Izabela Zielińska-Barłożek

Izabela Zielińska-Barłożek: Prison for pollution

Litigation portal: The Polish Ministry of the Environment has drafted and submitted to the government for consideration the outline of a bill that would amend the Penal Code and certain other non-code penal provisions. The proposal calls for criminal sanctions to be imposed for environmental violations in more new cases. Is there a need to amend Polish regulations concerning environmental crimes?

Izabela Zielińska-Barłożek: It is necessary to amend the law in order to implement Directive 2008/99EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law, commonly known as the “Criminal Directive.” The member states have until 26 December 2010 to introduce relevant changes in law to implement the directive. It is thus high time to concentrate on the amendments which are to be in force in less than 6 months.

Did the issue of crimes against the environment need to be addressed in a directive at the EU level?

More and more environmental crimes have a cross-border dimension. A good example is illegal hauling of waste, which has been an issue in Poland for several years. In order to battle international environmental crimes effectively, the legal systems of the member states need to be brought closer together and uniform criminal sanctions should be introduced. The point is to avoid situations in which the same act is subject to a sanction in one state, but in another state either there is no sanction at all, or there is a disparity between the sanctions across member states. Some businesses effectively exploit such differences in regulations to their advantage and calculate where among the member states it “pays” to take certain actions that are damaging to the environment. The directive is designed to head off that type of calculation.

And today there is no doubt that environmental crimes are socially harmful. The question remains when they should be punishable as a petty offence, and when as an regulatory offence. The European Parliament decided that certain acts that are particularly harmful to the environment should be punishable as a crime in all member states.

How much will the Penal Code change after the proposed changes are introduced?

The only chapter of the Penal Code that will change is Chapter 23, which deals with environmental offences. At first glance the changes might appear merely cosmetic, but in effect they will result in more severe penal liability. First and foremost the proposed regulations penalize environmental offences that may pose a threat to the life or health of even just one person. The current regulations provide for penal liability only for causing a threat to the life or health of numerous people. In the case of waste hauling practices, which I mentioned before, the current law provides for imprisonment of 3 months to 5 years for unlawfully storing, removing, processing, recycling, neutralising or transporting waste, including across borders, in a manner that may threaten the life or health of many people. When the amendment comes into force, the same penalty will apply to someone who handles waste unlawfully in a way that threatens the life or health of even one person. The penal sanction for polluting water, air or soil will be amended in the same way. If such acts result in serious injury to human health, the penalty will be higher, from 1 to 10 years in prison, and if the act results in the death of a person, from 2 to 12 years in prison.

There will be stiffer penalties for environmental damage caused when operating an installation. If pollution to the water, air or soil posing a threat to human life or health occurs in connection with operation of a plant, the perpetrator will be subject to imprisonment from 6 months to 8 years. It would also be a crime to cause unintentional harm to the environment in connection with the operation of a plant.

Does this mean the proposed changes are intended to make the penal sanctions for environmental crimes harsher?

Generally not. The proposed guidelines do not call for increasing the maximum limits of penalties. Most crime in their basic form will continue to be subject to a penalty of 3 months to 5 years in prison. An unintentional offence will be subject to a fine, or probation or imprisonment up to 2 years, but certain aggravated offences will be subject to imprisonment from 6 months to 8 years, or 2 to 12 years. The regulations would be made stricter by expanding the statutory elements of offences. In other words, less serious acts would be subject to criminal penalties than is the case now.

In the context of penalties, I should mention a certain lack of clarity in the draft guidelines which in practice could lead to problems in interpretation. It is proposed to introduce into the Penal Code the term “substantial damage to the quality” of water, air or soil, which is not defined more precisely. This has already come in for criticism, because criminal law should defined prohibited acts as precisely as possible and leave as little leeway as possible to the court applying the law.

The title of the proposal suggests that it involves amendments not only to the Penal Code, but other acts as well. What other acts may be changed?

There are major new provisions proposed for the Act on Protection of Nature. Under the proposal, there would be a penalty of 3 months to 5 years’ imprisonment for anyone who, in violation of a prohibition in force with respect to protected species of plants, animals or fungi, comes into possession of more than a negligible number of specimens, under conditions that may impact the conservation status of the protected species. If the act were unintentional, the perpetrator would be subject to a fine, or probation or imprisonment up to 2 years.

Amendments are also proposed to the Act on Substances Depleting the Ozone Layer.

Will the amendment affect only individuals, or also collective entities such as commercial companies?

The proposed changes will certainly make criminal liability stricter for both individuals, to whom the Penal Code is addressed, and corporate entities. The latter are subject to the Act on Liability of Collective Entities for Punishable Offences, which includes environmental crimes under the Penal Code among the offences for which collective entities may be held liable. Under the proposed changes, the list of offences in this act would be extended to include penal provisions to be introduced into the Act on Protection of Nature and the Act on Substances Depleting the Ozone Layer. In practice the Act on Liability of Collective Entities is rarely applied, but this should change over time. We may expect the United States to lead the way when it comes to new trends and pressure to hold collective entities accountable, particularly in the wake of the catastrophic release of oil in the Gulf of Mexico. Europe should follow suit.

So management board members of companies that conduct environmentally harmful activity need not lose sleep over this, because the proposals do not call for any major changes in the Act on Liability of Collective Entities?

The act is rarely applied in practice. Under the act, a collective entity may be subject to criminal liability if a person defined in the act has committed a crime against the environment as defined in the Penal Code. Thus, in an indirect fashion, by stiffening criminal liability under the amended Penal Code, there may be a significant change to this act as well.

Moreover, the set of persons who may be held to account criminally for environmental offences already extends beyond the perpetrator himself. Even now a management board member who is not the direct perpetrator of an illegal act may be held criminally liable for an environmental offence defined in the Penal Code. Under general principles of criminal law, a person who directs performance of an illegal act by another person, or uses the other person’s dependence on him to recommend that the person commit the act, is also guilty just like the direct perpetrator. Moreover, the court may apply the same sanction for aiding and abetting as it does for direct commission of the illegal act. If the proposed changes are enacted, there will be criminal liability for lesser acts causing environmental harm, and prosecution will be mandatory whether or not there is a private complaint. This means that apart from the main perpetrator, a management board member may also be held criminally accountable, depending on the facts of the specific case.

The changes are unavoidable because they arise under a directive that Poland is required to implement. Will the changes prove to be important in practice?

Indeed, the changes are unavoidable. Member states have until 26 December 2010 to implement the directive. I believe that the changes will be important in practice, because less serious acts will be subject to criminal sanctions than is now the case.

In addition, the criminal laws of the member states will be unified, which should discourage businesses that cause harm to the environment from migrating to member states with less restrictive regimes for environmental offences. This may have a painful effect on many businesses. The European Parliament believes that criminal sanctions may serve as a more effective deterrent to commission of a given offence than administrative penalties or civil damages, although many criminal law experts would disagree.