New law on environmental crimes in force since 10 June 2011

There are now more acts against the environment punishable as crimes. In some cases members of the management board of a company may be held responsible.

The Polish Penal Code has been amended in order to implement the Environmental Crime Directive (2008/99/EC). The deadline for Poland and other EU member states to implement the directive into national law was 26 December 2010.

The Act dated 25 March 2011 Amending the Penal Code and Certain Other Acts (Dz.U. No. 94 item 549), published in the Journal of Laws on 10 May 2011, amends Chapter 22 of the Penal Code, which covers crimes against the environment. (We reported on the changes here earlier, at specific stages of the legislative process.)

The amendment has toughened liability for environmental crimes. The level of the penalties as such has not changed, but criminal liability has been extended to acts against the environment that previously were not punishable offences.

One of the most important changes is introduction of sanctions for acts against the environment that present a threat to the life or health of even one person—and not several people, as was previously the case.

For example, Penal Code Art. 182 used to prohibit pollution of water, air or soil with substances or ionising radiation which could pose a threat to the life or health of several people (punishable by 3 months to 5 years’ imprisonment). Now this punishment is applicable to pollution that could pose a threat to the life or health of any person, or cause a material reduction in the quality of water, air or soil, or destruction of plants or animals to a significant extent. There is a new classification for aggravated pollution, with a higher penalty (from 6 months to 8 years’ imprisonment), if the pollution is connected with operation of an installation. Negligent injury to the environment in connection with operation of an installation is also now a crime (punishable by up to 3 years’ imprisonment).

Will it be possible to convict management board members of a crime if pollution is caused by the fault (intentional or unintentional) of an employee or other person hired to perform certain activities, creating a risk to human life or health? It all depends on the situation, but generally speaking, an individual who, under the articles of association or internal corporate regulations, represents a company or is responsible for conducting its affairs in the area of operations in which pollution occurred may be regarded as the perpetrator. Thus, for example, the management board member responsible for production or wastewater policy, or the environmental compliance director of a plant, could be found to be a perpetrator.

If pollution does occur, but a legal person that is using the environment complies with the emission standards set forth by law or in a sectoral or integrated permit, as a rule this should exclude prosecution under Penal Code Art. 182.

The crime of improper waste handling under Penal Code Art. 183 has been redefined. Previously it was an offence (punishable by 3 months to 5 years’ imprisonment) for anyone to unlawfully store, remove, process, reclaim, neutralise or transport waste, including across borders, in a way that could pose a threat to the life or health of several people. Now the same penalty will apply to anyone who in this manner of waste handling may pose a threat to the life or health of any person or cause a material reductionin the quality of water, air or soil, or destruction of plants or animals to a significant extent.

Problems may arise from the use of the undefined concepts of “material” reduction of water, air or soil quality and destruction of plants or animals “to a significant extent” in Art. 182 and 183. It will be difficult to define the limit beyond which pollution may “materially” reduce the quality of water, air or soil, or when destruction of plants or animals is “significant.” This lack of definition is especially undesirable in criminal provisions, under the principle nulla poena sine lege certa—in other words, criminal liability must be defined clearly enough to determine whether an act will be punishable. A determination of whether a crime has been committed will thus require a case-by-case consideration of the specific circumstances.

As was the case prior to the amendment, there will be a more severe penalty, of 1 to 10 years’ imprisonment, if such acts result in serious injury to human health. If death results, the penalty may be 2 to 12 years’ imprisonment.

The new regulations concerning environmental crimes went into effect on 10 June 2011.

Bartosz Kuraś, Environmental Law practice, Wardyński & Partners