CRIMES AGAINST THE ENVIRONMENT

Before the Industrial Revolution and the rapid growth of the world’s population, it was understandable that the environment was not considered a fundamental legal interest. Ecological reserves were abundant and the harmful capacity of human actions, given the limited technological development of the time, was relatively insignificant.

However, after the Industrial Revolution, the enormous technological development achieved, the constant increase in the global population, and the parallel consumption of ecological resources have turned the environment into one of the most important legal interests (Schünemann).

In this regard, as Muñoz Conde points out, concern for the environment and the balance of ecological conditions has been and continues to be a typical phenomenon of our time, since ecological imbalance is one of the worst consequences of industrial civilization. River waters are polluted by wastewater discharges from large cities and factories located along their banks; automobile traffic produces gases that contaminate the air; power plants and nuclear stations disturb biological balance; beaches are invaded by “oil spills” resulting from petroleum leaks and tanker shipwrecks; and the sea becomes a gigantic atomic waste dump, among other problems.

All of this leads to discomfort, reduced quality of life, disappearance of animal species, diseases and sometimes death. For this reason, the continuous deterioration of the natural environment has prompted different countries to react by resorting to criminal law in order to set limits to this deterioration, thereby obtaining stronger protection than that provided by administrative law alone.

In the same vein, judges and prosecutors participating in the Environmental Forum held in Granada on 23–24 April 2009 recalled that although Administrative Law had traditionally been responsible for regulating environmental protection—through measures such as protecting natural areas with ecological value, protecting endangered species, regulating activities that might affect the environment, and establishing sanction regimes—it became evident that such regulation was clearly insufficient. Consequently, Criminal Law was invoked to punish conduct that seriously harms the environment.

In Spain, this awareness is reflected in the Spanish Constitution, whose Article 45(1) states that:

“Everyone has the right to enjoy an environment suitable for personal development, as well as the duty to preserve it.”

Paragraph 3 of the same article also provides for the possibility of criminal sanctions against those who violate the rational use of natural resources.

As a consequence, Article 347 bis was incorporated into the Criminal Code in 1983, and later the current Criminal Code introduced a significant number of criminal offences, expanding both their scope and penalties.

Nevertheless, the dependence of Criminal Law on Administrative Law in environmental matters is evident. This is why the doctrine speaks of the “blank criminal law” (ley penal en blanco), meaning that the criminal rule does not fully define the prohibited conduct but instead refers to administrative regulations.

Examples include, among others, Articles 319, 325, 333, and 334 of the Criminal Code, which refer to laws or provisions from the administrative sphere.

The construction of criminal offences as blank criminal laws, together with the enormous amount of environmental regulations and the absence of an Environmental Code that systematizes these provisions, makes it difficult for both citizens and criminal judges to effectively know which behaviors are prohibited.

LEGAL REGULATION

The Spanish Criminal Code regulates environmental protection expressly in Title XVI, entitled:

“Crimes relating to land planning and urban development, and the protection of historical heritage and the environment.”

(This title was modified by Organic Law 5/2010 of 22 June, which entered into force on 23 December 2010.)

This regulation is structured into five chapters:

1. Crimes against land-use planning

2. Crimes against historical heritage

3. Crimes against natural resources and the environment

4. Protection of flora, fauna, and domestic animals

5. Common provisions

All these chapters protect interests that legal doctrine classifies as collective or supra-individual legal interests, which are closely related to the environment in a broad sense and therefore to the very existence of human beings.

Environmental law—including environmental criminal law—has been defined by case law as:

the set of legal rules aimed at protecting, conserving, and improving those elements that represent natural wealth worthy of protection due to their ecological value, contributing to the improvement of quality of life and personal development through their enjoyment.

Natural elements lacking such values are excluded from its scope in order to ensure sustainable development.

Since Article 45 of the Constitution places environmental protection in the context of human development and quality of life, it is coherent that criminal legislation establishes penalties for conduct that endangers human health as a consequence of environmental damage.

This position has been supported by case law such as:

• Judgment of the Provincial Court of Jaén (20 March 2006)

• Judgment of the Provincial Court of Jaén (24 October 2007)

• Judgment of the Spanish Supreme Court (27 April 2007)

Similarly, constitutional jurisprudence has emphasized that environmental law must protect natural elements in order to improve the environment and quality of life, which includes human health.

THE ECOLOGICAL CRIME (ARTICLE 325 OF THE CRIMINAL CODE)

Article 325 of the Criminal Code establishes that:

Anyone who, in violation of laws or general provisions protecting the environment, directly or indirectly causes or carries out emissions, discharges, radiation, extraction, excavation, landfill operations, noise, vibrations, injections or deposits into the atmosphere, soil, subsoil, or inland, underground or maritime waters—including the high seas—and which may seriously damage the balance of natural systems, shall be punished with imprisonment from two to five years, a fine of eight to twenty-four months, and special disqualification from profession or occupation for one to three years.

If the risk of serious damage affects human health, the prison sentence shall be imposed in its upper half.

Elements of the Offence

The offence includes the following elements:

1. Objective Element

The conduct must consist of causing or carrying out, directly or indirectly, activities such as:

• emissions

• discharges

• extractions or excavations

• landfill operations

• residues

• vibrations

• injections

• deposits

These must affect elements of the physical environment such as:

• the atmosphere

• soil

• subsoil

• inland waters

• marine waters

• groundwater

2. Normative Element

There must be a violation of an extra-criminal rule, meaning a breach of administrative regulations or environmental laws governing such activities.

3. Value Element

The conduct must create a serious risk to the protected legal interest, namely the environment or natural systems.

4. Subjective Element

The offence requires intent (dolus), meaning that the perpetrator:

• either intended the conduct, or

• recognized the risk and continued the activity anyway.

Objective Conduct

The typical conduct consists of “causing or carrying out emissions or discharges.”

Although the wording appears to require an active behavior, the offence also includes commission by omission. This occurs when a person:

• allows a discharge to occur,

• tolerates it,

• or fails to take measures to prevent it.

The Supreme Court Judgment 105/1999 (27 January) confirmed that the offence includes such omissions.

The verbs “to provoke” and “to carry out” are not synonymous:

• To provoke means to originate, facilitate, or promote.

• To carry out means to execute the action.

Thus, “provoking” may also include maintaining or allowing ongoing pollution.

Concept of Discharge (Vertido)

The concept of environmental discharge was clarified by the Court of Justice of the European Communities, which defined it as:

any act attributable to a person by which hazardous substances are directly or indirectly introduced into water.

The Spanish Supreme Court has also distinguished between:

• Article 325 (polluting discharges), and

• Article 328 (illegal deposits or landfills).

For example, Supreme Court Judgment 215/2003 (11 February) ruled that the discharge of pig slurry from a farm with 5,000 pigs into permeable pits, causing groundwater contamination, constitutes the offence under Article 325, not Article 328.