Environmental Crimes

[dropcap]E[/dropcap]nvironmental crime is a serious and growing international problem, and one which takes many different forms. Basically, it is an illegal act which directly harms the environment. The most known areas of environmental crime are the illegal emission or discharge of substances into air, water or soil, the illegal trade in wildlife, illegal trade in ozone-depleting substances and the illegal shipment or dumping of waste. Very often, environmental crimes have a cross border aspect.

[dropcap]B[/dropcap]esides the environmental crimes which are mostly laid down in the German Penal Code (Strafgesetzbuch) as the core legislation for criminal law, many specific laws dealing with environmental issues contain misdemeanours sanctioning the breach of public legal duties of individuals and corporations. For instance, the Federal Immission Control Act (Bundesimmissionsschutzgesetz, BImSchG), contains provisions in its section 62 para. 1 which sanction individuals maintaining facilities without the required public permit. Such misdemeanours can be sanctioned with high fines and should not be taken less serious than ordinary crimes. The fines can financially endanger a company in its existence.

[dropcap]T[/dropcap]he technique essential for criminal defense against environmental crimes and misdemeanours is the same, since both kinds of sanctions are ruled by the Criminal Procedure Act, involving the public prosecutor. Moreover, environmental sanctions law requires deep knowledge of the underlying public law such as the Federal Immission Control Act, the Feder Act for the Protection of Nature, the Water Resources Acts, the Federal Soil Protection Act and so on. The criminal law actually is the smaller part of the work.


 Core Environmental Crimes of the German Penal Code

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[toggle title=“Section 324: Water Pollution“]

(1) Whosoever unlawfully pollutes a body of water or otherwise alters its qualities in a negative manner shall be liable to imprisonment not exceeding five years or a fine.

(2) The attempt shall be punishable.

(3) If the offender acts negligently the penalty shall be imprisonment not exceeding three years or a fine.
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[toggle title=“Section 324a: Soil pollution“]

(1) Whosoever, in violation of duties under administrative law introduces, allows substances to penetrate or releases substances into the soil and thereby pollutes it or otherwise alters it negatively

1.  in a manner that is capable of harming the health of another, animals, plants, other property of significant value or a body of water; or

2.  to a significant extent

shall be liable to imprisonment not exceeding five years or a fine.

(2) The attempt shall be punishable.

(3) If the offender acts negligently the penalty shall be imprisonment not exceeding three years or a fine.

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[toggle title=“Section 325: Air pollution“]

(1) Whosoever, in the operation of a facility, especially a plant or machine, in violation of duties under administrative law, causes alterations of the air which are capable of harming the health of another, animals, plants or other property of significant value outside the area belonging to the facility shall be liable to imprisonment not exceeding five years or a fine. The attempt shall be punishable.

(2) Whosoever, in the operation of a facility, especially a plant or machine, in gross violation of duties under administrative law, releases harmful subtances in significant amounts into the air outside the grounds of the facility shall be liable to imprisonment not exceeding five years or a fine.

(3) Whosoever, in violation of duties under administrative law, releases harmful substances of a significant amount into the air, shall be liable to imprisonment not exceeding three years or a fine, unless the offence is punishable under subsection (2) above.

(4) If in the cases of subsections (1) and (2) above the offender acts negligently the penalty shall be imprisonment not exceeding three years or a fine.

(5) If in the cases of subsection (3) above the offender acts with gross negligence the penalty shall be imprisonment not exceeding one year or a fine.

(6) Harmful substances within the meaning of subsections (2) and (3) above are substances which are capable of

1.  harming the health of another, animals, plants or other property of significant value; or

2.  polluting or otherwise negatively and permanently altering a body of water, the air or the soil.

(7) Subsection (1), also in conjunction with subsection (4) above shall not apply to motor-vehicles, rail vehicles,aircraft or watercraft.

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[toggle title=“Section 325a: Causing Noise, vibratons and non-ionising radiation“]

(1) Whosoever, in the operation of a facility, especially a plant or machine, in violation of duties under administrative law, causes noise which is capable of harming the health of another outside the area belonging to the facility, shall be liable to imprisonment not exceeding three years or a fine.

(2) Whosoever, in the operation of a facility, especially a plant or machine, in violation of duties under administrative law which serve to protect against noise, vibrations or non-ionising radiation, endangers the health of another, animals not his own or property of significant value belonging to another shall be liable to imprisonment not exceeding five years or a fine.

(3) If the offender acts negligently the penalty

1.  in cases under subsection (1) above shall be imprisonment not exceeding two years or a fine;

2.  in cases under subsection (2) above shall be imprisonment not exceeding three years or a fine.

(4) Subsections (1) to (3) above shall not apply to motor-vehicles, rail vehicles, aircraft or watercraft.

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[toggle title=“Section 326: Unlawful Disposal of Waste“]

(1) Whosoever unlawfully, outside a facility authorised therefor or in substantial deviation from the proscribed or authorised procedure, collects, ships, treats, utilizes, stores, dumps, discharges, disposes of or trades in, brokers or otherwise commercialises waste which

1.  contains or can generate poisons or carriers of diseases which are dangerous to the public and are communicable to persons or animals;

2.  is carcinogenic in humans, has harmful reproductive effects or can cause alterations in the genetic make-up;

3.  is prone to explode, spontaneously combustible, or of more than merely minor radioactive quality; or

4.  because of its nature, composition or quantity is capable of:

(a)  polluting or otherwise negatively and permanently altering a body of water, the air or the soil or

(b)  endangering an existing population of animals or plants

shall be liable to imprisonment not exceeding five years or a fine.

(2) Whosoever ships into, out of or through the Federal Republic of Germany,

1.  waste in significant amounts as defined by Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ L 190, 12.7.2006,1, L 318, 28.11.2008, 15), last amended by Regulation (EU) No 135/2012 (OJ L 46, 17.11.2012, 30), provided it is a case of illegal shipment under Article 2 No 35 of Regulation (EC) No 1013/2006, or

2.  other waste contrary to a prohibition or without the required permit within the meaning of subsection (1) above,

shall incur the same penalty.

(3) Whosoever in violation of duties under administrative law fails to deliver radioactive waste shall be liable to imprisonment not exceeding three years or a fine.

(4) In cases under subsections (1) and (2) above the attempt shall be punishable.

(5) If the offender acts negligently the penalty

1.  in cases under subsections (1) and (2) above shall be imprisonment not exceeding three years or a fine;

2.  in cases under subsection (3) above shall be imprisonment not exceeding one year or a fine.

(6) The offence shall not be punishable if harmful effects on the environment, especially on persons, bodies of water, the air, the soil, useful animals or useful plants, are obviously excluded due to the small quantity of waste.
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[toggle title=“Section 327: Unlawful Operation of Facilities“]

(1) Whosoever without the required permit or contrary to an enforceable injunction

1.  operates a nuclear facility, possesses an operational or decommissioned nuclear facility or in whole or in part dismantles such a facility or substantially modifies its operation; or

2.  substantially modifies a plant in which nuclear fuels are used or its location

shall be liable to imprisonment not exceeding five years or a fine.

(2) Whosoever operates

1.  a facility which requires a permit or any other facility within the meaning of the Federal Emission Control Act the operation of which has been prohibited in order to prevent danger;

2.  a pipeline facility for the transportation of water-endangering substances within the meaning of the Law on Environmental Impact Assessment which requires a permit ; or

3.  a waste disposal facility within the meaning of the Recycling and Waste Act, or

4.  a sewage treatment facility under section 60(3) of the Federal Water Act,

without the permit or planning approval required by the respective statute or contrary to an enforceable injunction based on the respective statute shall be liable to imprisonment not exceeding three years or a fine. The same penalty shall apply to a person who, without the required permit or planning approval or contrary to an enforceable injunction operates a facility in another Member State of the European Union, in which harmful substances or mixtures are stored or used or in which dangerous activities are carried out in a manner capable of harming the life or limb of another person or of causing serious damage to animals, plants, bodies of water, the air or soil outside the facility,

(3) If the offender acts negligently the penalty

1.  in cases under subsection (1) above shall be imprisonment not exceeding three years or a fine;

2.  in cases under subsection (2) above shall be imprisonment not exceeding two years or a fine.

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[toggle title=“Section 328: Unlawful handling of radioactive substances, dangerous substances and goods“]

(1) Whosoever produces, keeps, transports, treats, processes or otherwise uses, imports or exports

1.  nuclear fuels without the required permit or contrary to an enforceable injunction; or

2.  other radioactive substances which because of their nature, composition or quantity are capable of causing the death of or serious injury to another or of causing serious damage to animals, plants, bodies of water, the air or soil by ionising radiation, without the required permit or contrary to an enforceable injunction

shall be liable to imprisonment not exceeding five years or a fine.

(2) Whosoever

1.  fails promptly to deliver nuclear fuels which he is obliged to deliver on the basis of the Peaceful Use of Nuclear Energy Act;

2.  delivers nuclear fuels or substances indicated in subsection (1) No 2 above to unauthorised persons or procures their distribution to unauthorised persons;

3.  causes a nuclear explosion; or

4.  encourages another to commit an act as indicated in No 3 above or supports such an act,

shall incur the same penalty.

(3) Whosoever in violation of duties under administrative law

1.  in the operation of a facility, especially a plant or technical installation, stores, treats, processes, or otherwise uses radioactive substances or dangerous substances and mixtures under Article 3 of Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 ( OJ L 353, 31.12.2008 ), last amended by Regulation (EC) 790/2009 (OJ L 235, 5.9.2009, 1)

or

2.  transports, forwards, packs, unpacks, loads or unloads, receives or supplies to another dangerous goods,

and thereby endangers the health of another, animals , plants, bodies of water, the air and soil , or property of significant value belonging to another ,shall be liable to imprisonment not exceeding five years or a fine.

(4) The attempt shall be punishable.

(5) If the offender acts negligently the penalty shall be imprisonment not exceeding three years or a fine.

(6) Subsections (4) and (5) above shall not apply to acts under subsection (2) No 4 above.
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[toggle title=“Section 329: Endangering protected areas“]

(1) Whosoever contrary to an ordinance enacted on the basis of the Federal Emission Control Act relating to an area which requires special protection against harmful environmental effects of air pollution or noise or in which a great increase in harmful environmental effects can be expected during periods of thermal inversion, operates facilities within the area shall be liable to imprisonment not exceeding three years or a fine. Whosoever operates facilities in such an area contrary to an enforceable order, which was issued on the basis of an ordinance indicated in the 1st sentence above shall incur the same penalty. The 1st and 2nd sentences above shall not apply to motor-vehicles, rail vehicles, aircraft or watercraft.

(2) Whosoever contrary to an ordinance or an enforceable injunction enacted to protect a water or mineral spring conservation area

1.  operates in-plant facilities dealing with water-endangering substances;

2.  operates pipeline facilities to transport water-endangering substances or transports such substances; or

3.  mines gravel, sand, clay or other solid substances within the framework of a commercial operation,

shall be liable to imprisonment not exceeding three years or a fine. A facility of a public enterprise is also an in-plant facility within the meaning of the 1st sentence.

(3) Whosoever contrary to an ordinance or an enforceable injunction enacted to protect a nature conservation area, an area provisionally set aside as a nature conservation area, or a national park

1.  mines or extracts mineral resources or other soil components;

2.  makes excavations or creates mounds;

3.  creates, alters or removes bodies of water;

4.  drains moors, swamps, marshes or other wetlands;

5.  clears woodland;

6.  kills, catches, hunts, or in whole or in part destroys or removes the eggs of, animals of an especially protected species within the meaning of the Federal Nature Conservation Act;

7.  damages or removes plants of a specially protected species within the meaning of the Federal Nature Conservation Act; or

8.  erects a building,

and thereby interferes not merely insubstantially with the respective protected interest shall be liable to imprisonment not exceeding five years or a fine.

(4) Whosoever in violation of duties under administrative law causes substantial damage, in a Natura 2000 Area

1.  to the habitat of a species listed under Annex I to the Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ L 20, 26.1.2010, 7) or in Annex II of the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, 7, last amended by Council Directive 2006/105/EC of 20 November 2006 (OJ L 363, 20.12.2006, 368),

2.  to a type of natural habitat listed in Annex I of the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, 7, last amended by Council Directive 2006/105/EC of 20 November 2006 (OJ L 363, 20.12.2006, 368),

which is of relevance to the conservation aims or the protective aim of such an area, shall be liable to imprisonment not exceeding five years or a fine.

(5) If the offender acts negligently the penalty

1.  in cases under subsections (1) and (2) above shall be imprisonment not exceeding two years or a fine;

2.  in cases under subsection (3) above shall be imprisonment not exceeding three years or a fine.

(6) If in the cases of subsection (4) above the offender acts with gross negligence, the penalty shall be imprisonment not exceeding three years or a fine.
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[toggle title=“Section 330: Aggravated cases of environmental offences“]

(1) In especially serious cases of an intentional offence under sections 324 to 329 the penalty shall be imprisonment from six months to ten years. An especially serious case typically occurs if the offender

1.  damages a body of water, the soil or a conservation area within the meaning of section 329(3) in such a manner that the damage cannot be eliminated or only at extraordinary expense or after a lengthy period of time;

2.  endangers the public water supply;

3.  permanently damages an existing population of animals or plants of a strictly protected species;

4.  acts out of profit-seeking.

(2) Whosoever by an intentional offence under sections 324 to 329

1.  places another person in danger of death or serious injury or a large number of people in danger of injury; or

2.  causes the death of another person,

shall in cases under No 1 above be liable to imprisonment from one to ten years, in cases under No 2 above to imprisonment of not less than three years unless the act is punishable under section 330a(1) to (3).

(3) In less serious cases under subsection (2) No 1 above the penalty shall be imprisonment from six months to five years, in less serious cases under subsection (2) No 2 above imprisonment from one to ten years.
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[toggle title=“Section 330a: Causing a severe danger by releasing poison“]

(1) Whosoever diffuses or releases substances which contain or can generate poisons and thereby causes the danger of death or serious injury to another person or the danger of injury to a large number of people shall be liable to imprisonment from one to ten years.

(2) If by the offence the offender causes the death of another person the penalty shall be imprisonment of not less than three years.

(3) In less serious cases under subsection (1) above the penalty shall be imprisonment from six months to five years, in less serious cases under subsection (2) above imprisonment from one to ten years.

(4) Whosoever causes the danger negligently in cases under subsection (1) above shall be liable to imprisonment not exceeding five years or a fine.

(5) Whosoever acts grossly negligently in cases under subsection (1) above and negligently causes the danger shall be liable to imprisonment not exceeding three years or a fine.
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