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Environmental crime poses a significant threat to the environment and society; however, its effective prosecution in many jurisdictions faces a number of objective and systemic challenges. Despite the strengthening of European legislation, particularly with the adoption of Directive (EU) 2024/1203, which significantly increased penalties for environmental offenses, the actual effectiveness of law enforcement remains in question due to procedural obstacles and insufficient institutional mechanisms.
Key Challenges in Proving Environmental Crimes
Establishing the fact and extent of environmental damage:
Cumulative effects and delayed consequences. Pollution of water, soil, or the atmosphere often occurs over a long period of time and has a cumulative effect. It is difficult for law enforcement agencies to pinpoint the exact moment or period when an individual’s action or inaction crossed the threshold that triggers criminal liability.
Complexity of Assessment. Investigations of this nature require complex technical expertise and the involvement of specialized laboratories and scientists who can provide conclusions regarding the nature of the damage or risks. In the absence of coordinated cooperation between environmental inspection agencies and law enforcement agencies, the process of gathering evidence is delayed, and proving guilt becomes more difficult.
Establishing a cause-and-effect relationship:
Multiple sources of pollution. It is particularly difficult to prove a direct causal link when pollution or other adverse effects are caused by the combined actions of several enterprises located in the same industrial zone or even in different countries.
The issue of contribution. In such cases, questions arise regarding the extent to which each potential polluter contributed to the total harm and whether this contribution can be attributed to criminal liability. The absence of a clearly established chain of causation often leads to the reclassification of criminal acts as administrative or civil law violations. The case of the ILVA steel plant in Italy vividly illustrates this problem, where the appellate court overturned a 2021 verdict and ordered a new trial due to procedural violations related, in particular, the difficulty of proving a causal link between emissions and increased mortality.
Proving the form of guilt (the subjective element of the crime):
Negligence vs. intent. A significant portion of offenses occur as a result of negligence or carelessness, when the perpetrator did not anticipate the possibility of devastating consequences for the environment. Although Directive 2008/99/EC provides for criminal liability for both intentional and seriously negligent acts, the definition of “serious negligence” remains within the competence of national legislators, leading to varying enforcement practices across EU countries.
Lack of direct evidence. This results in some countries establishing stricter criteria and more frequently treating such acts as crimes, while others tend to limit themselves to administrative penalties.
Low conviction rate:
“Impunity” for environmental crimes. In a number of
EU member states, particularly in Central and Eastern Europe, there has been an increase in the number of registered cases; however, a significant portion of them end with the charges being dropped or reclassified as administrative offenses. This is due to insufficient investigative resources and the limited specialization of judges and prosecutors, who often lack the necessary experience or knowledge to handle complex environmental cases.
The complexity of gathering evidence. Even in countries with well-developed environmental law enforcement systems, the conviction rate remains low due to the difficulty of gathering evidence and the need for highly specialized expert assessments.
Proposed Comprehensive Systemic Measures
To overcome these obstacles and ensure the effective prosecution of environmental crimes, it is necessary to implement comprehensive systemic measures:
Strengthening the institutional capacity of law enforcement agencies:
Establishing specialized units. It is recommended to create a specialized Department of Environmental Investigations within the National Police, with regional offices in every region. The staff of such a department should number at least 500 personnel, with adequate funding to purchase modern analytical equipment.
Mandatory professional development. It is necessary to introduce mandatory annual professional development for investigators, prosecutors, and judges on the investigation of environmental crimes, involving leading scholars and practitioners in the training process.
Improving the evidence base and investigative methods:
Methodology for determining damage. A methodology for determining the extent of environmental damage for the purposes of criminal proceedings should be developed and approved at the government level. It should be based on a comprehensive approach, taking into account both direct material losses and long-term environmental consequences. It is advisable to establish that significant environmental damage—which constitutes grounds for criminal prosecution—is defined as damage exceeding 100,000 non-taxable minimum incomes or damage that has led to irreversible changes in the ecosystem.
Unified Electronic Database. Create a unified electronic database of environmental violations that will allow for tracking the history of violations by each business entity and ensure the prompt exchange of information between various regulatory agencies.
Encouraging lawful behavior and reducing underreporting:
The institution of environmental plea agreements. Introduce the institution of environmental plea agreements, which would provide for the possibility of exemption from criminal liability on the condition of voluntary admission of the violation, full compensation for the damage caused, and the implementation of environmental restoration projects. At the same time, the cost of restoration measures must amount to at least 150% of the damage caused, which will create an additional incentive for preventive compliance with environmental requirements.
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The impact of European directives on the harmonization of criminal environmental policy is significant, obligating member states to implement minimum standards for the criminalization of environmental offenses. However, as practice shows, proving environmental crimes remains procedurally complex and resource-intensive, requiring comprehensive environmental expertise, establishing a complex chain of cause and effect, and proving a specific form of culpability.
Overcoming these obstacles requires further professionalization of law enforcement and judicial bodies,
improving investigative methods, and expanding technical monitoring capabilities. Only through a comprehensive approach and coordinated interaction among all stakeholders is it possible to achieve genuine environmental protection and ensure that punishment for environmental crimes is inevitable.
Author: Ruslan Gutsol, Barrister
Source: https://zib.com.ua/ua/168008-skladnist_dovedennya_ekologichnih_zlochiniv_vikliki_ta_shlya.html