HUMAN S RIGHT TO A HEALTHY ENVIRONMENT A NEW RIGHT WITHIN THE FUNDAMENTAL RIGHTS STATED BY THE ROMANIAN CONSTITUTION

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1 Jus et civitas Vol. I (LXV) No. 2/ A Journal of Social and Legal Studies HUMAN S RIGHT TO A HEALTHY ENVIRONMENT A NEW RIGHT WITHIN THE FUNDAMENTAL RIGHTS STATED BY THE ROMANIAN CONSTITUTION Roxana Matefi Transylvania University of Brasov, Law school roxana.matefi@gmail.com Abstract The present article deals with one of the most actual contemporary issues, namely the protection of human fundamental right to a healthy environment, since the degradation of the surrounding environment is one of the greatest threats of mankind nowadays. I focused mostly on the legal liability in this field of environmental law, from the criminal, contravention and civil perspective, as the legal liability has become, under the impact of the technical and scientific revolution, an extremely stringent matter. This is a consequence of the worldwide ecological situation which is severely affected by the consequences of industrialization and automation, excessive pollution, unreasonable exploitation of natural resources, forests, as well as other factors. Keywords: right, environment, degradation, legal liability. Introduction The right to a healthy and ecologically balanced environment, constitutionally consecrated within article 35 of the Fundamental law, represents one of the human s essential rights, an essential guarantee of a healthy existence. The state is the responsible in ensuring the legal frame for exercising this right, but its accomplishment depends on how the individuals and the judicial persons respects their obligations regarding the protection and improvement of environment surrounding. There are more and more regulations within this domain, both intern and extern, being necessary a solid legislative frame, without breaches, in order to guarantee this right. General aspects regarding the right to a healthy environment Regulating human s right to a healthy environment in the Romanian Constitution 1, by its 2003 revise, was seen as an instrument to accomplish the objective of protecting the environment. Nowadays, at the beginning of the third millennium, the world lives in the age of globalization with all its consequences and society is confronted with a multitude of phenomena and essential mutations on all levels: economical, social, political. Economical globalization is, without a doubt, one of the most actual and controversial 1 Law no 429/2003 for revising the Romanian Constitution, published in the Romanian Official Gazette part I no 767 of October 31 st, 2003

2 76 Roxana Matefi phenomena of contemporary society, by taking into account all the benefits that it entails, but also the serious negative manifestations of this phenomena; one of the areas where the impact is not very strong is the environment. Protecting human s fundamental right to a healthy environment is one of the most actual contemporary issues. The degradation of the surrounding environment is one of the greatest problems of mankind nowadays. The environment is affected by the consequences of underdevelopment as well as those of overdevelopment. Worldwide, several measures are taken in order to protect the environment, as we must all be aware of the importance of protecting the environment. The scientific and technological progress and the increase of anthropogenic pressure on the environment leads to the aggravation of the ecological situation: all natural resources are exhausted, the environment is polluted, the natural connection between man and nature is lost, human s moral and physical health worsens and the economical and political fight for prime material market and for living space escalates 1. Almost without realizing, people have set in motion extensive ecological experiments which involve the entire Earth, without having the necessary means to follow the results in a consistent way. 2 We must be aware of the fact that the time of limitless use of the natural resources is over. As we are confronted with an ecological crisis, we fell that the right to a healthy environment comes first, as opposed to all other fundamental rights 3. In the context of the ecological crisis it was appreciated that there are not sufficient recommended norms to ensure environment protection. The legal norms established by Criminal Law must serve the protection of the fundamental human right to a healthy environment. Thus the environment shall be protected against the damages made by human. Under the impulse of the many messages sent by environmental factors through the different negative phenomena manifested in the contemporary times, it became necessary to accept the need to protect the environment for itself, against human, but also in its interest 4. Legal liability in environmental law The notion of legal liability, as seen in all branches of law, suggests the idea of sanction. In environmental law, legal liability has become, under the impact of the technical and scientific revolution, an extremely stringent matter, thanks to the worldwide ecological situation which is severely affected by the consequences of industrialization and automation, excessive pollution, unreasonable exploitation of natural resources, forests, as well as other factors. The legal liability for ecological crimes and offenses is one of the ways by which we can ensure human s fundamental right to a healthy environment, ecological security of population, protecting the natural environment and the reasonable use of its resources. 1 M.M.Neagu, Protecting man s fundamental right to a healthy environment by means of criminal law, Doctoral thesis, Scientific coordinator: Prof.univ.dr. Vasile Dobrinoiu, Bucharest, Lester Brown, Inst. World watch, USA., Global issues of mankind, Technical Publishing House, Bucharest, M.Dutu, Environmental law, Treaty, vol.i, an integrated approach, Economical Publishing House, Bucharest, M.M.Barsan, The markings of the coherent starategy to protect man s fundamental right to a healthy environment, Bulletin of the Transilvania University of Brasov, Vol. 1(50) 2008,

3 Human s Right to a Healthy Environment a New Right Within the Fundamental Rights Stated by the Romania Constitution 77 Criminal liability in environmental law Disrespecting the laws of environmental protection means applying sanctions of disciplinary and administrative character, as well as criminal sanctions in the most serious situations. For a better collaboration between all institutions which have responsibilities in protecting the environment, knowing the current laws can lead to preventing certain events which cause damage to the environment, by removing and restricting the causes of pollution and sanctioning the people and companies which are guilty of such acts. 1 In this specific situation, the role of criminal liability as means of protecting human s fundamental right to a healthy environment becomes more significant. Although criminal law can t be seen as the most important mean to protect the natural environment, the prevention function of the legal and criminal interdiction of the most severe damages of the environment and the punishments applied for such antisocial deeds, which violate environmental protection laws, have an important role in fighting ecological crimes. Given all these, in the context of the profound ecological crisis manifested worldwide, it is believed that there is an insufficiency and ineffectiveness of environmental protection regulations and other forms of legal liability. Under these conditions, criminal liability, the most severe form of legal liability, is called to contribute to the respect of regulations in the area of environmental protection. In order to effectively contribute to the protection of the environment, criminal law must not only adapt and create proportional punishments in regard to ecological damages, but it must also repress pollution, an action which must not be mistaken for the repression of contraventions, in which case the sanction regards a mere violation of an administrative regulation. I think it is useful (as is the case of other laws) to create an autonomous branch of law - environmental criminal law, with own institutions, principles and object. In our country, environmental protection is a national issue, as it is an obligation of the authorities, the central and local public administration, as well as of all people and legal entities. The need to exploit, but also to protect the components of the environment (the geographical environment, physiological factors, biological and demographic factors) has determined the passing of a complex ensemble of specific legal regulations for each state. In Romania, the legal regulation of liability is stated in Government s Emergency Ordinance no 195/2005 regarding environmental protection 2. It is a known fact that, in the area of protecting the environment and preserving nature, the most important part is played by the civil or administrative prevention means, as criminal means play a secondary part. 1 Ciripan Raul Romiţan, Victor Voicu, Eliodor Tanislav Jr, Mirela Romiţan, The legal protection of the environmental, Semne Publishing House, Bucharest, Government s Emergency Ordinance no 195/2005 regarding environmental protection, Romanian Official Gazette no 1196 of December 30 th, 2005

4 78 Roxana Matefi Contravention and civil liability in environmental law Contravention liability is a form of administrative liability, as the offense is a form of manifestation of the administrative illegal acts, the most serious form there is, as the legal regime is generally an administrative one 1. Contravention liability plays an important role in the system of regulations regarding the legal liability as it has an economical part and it represents a serious means to prevent environmental damages. The people and legal entities which exercise activities contrary to the rules stated in environmental protection regulations or fail to fulfill their legal obligations which arise from the legal environmental reports are liable, to the extent of the pollution they caused, with the consequences and social danger of the specific deed 2. The contravention liability of legal entities is explained by the fact that they have a series of specific obligations in order to ensure the normal development of social relations regarding the environment 3. The contravention fine is applied by the empowered institutions in name of the administrative organs, without researching the guilt of the polluting agent. Pollution liability has an objective character, as it can be engaged every time the environment was polluted; the degree of pollution, the negative consequences caused to the environment, the social danger of the deed are all considered when establishing the fine. Government s Emergency Ordinance no 195/2005 regulates a series of offenses which are sanctioned by a fine in the amount established by law. Thus, article 96 - alignment 1 states a fine starting from lei (RON) to lei (RON), for people and starting from lei (RON) to lei (RON), for legal entities; - alignment 2 states a fine from lei (RON) to lei (RON), for people and a fine starting from lei (RON) to lei (RON), for legal entities; - alignment 3 regulates a fine from lei (RON) to lei (RON), for people and a fine from lei (RON) to lei (RON), for legal entities. We must also notice that the limits of fine as established by the lawmaker are somewhat reduced, considering the fact the culprits are multinational companies with significant incomes. According to the Government s Ordinance no 2/2001 it is not an offense: - the deed committed in self defense, because of a happening which can t be foreseen or removed, - the deed committed by constraint, by factual error or state of necessity, - the deed committed by a person as a result of the mental state or a physical disability. The provisions of article 96 regarding offenses are completed by the provisions of the Government s Ordinance no 2/2001 regarding the legal regime of offenses, 1 Al.Ticlea, The regulation of offenses, Lumina Lex Publishing House, Fourth edition, Bucharest, M.M.Neagu, Legal liability in environmental law, article published in Annales Universitatis Apulensis, Series Jurisprudentia, 10/2007, University of Alba Iulia 1 Decembrie 1918, 2007

5 Human s Right to a Healthy Environment a New Right Within the Fundamental Rights Stated by the Romania Constitution 79 approved with changes and additions by Law no 180/2002, with subsequent changes and additions. According to the current legal provisions stated in the Ordinance no 2/2001 passed by Law no 180/2002 regarding the legal regime of offenses, article 1 states that the offenses law protects the social values which are not protected by criminal law. The same article mentions that the offense must be committed with guilt; it must be illegal and sanctioned by law, government s ordinance or decision of the local council, a county council or of Bucharest s city council. For the pledge of the civil responsability in the environmental law there are necessary several conditions to be fulfilled: a) to be committed a fact with an illicit character (a polution fact); b) to exist a prejudice called in thia matter ecological damage ; c) the pollution fact to be generated by the author culpability (ecological culpability); d) the existance of the author s affence capacity in the moment of committing the fact 1. The civil law cannot serve the interests of recuperating the prejudicies regarding the environment since the civil law protects private interests, while the ecological prejudice affects the public interest 2. Conclusion The present work presented a foray in the field of environmental law, emphasising the most important issues conncted to contravention, civil and criminal responsibility. As regards the environmental law importance, in the international juridical literature in this field, the judicial responsibility is considered to be another way of realizing the environment protection and development, mostly in hardeing the judicial sanctions applicable in this field. By sanctioning the deed commited against the environment, besides the natural purpose, the intention are to educate the sanctioned one and the other citizens in order to create that ecological consciousness for preventing the pollution and improving the environmental conditions. Bibliography: 1. Al.Ticlea, The regulation of offenses, Lumina Lex Publishing House, Fourth edition, Bucharest, C. R. Romiţan, V. Voicu, E. Tanislav Jr, M. Romiţan, The Legal protection of the environment, Semne Publishing House, Bucharest, C.Statescu, C.Barsan, Civil Law, Theory of obligations, All Beck Publishing House, Bucharest, C.Voicu, A.Boroi, Business criminal law, third edition, CH Beck Publishing House, Bucharest, C.Mantea, Protecting the environment by means or criminal law. Doctoral thesis. Scientifical coordinator: Prof.univ.dr. Vasile Dobrinoiu, Bucharest, M.M.Neagu, O.Saramet, C.Matei, L.Muresan, Juridical Protection of the Fundamental Human Right to a Healthy Environment, The scientifical Works of the International Multidisciplinary Symposium, Ropet University, 2004, Petrosani 2 E.Lupan, The legal notion of ecological prejudice, in the Law no.3/2003

6 80 Roxana Matefi 6. D.Guihal, Droit reprresif de lenvironment, Economica Publishing House,, Paris, D.Marinescu, Environmental law, third revised and completed edition, Sansa Publishing House,, Bucharest, Daniela Marinescu, Environmental law treaty, second revised and completed edition, Universul Juridic Publishing House, Bucharest, E.Lupan, The legal notion of ecological prejudice in The Law no 3/ E.Lupan, The pollution s victim right to a severance payment in The Law no 9/ I.M.Anghel. Fr.Deak, M.F.Popa, Civil liability, Scientific Publishing House, Bucharest, L. Brown, Inst. World watch, USA, Global issues of mankind, Technical Publishing House, Bucharest, M. Duţu, Environmental law. Treaty, volume I, an integrated approach, Economical Publishing House, Bucharest, M.M.Neagu, A new right belonging to the fundamental human rights-the right to a healthy environment, Bulletin of the Transylvania University of Brasov, Vol. 10(45), Published by Transylvania University Press, Brasov, M.Priesur, Droit lenvironmental, Dalloz, 1991, p M.M.Neagu, Protecting man sa fundamental right to a healthy environment by means of criminal law. Doctoral thesis, Scientific coordinator: Prof.univ.dr. Vasile Dobrinoiu, Bucharest, M.M.Barsan, Environmental community acquis and the environmental policy of the European Union, the Justice and community integration International Conference, Transylvania University of Brasov Law School, Brasov, M.M.Neagu, O.Saramet, C.Matei, L.Muresan, Juridical Protection of the Fundamental Human Right to a Healthy Environment, The Scientifical Works of the International Multidisciplinary Symposium, Ropet University, 2004, Petrosani 19. M.M.Neagu, Legal liability in environmental law, article published in Annales Universitatis Apulensis, Series Jurisprudentia, 10/2007, 1 December 1918 University of Alba Iulia, Government s Emergency Ordinance no 195/2005 regarding environmental protection, Romanian Official Gazette no 1196 of December 30 th, 2005 Dreptul omului la un mediu sănătos - un nou drept în panoplia drepturilor fundamentale prevăzut de Constituția României Rezumat Prezentul articol tratează una dintre cele mai actuale problematici contemporane, respective protejarea dreptului fundamental al omului la un mediu sănătos, în condiţile în care degradarea mediului înconjurător constituie una dintre cele mai mari ameninţări ale omenirii în zilele noastre. M-am concentrat în special asupra răspunderii juridice în acest domeniu al drepului mediului, din perspectivă contravenţională şi civilă, întrucât răspunderea juridică a devenit, sub impactul revoluţiei tehnico-ştiinţifice, o problemă deosebit de stringentă.

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