, or both dependent relationship with them, and whether the offense constitutes a violation of the obligations incumbent upon covered by the offender or has committed in the interests of legal persons are obliged to pay, in case of insolvency of the offender, an amount equal to the amount of the fine or fine imposed.

11 penalties or criminal fines and may include other sanctions, including: a) exclusion from entitlement to public benefits or aid; b) temporary or permanent disqualification from any trade or business; c) placing under judicial supervision; d) a judicial dissolution; e) the obligation to adopt specific measures to avoid the consequences of conduct such as that led to criminal liability. Member States shall take the necessary measures to establish its jurisdiction with regard to crimes under Articles 2 and 3, committed, inter alia, to the benefit of a legal person established in its territory (Article 8). Other international agreement, not yet ratified by Italy, the European Convention for the Protection of the environment through criminal law 8 provides for the introduction of criminal or administrative sanctions on legal persons or measures on whose behalf is a criminal offense among those mentioned in Articles 2 and 3, by their organs or by members thereof or by Another representative (Article 9). The liability of legal persons does not exclude the criminal responsibility of the individual. However, Decree 231/2001 does not include a pure environmental protection. It was the right moment for the birth of a new legislative Decree of the 3 April 2006, n. 152, called Environmental Regulations hereafter also Environmental Code. The art. 192 contains a general reference to the discipline of administrative liability of legal persons, companies and associations, introduced by Decree 231/2001. The art. 192, co. 4, of the Environmental Code states, in fact, that if according to the liability of tort law, for instance prohibition of abandonment and tipping of waste on the ground and placing of waste into water, administrators or legal representatives of legal person are found responsible, they shall be jointly and severally liable personally. The paragraph 3 above, subject to the penalties provided for in artt. 255 (administrative offense of abandonment of waste) and 256 (offense of unauthorized waste management) condemn anyone who violates the prohibition contained in the art. 192 to the accessory penalty of removal of the 8 Council of Europe, Strasbourg, 4 November 1998.

12 injurious effects of tort and restoring the state of the premises, jointly with the owners or holders of rights over the area, who are jointly responsible for the violation as a criminal intent or negligence. Following a preliminary analysis, the formulation of the rule in question is therefore ambiguous and raises questions of interpretation, because, in primis, does not specify the nature (administrative or criminal) of "tort", which is capable of rendering the joint and several liability referred to the art. 192, co. 4; in secundis, it is unclear whether the liability which is determined by the chief legal entity, the waste and restore the sites (obligation to "do" solution would seem preferable to a first reading) or the obligation of paying a fine (presumably an amount at least equal to the sums imposed under art. 255 or art. 256 of the Code); last but not least, providing for joint and several liability of legal persons for the unlawful actions attributable to its directors or representatives stands in marked contrast to the principle of the responsibility of the institution and the characteristics of the latter, as expressly governed by art. 8 of Decree n. 231/01 and reiterated in several recent judgments 9. In any case, the reference to the forecasts of legislative Decree n. 231/2001 is quite general and could be interpreted as a general, maybe irrelevant, recall to the extent of the entity responsible for the acts committed by individuals in top positions. It is not clear whether they can apply the forecast for the necessary existence of an interest or benefit to the institution, the exemption from liability rules on the adoption of organizational models, and all rules and procedures laid down in Decree 231. It cannot be assumed any link between the provision in question and the discipline of the delegated administrative responsibility of companies contained in the Law 300 of , which also included among its guiding principles and criteria, to extend this innovative form of responsibility (...) crimes and environmental protection area, which is punishable by imprisonment of not less than one year even if the alternative penalty, (...). 9 Inter alia, compare Cass., Sec. II Pen., Ruling N , 14 June Art. 11, co 1, lett. d)

13 As is known, however, the legislator has chosen not to implement this specific criteria of delegation, at least in the initial phase of application of Decree 231, referring later to review the decision of Parliament on the wish of extend the administrative responsibility of companies to crimes against the environment. In this regard, it is imperative to point out that in recent times is reflected in the parliamentary debate on the prediction of environmental crimes in the list of predicate offences related to the companies administrative liability. This proposal is, in fact, included in several bills posts examining rooms in order to implement both the original intentions of legislator delegated, following the pressing indications of Community. Moreover, the provision of Article. 192, co. 4, lacks systematic coherence compared to the whole system of environmental legislation, not to mention that in the Legislative Decree n. 152/2006 there aren t any other references to the administrative liability of entities under Decree 231, and also it s singular: there is any coincidence between the actors of the crime under art. 256, co. 2 ("business owners and managers of institutions") and those considered in art. 192, co. 4, ("directors or representatives); the fact that Article 192, co. 4, refers only to "legal persons" and not, in general, corporate bodies, including baked legal personality, unlike the decree expressly provides 231, thereby also highlighting the distance between the formal system of logic that govern the two regulations; The reference to legislative Decree n. 152/2006 if anything could have its own value, if it is meant quoad effectum, in the limited sense of responsibility to the independent state entity and against removal obligations, only in cases of author identified / identified the violation, according to the characteristic principle introduced by Legislative Decree n. 152/2006. That interpretation would appear to receive an additional endorsement if one considers that, in terms of general principles of our legal system and the light of the above proposal, the contrary argument to support that art. 192 intended to refer to the scheme outright, the

14 criteria for allocation of liability, penalties, procedure of investigation under Legislative Decree n. 231/2001, does not exceed the screening of determinacy and typicality of the cases relevant to the criminal syndicate. 4. Statistics on environmental crimes in Italy. Administrative and criminal violations due to infringement of environmental legislation Type or object of the illegal activity Logging Landscape Pasture Arson Others Flora Hunting and fauna Fishing Pollution Waste Others Waters Total

15 5. Environmental policy and its enforcement in Slovakia. According to the Constitution of the Slovak Republic (published in the Collection of Laws under No. 460/1992, as amended) : - everyone has the duty to protect and improve the environment and to foster cultural heritage. No one may imperil or damage the environment, natural resources and cultural heritage beyond the limits set by law. - the State economy is based on ecological basics - further, everyone shall have the right to full and timely information about the environmental situation and about the reasons and consequences thereof. The above mentioned constitutional rights and duties are rather of declarative significance and are interpreted as the cornerstone of environmental law in Slovakia. Environmental law is codified in a number of legal regulations such as enactments and their implementing decrees regulating particular components of the environment. The Act No. 17/1992 Coll. On Environment, as amended (the Environment Act ) sets forth the main principles of environmental law in Slovakia, such as the sustainable development principle, the principle of a tolerable rate of environmental pollution, the prevention principle, the precautionary principle, the polluter pays principle and integration principle. Save for environmental law, the development and direction of the Slovak environmental policy is set mainly in the following governmental strategic documents: (i) National Strategy of Sustainable Development of the Slovak Republic; and (ii) Strategy, Principles and Priorities of the State Environmental Policy. Pursuant to Act No. 525/2003 Coll. on State Administration of Environmental Protection, as amended, the main state administration authorities/bodies are: (i) the Ministry of Environment of the Slovak Republic (the Ministry of Environment ); (ii) regional and district environmental offices;

16 (iii) Slovak Environmental Inspectorate with its local inspectorates; and (iv) municipalities. The Ministry of Environment, as the central state administration authority for environmental protection and environmental law, is responsible, inter alia, for protection of nature and landscape, water management, protection of air and ozone layer, waste management, environmental impact assessment, integrated monitoring of pollution and GMO. However, other authorities may also be concerned with environmental laws in Slovakia in respect of specific environmental issues, e.g. nuclear energy (the Ministry of Economy and the Nuclear Regulatory Office). Enforcement of environmental law is governed by general rules for administrative proceedings, unless stipulated otherwise. The Ministry of Environment and the Slovak Environmental Inspectorate have countrywide competences whereas regional and district environmental offices, local environmental inspectorates and municipalities have territorial environmental law enforcement competences. In general, environmental law enforcement authorities use sanctions aimed to punish unlawful states, avoid its recurrence and act as a deterrent to others by ensuring compliance with environmental standards stipulated by the environmental law. Basic legal instruments in this case include fixed and variable monetary fines, restoration notices, compliance notices and stop notices imposed on person who is in breach of the environmental law in force. Please note that environmental law in Slovakia is codified as mainly reflecting particular components of the environment (e.g. Waters Act or Air Protection Act). Relevant environmental law enforcement authorities impose sanctions under relevant laws regulating particular components of the environment.

17 6. Public authorities. The Constitution of the Slovak Republic stipulates that everyone shall have the right to full and timely information about the environmental situation and about the reasons and consequences thereof. Environment-related information may be provided under (i) Act No. 211/2000 Coll. on Free Access to Information, as amended (the Act on Freedom of Information ), and (ii) Act No. 205/2004 Coll. on Collection, Storage and Dissemination of Environmental Information, as amended (the Environmental Information Act ). In comparison, the Act on Freedom of Information is more frequently used by the common public than the Environmental Information Act because environment-related information is not excluded from the ambit of free access regime under the Act on Freedom of Information. The Act on Freedom of Information stipulates the principle that every person shall have the right of access to information available to responsible persons. Responsible persons are defined very broadly, inter alia, state authorities, municipalities, higher regional self-governing units, as well as legal entities and natural persons who decide on the rights and obligations of natural persons and legal entities in the area of public administration. The Environmental Information Act transposes the Directive 2003/4/EC on public access to environmental information and it regulates conditions and procedure for the collection, storage and dissemination of environmental information by public administration authorities and other legal entities and natural persons/entrepreneurs having the competence of public administration authority. Responsible persons under the Environmental Information Act are obliged to disseminate information on the environment available to them. In comparison with the Act on Freedom of Information, the ambit of definition of information pursuant to the Environmental Information Act is narrower.

18 7. Liabilities. Practically, breach of environmental laws and/or permits can give rise to the following types of liability: (1) criminal; (2) administrative; and (3) civil. Criminal liability: pursuant to Section 17 of the Criminal Code, natural person may be held criminally liable if he/she has breached the provisions of Criminal Code intentionally, unless only negligence is required. The Criminal Code recognizes eight specific subject matters of crimes against environment and damaging the environment, unauthorized handling of waste or poaching. Administrative liability: Act No. 372/1990 Coll. On offences, as amended, stipulates a fine of up to EUR 99 to the offender who has committed a minor offence in the field of protection of environment and who has harmed the environment. Please note that only natural persons may be held liable for offences under this Act. If a legal entity has breached this Act, a fine will be imposed on a natural person who acted or should have acted on behalf of such legal entity. Special laws on environmental protection stipulate other administrative sanctions for both natural persons and legal entities. For example, under the Waste Act, a fine may be imposed on a legal entity or natural person/entrepreneur in the amount of EUR 165, in case of the illegal cross border shipment of waste. Civil liability: Generally, a legal entity or natural person shall be liable for damages caused by breaching a legal duty, including a contractual obligation. The Civil Code stipulates also stricter liability for damages caused by legal entities and natural persons in the course of performance of their business activity (operational activity). Damages caused during the performance of a business activity exist if such damages have been caused by: (a) an activity of an operational nature, or by a thing used in the operation of business; (b) the physical, chemical or biological impact of such business operation on the surroundings; and (c) a legitimate performance or contracting of works that has inflicted damage upon the real estate

19 of a third person or which substantially impedes usage or makes impossible the use of such real estate. A defendant s liability may be excluded if the defendant can prove that the damages caused during the performance of a business activity were caused by force majeure not having its origin in the business operation or by the actions of the claimant. An operator may be held liable under the Civil Code for environmental damage notwithstanding that the polluting activity is operated within permit limits. As mentioned in our answer to question 4.1, a legal entity or natural person will be liable for the damage caused to another by its business activity (operational activity) due to its physical, chemical or biological impact on the environment. That kind of civil liability is based on a principle of objective liability, i.e. only the fact that the damage was inflicted by such operation is decisive irrespective of whether the polluting activity is operated within permit limits. In case of objective liability for damage caused by business activity/operational activity, it does not matter whether the damage has been caused intentionally or by negligence or even without negligence. Such legal entity or natural person may be excluded from this type of civil liability only if such damage has been caused by force majeure or by the claimant itself. Such operators will be liable also for actions of their employees notwithstanding that the polluting activity is carried out by the operator s employees within the permit limits. On the other hand, criminal and/or administrative liability may not be applied provided such polluting activity is carried out within the permit limits. Generally, Slovak environmental laws do not explicitly stipulate liability of directors and officers of concerned corporations for environmental wrongdoing. On the other hand, pursuant to Section 19 of the Criminal Code, only a natural person may be held criminally liable. Therefore, directors and head officers of corporations may be held criminally liable if the specific subject matter of a crime against environment can be subsumed with the intention to act or omission to act (if so stipulated by the Criminal Code) by such director or head officer of corporations. However, corporations (as legal entities) may be held administratively liable; civil liability may also be imposed on corporations for breaching environmental laws. In some cases, a corporation may hold its director or its officer liable towards the corporation for the inflicted damage to the

20 corporation. Insurance (e.g. directors and officers liability insurance, environmental damage liability insurance, etc.) cannot indemnify directors for criminal sanctions imposed on them but it may indemnify them for potential civil liability. However, particular insurance terms and conditions in general exclude settlement of damage caused by the intentional acts of the insured person. The purchaser of share(s) in a company will acquire such company with all the environmental liabilities related to it, unless stipulated otherwise in the share transfer purchase agreement. The Commercial Code stipulates that the seller shall notify the purchaser in case of the sale of an enterprise or part thereof of any defects, rights or other proprietary values of which the seller is aware and/or must be aware. Otherwise, the seller will be liable for any defects that should have been included in such notification. Such notification has to be in a form of minutes signed by both contractual parties. However, an enterprise, its parts or individual assets, are not sold/transferred, for example, with already imposed administrative fines, which will stay with the company to which a fine has been imposed; i.e. that in general public obligations (incl. imposed fines and sanctions, tax duties etc.) are not transferred to the purchaser. If the subject of an asset purchase transaction is real estate, provisions of the Civil Code on a purchase contract are applied. Therefore if the seller is aware that real estate (i.e. the subject of sale) has defect(s) and the purchaser will not be informed about such defect(s) and such fact would be crucial for entering into such purchase contract, such purchase contract will be under Section 49a of the Civil Code considered relatively invalid. This means that such purchase contract is not considered as null and void automatically; in order for such purchase contract to be considered as null and void, the purchaser has to file an action with the court claiming its invalidity within a statutory period. Provided that the seller did not know and could not know about the defect(s) of such real estate, the purchase contract will be valid while the purchaser would have a right to adequate reduction of the purchase price. Further, the purchaser is entitled to withdraw from the purchase contract if such real estate is not usable for the purpose for which it has been bought or if the seller breaches representations and warranties stipulated in the purchase contract (provided that the seller was properly aware regarding the purchaser s needs and

21 intentions with the real estate concerned). In general practice, the abovementioned distinctions between share and asset purchase are minimized by representations and warranties stipulated in respective contracts. Generally, lenders will not be liable for environmental wrongdoing provided that lenders are not in possession of the property and they are not in control of such environmental wrongdoing. 8. Environmental criminality in Slovak Republic. Definition environmental criminality is created from the term environment, our life surroundings, which is all, what creates natural conditions of organisms existence, including human and it is prerequisite of their further development. Under environmental criminality we can understand that criminal activity, where object of harm attack is environment or its other part (water, soil, air, animals, plants, including trees). In broader sense, under term environmental criminality in more European Union states, including Slovak republic, used to be included also problematic of health treats with bad foods and illegal production and possession of radioactive and nuclear and other dangerous substances. Problematic of environmental criminality is quite broad and to each of its sectors including detached law papers. To this laws the act subject matters of criminal actions against environment are withdrawed, which are content of separated head of Criminal law with title Criminal actions general dangerous against environment. The second sector of this head in unique act subject matters of criminal actions, we can define this versus law actions like: Criminal Code defines these acts: - threatening and damaging of environment (paragraph 300, 301) - illegal waste treatment (paragraph 302) - violation of water and air protection (paragraph 303, 304) - violation of animal and plants protection, including business with endangered species and illegal forest tree felling (paragraph 305)

22 - violation of forest trees and bushes protection (paragraph 306) - spreading of infectious illnesses of animals and plants (paragraph 307, 308) - GMO leakage (paragraph 309) - poach (paragraph 310) Do environmental criminality is often concurrence with another criminal activity, for example: shortening of the tax, deception, corruption, leading of power public factor. The extend of environmental criminality is also limited with Decree of Minister of inner foreign affairs of Slovak republic about process of prevention, limitation, uncovering and documentation of environmental criminal activity, of detecting of wrongdoers, of investigation and short investigation, when the environmental criminal activity is considering criminal act of illegal production and retention of nuclear materials, radioactive substances, high-risk chemical compounds and highrisk biological compounds and toxins, damaging of health with contaminated food and other needs, animals tyranny and wood robbers from soil funds, including wood cut before. Generally, enforcement powers of regulators may be divided into the following areas, depending on the particular type of liability: (i) criminal; (ii) administrative; and (iii) civil liability. Act No. 300/2005 Coll. Criminal Code, as amended (the Criminal Code ) recognizes eight subject matters of crimes against environment (please see our answer to question 4.1). No legal entity may be held criminally liable under the Criminal Code but this does not apply to its statutory representatives and other head executives. Natural persons may be sanctioned under the Criminal Code, inter alia, by a fine, imprisonment or other punishment under the Criminal Code. As regards administrative liability, environmental regulators impose administrative sanctions with respect to the extent of damage caused, intention or negligence of the wrongdoer and seriousness of the breach of law and/or duty or other violation of the environmental permit. Such sanctions may include a fine, withdrawal of the respective permit or a ban on the performance of a particular activity. Theoretically,

23 civil liability may also arise from a failure to hold an environmental permit or to comply with conditions resulting from it. Both civil liability and criminal liability will be decided upon by independent courts in a civil proceeding or criminal proceeding and enforced through bailiffs or police authorities. 9. Criminal acts investigations. Prosecutor, inquiry or police office have to take over announcement about criminal activities and treat them as soon as possible. It is obligatory to inform announcer about penal responsibility if he give to investigator knowingly untrue information. Prosecutor can hand over gained announcements to inquiry or police office. To verify if given announcement prosecutor, inquiry or police office collect appropriate information. There is oblige to make a record about this investigation, but this record is not able to be used during court as a prove. That is only information for prosecutor to begin or do not begin a court. Prosecutor, inquiry or police office can in case of need challenge every important person to give explanation of every part of announcement. If there is no reason to start a court so prosecutor, inquiry or police office officially refuses announcement if crime was not committed. If the crime was committed investigator have to issue a resolution and deliver it to the prosecutor by 48 hours.- only when a prosecutor is not a investigator. 10. Structure of courts in Slovak Republic. Courts create sentences in civil and in penal affairs and determine if administrative power decisions are legal or illegal. Sentences are created in senates. One judge can create a sentence only in special cases. We distinguish in Slovak republic general courts, one Special criminal court and Constitutional court. General courts are independent and neutral. Jurisdiction is organized in two levels. District Courts are first level and County Court creates a sentence as a

24 appellation court. Supreme Court create sentences as a appellation court and never act in first level. Courts structure Constitutional Court General courts Supreme Court - County Courts - District Courts Special criminal court Military courts Constitutional Court of Slovak republic Is independent court for Constitution of protection. Its position in Slovak courts structure and Constitutional Court judges is written in Constitution of Slovak republic.

25 11. Environmental legislation in Hungary Environmental law has traditionally been regarded in Hungary as a specific part of administrative law. Nevertheless it is considered to be a wider field connected to numerous field of science. Environmental law includes legislation on economic incentives to support the sustainable transformation. Rules relating to civil law liability such as provision for minor offences also have significant effect on activities related to environment. Finally, having considered that the clean environment is a common interest these areas also need to be protected by criminal law means. Act No. LIII. of 1995 on the general rules of protecting the environment and its commentary legal scholarship acknowledge that environment protection covers a wide spectrum, including the following topics: use of nuclear energy mining, energy production forest management artificial environment, fishery, transportation, prevention of catastrophes and the elimination of consequences of catastrophes, regional development, management relating to wild animals, water management, waste management, dangerous materials, nature protection, veterinary matters, use of pesticides and the protection of monuments. So Environmental Law can be regulated all level of Hungarian legislation system. On the Constitutional level the Hungarian fundamental rights ensure the right to a healthy environment as the following. Everyone living on the territory of the Republic of Hungary has the right to the highest possible level of physical and mental health. The Republic of Hungary shall implement this right through the organisation as safety at work, health care institutions, medical care, through securing the opportunities for regular physical activity, as well as through the protection of the built and natural environment. This article underlines the importance of state activity in accordance with the government constitutional obligation is to establish the necessary institution to protect the environment and create a proper legal background under which the activity of users of the Environment can be limited to a acceptable level. Another important feature of this Article is that this right is not limited to Hungarian citizens which mean in the territory of the Republic of Hungary everybody has the right to the healthy environment regardless their citizenship. The wording nevertheless is general, so

26 it can be understood in different ways. 11 The most general notion is that it includes both mental health and physical health at the same time. Furthermore, this constitutional background poses a solid basis of the Criminal regulation consistent with the recommendation of the related EU directives. With regards to the relationship between environmental law and environmental criminal law, as any other fields of life, criminal law is the final means of protecting the interests of the environment. Therefore, criminal law can only deter subjects from committing highly serious acts and thereby serve the purposes of prevention. Although it is connected to administrative law, the application of environmental criminal law, is not dependent on the activity of public administration. This means that not only the breaches of administrative law provisions or acts constitute crime. Relevant provisions of the Criminal Code also penalise conducts, where no such breach occurred but the perpetrator committed certain damaging acts. Hungarian Criminal code represents a conservative approach placing these crimes among the crimes against public health. There are three different crimes protecting environment: Damaging the Environment 12 Damaging the nature 13 Violation of Waste Management Regulations IP course lectures 2010 Italy presented by Dr. Szabolcs Hornyák PhD. 12 (1) Any person responsible for any pollution of the earth, the air, the water, the biota (flora and fauna) and their constituents, resulting: a) in their endangerment; b) in damage to such an extent that its natural or previous state can only be restored by intervention; c) in damage to such an extent that its natural or previous state cannot be restored at all; is guilty of a felony punishable by imprisonment for up to three years in the case of Paragraph a), for up to five years in the case of Paragraph b), and between two to eight years in the case of Paragraph c). (2) Any person who imports or exports any substance that damages the ozone layer, or any product that contains such substances in a quantity in excess of what is required for personal use, or distributes such substances, is guilty of a felony punishable by imprisonment for up to three years. (3) The person who damages the environment through negligence shall be punishable for misdemeanor in the cases of Paragraph a) of Subsection (1) and of Subsection (2) by imprisonment for up to one year, community service work, or a fine; in the case of Paragraph b) of Subsection (1) by imprisonment for up to two years, community service work, or a fine; and in the case of Paragraph c) of Subsection (1) by imprisonment for up to three years. (4) In connection with Paragraph a) of Subsection (1) and with the first and second phases of Subsection (3) the perpetrator shall not be punishable, and in the case of Paragraph b) of Subsection (1) his punishment may be reduced without limitation if he voluntarily terminates or cleans up the environmental damage before the judgment in the first instance is delivered. (5) For the purposes of this Section pollution shall mean loading of the earth, the air, the water, the biota (flora and fauna) and their constituents to an extent exceeding the emission standard laid down by law or by decree of the competent authority 13 (1) Any person who unlawfully obtains, possesses, distributes, imports, exports, transports through the territory of the country, engages in the trafficking of or damages or destroys: a) any species of a living organism under special protection; b) any species of protected living organisms,