Collab: Tomás Zambrano, lawyer with a focus on Tax Law, Diploma in Environmental Law, Legal Advisor to the Undersecretariat of Policy and Commercial Management.
When one delves into the study of Environmental Law (#ForABetterWorld), they encounter a branch called "Environmental Criminal Law" in Argentina While fascinating, it currently presents practical problems that are difficult to resolve.
First of all, we must keep in mind that in criminal proceedings, the guarantees and principles are designed to protect the defendant's right to a defense. To avoid being overly detailed, the principle "In Dubio Pro Reo" (Articles 18 and 33 of the National Constitution and Article 8.1 of the American Convention on Human Rights) is a clear and vivid example where, in the face of a "Noticia Criminis" (report of a crime), and in the presence of doubt about its commission, the presumption of innocence must be upheld for the defendant/accused.
Now, the so-called "Precautionary Principle" (Article 41 of the National Constitution and Article 4 of Law number 25.675) tells us that: "in the face of doubt about the existence of environmental damage, the absence of information or scientific certainty shall not be reasons to (...) postpone the adoption of effective measures to prevent environmental degradation".
Considering that the National Constitution does not prioritize rights, meaning that all rights have the same hierarchy, how should this apparent and insurmountable contradiction be resolved?
It seems advisable to eliminate the hypothesis of "contradiction" as it is well-known that there are principles of constitutional interpretation recognized by both doctrine and jurisprudence. Among them, we can identify the "Principle of Constitutional Unity" and the "Principle of Practical Concordance". Broadly speaking, the former indicates that the constitution should be read as a whole and not in isolated compartments. The latter points to the necessity of coherence within this unity.
Having said that, it seems clear to me that the criminal route is not the most suitable for preventing or stopping environmental damage. This is because, as we have seen, doubt works in favor of the defendant, which involves a series of evidentiary procedures, challenges, and various formalities that safeguard and protect the defendant's procedural guarantees.
If one wishes to impose prison sentences on those responsible for environmental damage, the issue should first be addressed in the administrative courts, in a specialized administrative tribunal, or through the creation of a competent environmental court. Once the environmental damage has been prevented or ceased, then punishment should be pursued in the criminal courts.
Another approach, which can indeed be seen in some provinces where the "Federal Criminal Procedure Code (Argentina Law)" is already in effect, is the application of Article 35 of the aforementioned Code, which refers to the suspension of the trial for probation. This is possible under the following circumstances:
When the crime provides for a maximum sentence of THREE (3) years of imprisonment and the defendant has not been sentenced to prison or FIVE (5) years have passed since the expiration of the sentence;
When the circumstances of the case allow for the suspension of the applicable sentence;
When the application of a non-custodial penalty is appropriate
In any of these cases, the defendant may propose to the prosecutor the suspension of the trial for probation. This proposal may be made until the end of the preparatory stage, unless there is a change in the legal qualification during the trial hearing that allows for its application at that stage. A hearing will be held to which the parties and the victim will be summoned, and they will discuss the rules of conduct to be imposed.
What this allows is to "exchange" so to speak, a prison sentence for "Behavioral Measures" which can ultimately involve obligations such as remediation, reforestation, and any measures aimed at repairing the damage.
It is by far the best solution given how difficult and arduous it is to achieve a criminal conviction for environmental damage
Another solution provided by this Federal Code is the "Conciliatory" route, as outlined in Article 34. A clear example: of this was in the case "FCR 27/2022 titled "CLEONA S.A. v. INF LAW number 24.051" with the agreement homologated on February 24, 2023. In this case, and thanks to the significant efforts of Prosecutor Federico Baquioni, an agreement was reached in which Cleona S.A. undertook the following obligations: a) To broadcast an environmental awareness spot; b) To create and install cognitive accessibility signage at strategic points in the National Park for informational and illustrative purposes regarding the surrounding landscape and environment; c) To create and install historical heritage information signage; d) To provide 6 trips of the Lake Safari Excursion to the Alerzal Milenario for educational institutions. The "Behavioral Measures" are reasonable, considering that the indictment was about a fuel spill from a boat, which primarily affected the lake surface, and the technical evaluation at that time concluded that it was not possible to mitigate the effects of that pollution in the water. Additionally, the company also paid the fine imposed in the administrative procedure.
In conclusion, either the criminal route is abandoned to cease or mitigate damage, or one resorts to these types of solutions provided by the Federal Criminal Procedure Code, which are essentially "escape valves" from the criminal process.
What is clear is that the current situation of endless cases, most of which are resolved by the statute of limitations on the charged offenses, is unfortunately unsustainable.
Comments