A) Introduction
The modern post-industrial era is marked by the increasing exploitation of natural resources and human intervention in nature. This poses a constant threat for the entire ecosystem and the bio-balance of the planet. Modern states have included in their laws various protection mechanisms to address this critical situation. These protective mechanisms are inextricably linked with technological advancement and the pursued model economic development. Criminal law plays an important role in this context.
B) The general framework for criminal protection of the environment under Greek Law
Criminal provisions for the prosecution of acts against nature have been a part of Greek Law since long. A constitutional legislator has also declared the environment an independent protected interest in the Ar. 24 par. 24 par.the protection of natural and cultural environment is an obligation of the State and everyone’s right. It is the duty of the State to take preventive and repressive measures to preserve it.The Constitution lays out the explicit obligation of the state. “to“Take repressive measures”For the protection of the environment, it is clear that criminal law is required due to the importance of the protected interest.
This constitutional obligation can be fulfilled largely by special penal laws, which treat environmental damage as an indictable offence. Particularly, Law 1650/1986, as amended in Law 4042/2012 (incorporating Directive No. The main legislative text of Greek Law to establish criminal protection for the environment is Law 4042/2012, which incorporates Directive No. It covers all aspects, terrestrial, marine, and gases, of the environment. It also protects the environment in all its manifestations, i.e., terrestrial, marine and gaseous. Law 743/1997This protects the marine environment and is also known as Law 4037/2012The Directives 2005/35/EC (and 2009/123/EU) that protect the marine environment and only from ship-source polluting, were incorporated into the Act are of particular importance. Aside from special penal laws, protection of environment is also sought through individual provisions of Greek Penal Code. For example, articles 264 (arson) or 265 (“arson of a forest”).
It should be noted that the European Commission approved a proposal for a Directive in December 2021. The Directive aims to replace Directive 08/99/EC and improve criminal protection of environment at both the procedural and substantial levels. The existing framework against environmental crime will be strengthened further if this Directive is adopted by the Council or the Parliament. This will allow for more efficient cooperation among member states.
C) PollutionViolation of administrative regulations (Laws 1650/1986 & 4042/2012).
Art. 28 par. 2 of Law 1650/1986 as amended by Law 4042/2012. According to this article, anyone who causes pollution or degrades the environment by an act or an omission that conflicts the provisions of Law 1650/1986 or the regulatory acts adopted under its authority, is punished by at least one year’s imprisonment or by a fine of 3,000 to 60,000 euros. In other words, the establishment of the culprits’ criminal liability, requires not only the violation of an environmental (administrative) regulation or act, but also the additional consequence of pollution or degradation of the environment. This additional outcome should be clearly determined by the competent authorities.
The legislator also provides the definitions of the terms “pollution” and “environmental degradation” in order to achieve legal certainty and to ensure that the intensity of the act against the environment is thoroughly assessed for the establishment of criminal liability. Thus, “pollution” is defined as “theThe presence of pollutants in the environment, i.e. any type of substances, noises, radiation or energy in a quantity, concentration, or for a prolonged period of time that can have adverse effects on health, living organisms, ecosystems, or cause material damage, and generally “Make the environment unsuitable to its desired uses” (Ar.2 para. 2 of Law 1650/1986. Moreover, the term “degradation” means “The production by human activity, pollution or any other alteration in the environment that is likely to have a harmful effect on the ecological equilibrium, the quality and life of the inhabitants, and the historical, cultural heritage and aesthetic value” (Art. 2 par. 4 of Law 1650/1986). It is also noted that, under Greek Law, even a negligent act or omission that has the above outcome is punishable by up to one year’s imprisonment or by a fine, as strictly stated in Art. 28 par.2 sub. b.
At the same time, Greek legislator is graduating its response to environmental crimes, having introduced a number of aggravated forms of the above-mentioned offence based on: a) the intensity of the environmental damage caused by the criminal behavior, b) the risk of a physical injury or the actual physical injury or death caused to an individual by the act of pollution or degradation of the environment and c) the sum of the intended pecuniary or material benefit of the environmental crime’s culprit. These aggravated forms of crime are listed at article 28 par.2, subsection. a) (many of these felonies are felonies) could result in imprisonment of up to ten year and severe fines ranging from 150.000 to 500,000. euros (see art. 28 par.3 sub. a – e).
D) Criminal protection for the marine environment (Laws 743/1977 & 4037/2012).
Law 743/1977, the first Greek Law, provided criminal provisions for the protection and preservation of the environment. However, it was limited to the marine environment. Ar. 13 par. 1a sub. a’ establishes as a misdemeanor, the cause of serious marine “pollution” punishable from at least three months to five years of imprisonment. Once again, the legislator itself clarifies the vague term “pollution” to avoid confusion, regarding it as “Any substance found in the ocean that alters or causes harm to the natural sea water or the fauna or flora on the seabed, or otherwise makes it unsuitable to its intended uses.” (Ar. 1 par. 1., sub. id.). Competent to assess the “severity”The criminal court that examines each case in detail is the only one who can determine the pollution as a prerequisite to criminal liability.
For instance, under Greek case law “serious marine pollution” constitutes: the turbidity of sea water and the development of pathogenic microorganisms with a consequent decrease in the oxygen content harming the fauna and flora of the seabed (seaweed, shellfish, etc.), (A.P. 733/1984), the discharge of wastewater from a hotel sewerage network without prior treatment via biological purification to the sea (A.P. 1371/1983, or the discharge of industrial or domestic waste through a well directly into the sea (A.P. 390/2004).
Furthermore, the legislator seeks to protect not only marine environment, but also individual protected interests such as physical health and property, by using the aggravated subparagraph (b). It is clear that the punishment for an act against the environmental may be anywhere from one to five years imprisonment.
L. 4037/2012 also seeks to protect marine environment, as previously mentioned. Art.6 par.1 subsection. b’, discharge of pollutants from a ship to the aquatic environment causing degradation of water quality shall be punished with at least one year of imprisonment and a fine of one thousand five hundred (1,500) to fifty thousand (50,000) euros. In particular, criminal liability is born when certain pollutants such as oil and bulk substances are discharged specifically from a ship, leading to the impairment of the water’s quality. Moreover, according to the explanatory statement of the Law the circle of the potential perpetrators is quite expanded, including “the ship-owner, the master of the sea transport, the crew members of the ship vessel, the pilots, the port officials, etc.». When, the waters’ degradation is so severe that creates a risk of death or serious body injury or extensive ecological destruction the crime constitutes a felony and the culprit may be punished by up to ten years of imprisonment and a fine of three thousand (3,000) to three hundred thousand (300,000) euros.
E) Criminal liability of the “directors of legal persons”
Α matter of particular interest is the imposition of criminal liability when environmental crimes are linked to the activity of legal entities. These entities are generally the ones that benefit from the actions that can harm the environment and not the individuals. Ar.28 Par. 5.2. and 5.1. of Law 1650/1986 as amended by ar. 7 par. 4 Law 4042/2012 was intended to clarify criminal liability for individuals governing legal entities that reap the economic benefits of environmentally harmful activity.
The introduction of special provisions regarding criminal responsibility for the above-mentioned people is mainly dictated by the fact that under Greek law legal entities are not criminal but only civil and/or administratively liable. This is due primarily to the predominant interpretation of the Greek scientific theory regarding the fundamental principles and guilt (ar.2 Par. 1 of Greek Constitution) and legality (ar.7 of Greek Constitution), that govern Greek Criminal Law, leading basically to the axiom “societas delinquere non potest’’. Decentralized legal persons, especially S.A.s can be characterized by a complicated division of labor and make it difficult to hold criminally liable all the people actually involved in the act against nature.
In particular, criminal accountability for the “directors of legal entities”, is based on their special legal obligation to supervise and monitor the compliance with the obligations imposed by the environmental legislation, according to art.28 par.5.1. Law 1650/1986 (“5.1. The chairman of the board and the supervisory board are responsible for monitoring compliance by all individuals under their orders with this law and any regulatory acts regarding the protection and preservation of the environment.) The criterion for the establishment of this obligation is therefore the leading position of the individual inside the legal entity. The definition of the term “leading position” is given on art.6 par. 2 of Law 4042/2012, in accordance with ar.6 of the Directive 2008/99/EC and it is regarded as “the position held by an individual in any legal person when it has the power, acting individually or as an organ of the legal person, either to represent it or to take decisions on its behalf or to exercise control within it”. The element of leading position is therefore based on the actual and substantial exercise power of representation, decision-making, or control over the legal entity.
In addition, apart from the leading position of the executive, a necessary factor for the establishment of this special legal obligation is the existence of a hierarchical relationship between the person in charge and the perpetrator of the crime against the environment, i.e., the culprit has to be under “the executive’s orders”.
It is easier to commit crimes of non-genuine oversight (either willfully nor negligently) by establishing a legal obligation for executives to supervise and monitor their subordinates. 15 of the Greek Penal Code. Ar.15 of G.P.C. states that not preventing criminal outcomes is equivalent to provoking them, if the person who omits or fails to act has a special legal duty to do so. In this case, if the act caused the degradation or polluting of the environment, the executive that failed to supervise its subordinates can also be held responsible, without needing to resort to the general provisions regarding participation.
Law 4042/2012 created a new, distinct offense specifically for them to prevent the impunity of legal executives. Art. 28 par. 28 par. DuringOr In relation toThe activity of the legal entity. However, in order to establish such liability, it is also necessary that the criminal outcome was not prevented due to the executive’s omission to exercise the supervision or control described in paragraph 5. 1., Willfully or by negligence. It is important to note that such liability is independent of any other forms of criminal, civil or administrative liability of another person, legal entity, or entity.
It follows that art.28 par. 5.2. three factors have to be met: a) a criminal act or omission of the executive’s subordinate that harmed the environment according to par.2 and 3 of L.1650/1986, b) the commission of the act or omission during or in relation with the activity of the legal person and c) the willful or negligent failure of the executive to exercise due diligence, so as not to prevent the criminal act or omission. It should be clarified that this provision does NOT automatically render the executive liable to all actions of its subordinates. It is best to seek out the specific act of supervision/control that an executive has omitted, which allows for the environmental harm. It is also important to note that more executives are not immune from liability if they fail to exercise the necessary supervision or control over their subordinates.
The legal person is still liable even if the executive of the legal entity is liable, at least at an administrative level. According to article 28 paragraph.5.3, this is possible. The legal entity whose benefit environmental crime was committed may be subjected to administrative sanctions, such as an administrative penalty, a temporary ban on business or exclusion from public assistance. Due to the severity of some of these sanctions, and in particular the administrative penalty, which can amount to up to three-times the benefit achieved or sought by the environmental crime, it is possible that these penalties may be considered criminal, leading to the application of the guarantees under art.6 ECHR.
F)Remarks
It is clear that the Greek national law order addresses the need for a secure environment as an independent protected interests through a complex legislative framework, which is made up of special penal laws. The relationship between these laws is not always clear. The relationship of specialty between the laws in the present Lexology and Law 4037/2012 is that Law 4037/2012 applies to the same act, and Law 743/1977 applies to the same act. However, the existence multiple and often overlapping provisions raises many practical questions. It is unclear whether the general L.1650/1986 provisions, such as art.28 para.5.2 and 3, can be used in conjunction with other environmental laws (e.g. L.4037/2012 regarding marine pollution The existence of a complex and scattered framework makes it necessary for the environmental criminal legislation to be codified in order to better implement it and ultimately to ensure that the environment is protected.
