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On the Legal Nature of Environmental Crimes

On the Legal Nature of Environmental Crimes


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By Diethell Columbus Murata

Environmental crime is a social crime, since it affects the bases of social-economic existence, attempts against the materials and resources essential for productive and cultural activities, endangers indigenous ways of life insofar as it implies destruction of systems of human relationships - space.

Environmental crime is a social crime, since it affects the bases of social-economic existence, attempts against the materials and resources essential for productive and cultural activities, endangers indigenous ways of life insofar as it implies destruction of systems of human relationships - space.
Ab initio, we must point out that the set of criminal norms that sanction conduct contrary to the rational use of natural resources, must have an intrinsic formal condition of sanctioning such conduct through penalties and, fundamentally, the criminal types must be correct and functional in order to achieve a fair and effective protection of the environment.

It should also be considered that if criminal - and non-criminal - legislative action lacks the basis of a planning policy, which undoubtedly requires detailed knowledge, in quality and quantity, of current environmental problems and their projection, its effectiveness will be limited, either due to a lack of knowledge of reality or the choice of excessively ambitious objectives.

Criminal Law, as an instrument to protect the environment, is auxiliary to administrative prevention, and by itself lacks the aptitude to be an effective weapon against behaviors with negative effects on the environment in general; This Right is obviously not the only resource available to the legal system for the correction of behaviors that are considered to be infringing it, but it does represent the most serious instrument. In other words, the distinctive note between criminal sanctions and others, such as administrative ones. Therefore, criminal sanctions should only be applied in those cases in which either the protection that another sector of the legal system can offer is not sufficient, or because the seriousness of the act committed denounces other measures other than criminal as inoperative.

In this sense, there are authors such as BLOSSIERS HÜME who believe that the nature of Criminal Law is not secondary, since even when it defends legal rights or institutions belonging to other branches of Law; It is not limited to listing merely protective sanctions for different legal realities, but rather, before providing for a penalty, it is the criminal law itself that indicates the scope of the behavior that gives rise to such penalties. Therefore, ordinarily the criminal norm is never totally subordinated to what non-criminal laws provide; It is highlighted that Criminal Law is as autonomous as the more traditional legal disciplines.

RODRÍGUEZ RAMOS affirms: "Environmental Criminal Law is therefore secondary, in the sense that the primary role in its protection corresponds to non-criminal regulations, and accessory in terms of its protective function can only be carried out by supporting the administrative regulations that mainly and direct, regulates and protects the environmental reality ".

POSTIGLIONE, cited by JAQUENOD DE ZSÖGÖN, in his treatise on Environmental Law, maintains that when speaking of environmental crime, he refers to an environmental crime, and defines it by saying that it is in general the "Illegal fact, provided for by positive law, harmful to the right to the environment, that is, to the essential aspect of the human, individual and social personality, in vital relation to the integrity and balance of the environment, determined by new works or actions on the territory and by voluntary, chemical or physical alterations or by any other attack or damage, direct or indirect, or in one or more natural or cultural components and the living conditions of living beings.

Environmental crime is a social crime, since it affects the bases of social-economic existence, attempts against the materials and resources essential for productive and cultural activities, endangers indigenous ways of life insofar as it implies destruction of systems of human relationships - space.

Environmental criminal protection implies a new vision, where ecological balance and quality of life are the protected legal substratum and valuable in itself. The criminal law that contemplates the protection of the environment will classify the conducts that attempt against the conservation, defense and environmental improvement. The punitive system will be integrated with a set of substantially environmental legal provisions, which referred to all those behaviors that, to a greater or lesser degree, injure the social order with the disregard of the different natural resources.

It is necessary to have a suitable inhibitory instrumental system that prevents damage from happening, blocking the illicit action and its destructive dynamism. Environmental protection implies a new vision where ecological balance and quality of life are the protected legal substrate and valuable in itself.

The criminal regulation of conducts with negative effects on the environment, obliges to classify these crimes as dangerous, in order to advance criminal protection in cases in which there has not yet been an effective damage or injury to the environment.

Now, it should be noted that with regard to ecological crimes, the main protected legal asset is the environment and it additionally follows that by protecting the environment we are protecting or guarding human life; question that enunciates the Germanic and Iberian doctrine. Let us only remember the statement of the principle "ubi homo, ibi societas, ubi societas, ibi ius", which advocates that without an adequate environment there could not be life, without life there would be no society and without society there would be no law, therefore the environment is constituted as a prius for the very existence of man and everything that exists on our planet.

BRAMONT - ARIAS TORRES, maintains in his work Criminal Law - Special Part that "Under this rubric of criminal conduct that has the same protected legal asset as a common point, this is the natural environment. These figures, however, precede being systematized in three large groups: those behaviors that generally affect any element of the environment -flora, fauna, water, air; those that involve direct injury to protected species, both in fauna and flora; and finally, those that imply an irregular urbanization or an abusive use of the land.

The author also notes that, as a closure to this issue, a precautionary measure is foreseen against the establishment of the pollution-causing activity, which does not have a strictu sensu sanctioning character, but its forecast in the field of these crimes is correct, taking into account note that these behaviors configure a type of social crime, white collar; As the teacher JIMÉNEZ DE AZÚA would say, characterized by the economic success of the motive that inspires its illicit action, and where the penalty, traditionally considered, lacks the preventive stimulus that it could enjoy against other forms of criminality; as HORMAZABAL MALAREE points out in his work Ecological Crime and Symbolic Function of Criminal Law.

In sum, we must point out that with regard to the issue of regulation of environmental crimes within Latin American legislation, it is still in its infancy; since a real awareness of the environmental problems that afflicts our societies has not yet been taken into account, and that if it is not stopped, it would perhaps lead to the disappearance of life as we know it in the future.

* By Diethell Columbus Murat
Lima - Peru (*) Author of academic texts such as "General Notions on Economics and Environmental Law"; "Ethics and Development"; "The Environment as a New Legal Object"; author of various articles published in different academic media; Lecturer on issues of Environmental Law.


Video: Environmental Crimes? (June 2022).


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