National
coordinator of enforcement of environmental legislation for the Public
Prosecution, The Hague.
P.O. Box
20302
2500 EH DEN
HAAG
Criminal
enforcement of environmental legislation.
The Public
Prosecutor in The Netherlands and the tools he needs for enforcement of
environmental legislation.
Introduction
The
position of the Public Prosecution
In the
Netherlands the Public Prosecution has the monopoly of prosecution; only the
public prosecutor can bring a case before a criminal court, police and citizens
cannot.
A citizen,
however, who has any interest in prosecuting a particular offence, has some
influence; if the public prosecutor remains inactive, he can lodge a complaint
at the Higher Court. The Court can
order the public prosecutor to prosecute a case.
The public
prosecutor has a wide range of possibilities when dealing with a criminal case.
He can put
the case aside for “technical” reasons (such as lack of evidence or lapse of
time) or for reasons of “public interest” (for instance in the case of minor
offences or if the damage is repaired by the offender). The public prosecutor can also settle the
case out of court on condition that a certain amount of money is to be paid by
the offender (sometimes there are more or other conditions such as repair of
damage). If it is not appropriate to
put a case aside or settle it out of court, the suspect is prosecuted.
Systems of
sanctions in environmental legislation.
Three
systems can be distinguished here:
A. The administrative system: the administration, mostly the local or
provincial government, is the authority that issues licenses for
environment-endangering activities and is in charge of supervision and control
of compliance with provisions, connected to most licenses. The administration has several sanctions,
varying (depending on the environmental legislation on hand) from official warning
and penal sums to closing of industrial plants or installations, withdrawal of
a license and “restitutio in integrum” (restoring to the pre-damage situation)
at the expense of the offender.
B. Criminal law: there is a very wide range of sanctions; for most of
environmental offences terms of imprisonment ranging between maxima from six
months to two years and fines ranging between maxima from dfl. 10,000.- (US
$5,000.-) to dfl. 100.000.- (US $50,000).
Dutch legislation has no special minimum sanctions, only very low
general minima.
A not very
often imposed sanction is closing the plant or part of it, where the offence
has been committed. An important
measure is deprivation of the estimated illegal profits, obtained by committing
the offence. In criminal law as well an
offender can be obliged to restore the pre-crime situation. In the pre-trial stage provisional measures
can be ordered, such as abstinence of certain activities and also temporary
closing of a plant or enterprise.
For a small
category of very serious environmental crime (where evidence is required that
danger has been caused to public health) the law provides more severe
punishment (up to 12 years). Often
grievous environmental crime is strongly connected to common kinds of crime,
especially fraud. Then stronger sanctions
can be applied; in the pre-trial phase arrest can be followed by remand in
custody.
In general,
policy-powers according to environmental law are somewhat more extended than in
the regular code of criminal procedure:
even when there is (still) no suspicion of any offence (some degree of)
inspection is permitted, and the possibilities for search and seizure are
larger.
Dutch
criminal law acknowledges not only criminal liability of natural persons but
also corporate liability. In environmental
practice very often corporations are prosecuted.
C. Civil law.
Recently very often applied in cases of serious environmental damage,
and very successfully. Especially in
suits of the State versus polluters of soil.
Often cases of soil pollution are involved that are beyond criminal
prosecution because of lapse of time.
It is
generally assumed that the possibilities of civil actions are treat, especially
compared to the output of criminal procedures.
Criminal law requires observance of many formalities and technicalities
for the sake of protection of the rights of the defendant; lack of observance
of these rules can easily be fatal for the prosecution. In administrative law on the other hand
there is a strong tendency with judges to protect economic interests of
offenders.
Civil law
is considerably less formal and attribution of the burden of proof is less
strict, depending on reasonableness, and can be in favour of the plaintiff (in
environmental cases often the State).
It is
important that in enforcement of environmental law administration, public
Prosecution and the lawyer for the State strengthen their cooperation,
especially the exchange of information (they should form a “triple alliance”).
Relationship
between administrative and criminal sanctions.
Criminal
enforcement of environmental law has been hampered for a long time by
discussions about the relationship between administrative enforcement and
criminal enforcement. It has always
been generally accepted that enforcement of environmental law is primarily the
task of the administration since by law supervision and control of observance
of environmental rules have been attributed to government authorities
(especially local and provincial authorities) and since administrative sanctions
are instruments, designed to put an end to an illegal situation. But as a consequence it was traditionally
claimed that criminal law had to operate only as a last resort (as “ultimum
remedium”), i.e. if all administrative sanctions had been tried and had failed
to sort any effect.
Of course
this issue inevitably in many cases led to discussions between government
authorities and the Public Prosecution concerning the question whether the
stage of last resort, i.e. of the necessity of criminal sanctions had been
reached or not. If authorities did not
agree there was always a risk of passivity on both sides, a not so rare
phenomenon.
It seems
that these discussions now finally have come to an end. Now it is generally assumed that both
authorities, government and Public Prosecution have their OWN responsibility
towards environmental crime and their own functions in subduing it; lack of
activity on one side cannot be an alibi for passiveness on the other side. And equally accepted is the idea that there
are situations where administrative sanctions certainly are not very
appropriate, so there criminal enforcement must be considered as the one and
only tool.
Fighting
serious environmental crime is primarily the task of police and public
prosecutor; confronting smaller offences is primarily the duty of local and
provincial government. But in both
fields authorities have to cooperate and lend support to their mutual
activities.
Police
Authority
on the police is dualistic in The Netherlands, i.e. divided according to the
two main duties of the police:
maintaining public order and crime control. The mayor has authority on the police as far as public order is
concerned; the public prosecutor commands the police as far as crime control
and investigation of offences is concerned.
It is therefore necessary that the mayor, the public prosecutor and the
police agree on the use that has to be made of the (limited) capacity of the
police. Thus, in the eighties
everywhere in The Netherlands the so-called triangle-negotiations have been
introduced in order to make (periodically) agreements between the said partners
on the most desirable execution of police-duties in the both fields: public order and crime control. It is clear that duties in both fields
easily can overlap; there is no strict boundary.
It is
important to mention that during the last decade more attention has been
focused on prevention of crime; this is seen primarily as a duty of the local
government and the society as a whole, but a task for the police in this domain
is assumed as well (monitoring during police patrol).
The
regional Inspectorate for the Environment
A highly
specialized branch of the Ministry for the Environment. Principal duties: Supervision of enforcement by way of advising (local and
provincial) government authorities, police and public prosecutor. Participation in monitoring and
investigation. An invaluable source of
ecological and juridical expertise and considered the foremost “partner” of the
public prosecutor in enhancing enforcement of environmental legislation.
Some
figures.
The
Netherlands have 15 million inhabitants.
In 1988
about 5000 environmental criminal files have been registered in the offices of
the Public Prosecution, i.e. about 2% of all registered criminal cases (Minor
environmental offences and traffic offences, both regarding the competence of
judge of the sub-district Court not included.
There are no precise figures about minor environmental offences
available, as registration within the Public Prosecution up to 1990 was mainly
not yet computerized).
Largest
category of criminal environmental cases concerned the Water Pollution Act (mainly
spilled waste-oil from ships and manure, spilled or deliberately discharged in
watercourses by farmers). Another
important category, rather new and ever-growing, are offences against the
Manure Act (providing restrictions on the production and the use of manure in
bio-industry).
The other
cases (Nuisance Act, Waste Act, and Chemical Waste Act) mainly pertain to
industrial plants, small and large, which need an environmental license for
their activity; there are an estimated 500,000 of such companies in The
Netherlands. Control and inspection
must still be considerably improved in this field.
Some tools
the Public Prosecution needs for intensifying enforcement of environmental
legislation.
1. Good coordination with local and regional
government.
A large
number of environmental offences requires attention from local and regional
government as well as from the Public Prosecution; especially offences
concerning illegal activities of license-bound companies. This is the field of non-compliance with restrictions
connected to the license or absence of the required license; very numerous
offences, the so called “bulk” of environmental offences. Mostly due to neglect or ignorance of the
rules.
Of course
where duties coincide good coordination is necessary. In the introduction already a few remarks have been given on this
subject.
It must be
added however that the above-described general opinion on the right application
of administrative and criminal sanctions and their mutual relationship is of an
abstract nature. It is very important
that abstract and more or less general concepts about different tasks of more
authorities in the same field be elaborated in the concrete situation of the
(category of) offences on hand and lead to well defined choices of “who does
what.”
2. Systematic supervision, inspection and
investigation
Systematic
enforcement of environmental legislation is developing in The Netherlands, but
generally the performance of the competent authorities is still rather
poor. Mostly it still depends on sheer
chance or coincidence whether an environmental offence is followed by any
action on the part of the local government or the police and the public
prosecution; of course the category of manifest and easily detectable offences
dominates in police reports on environmental crime and even then the official
reaction is often slow and inadequate.
Victims of nuisance-causing industrial activities often must battle for
years before finally some change is reached.
Supervision
and monitoring are primarily the duty of the administration (local and regional
government), combined with their appliance of administrative sanctions in case
an offence has been found. The police
can contribute with findings during their patrol. It must be said that experience in systematic enforcement
programs during the last years has taught that for a beginning prevention, i.e.
adequate monitoring, followed by good information and eventually by official
warnings to offenders prove an excellent tool for banning a large part of what
could be called the bulk of petty environmental crime.
Stubbornness
of an offender who despite being informed or warned continues to offend the law
must certainly lead to administrative sanctions. If administrative sanctions fail or simply are not imposed
criminal prosecution is considered necessary in such cases. Chance will always be a determining factor
in fighting crime. But from now on
systematic inspection and enforcement should prevail. Enforcement programs during the last years have shown encouraging
experiences. Those experiences can be
translated in criteria for success, which one for one can serve as an
indispensable tool for good enforcement, criminal enforcement included. Those criteria are summed up here. It is clear that most of them seem very
obvious. But bringing them into
practice on a large scale yet has to be done.
3. Planning.
Local and
regional government and the Public Prosecution must plan together how to handle
environmental crime. They must choose
which laws are going to be enforced against which target groups and in which
order (priority setting). They must
decide upon which sanctions will be used in which cases. They must establish what capacity
(government officers and police officers) will be deployed to implement the
enforcement program.
In
enforcement programs a series of inspection visits of administration officers
to industrial plants etc. must be exactly planned. Programs furthermore must indicate when police-interference will
be required for investigation and report.
Experience has taught that first rounds of inspection lead to detection
of an enormous number of offences in all degrees of seriousness. But information and warnings have shown much
success; the second visit already produces less offenders. An official warning from the administration
can be useful then.
Of course
detection of serious crime must immediately lead to more severe sanctions.
Result of
further visit-rounds is the so called “selection of malevolent
recidivists.” Government officials and
the Public Prosecution must decide what to do with this category. In principle they must be prosecuted and
possibly confronted as well with severe administrative sanctions (closing of
plant, repair of damage at the expense of the offender).
Since the
Public Prosecution has a responsibility of his own concerning recidivists
administration and public prosecutor must agree on participation of the police
in the program, for the sake of police-reports enabling criminal
prosecution. In The Netherlands there
is a growing opinion that police has to
participate at least in the third round of visits.
It seems
desirable that regular combined teams be formed of government officials and
police-officers.
The
enforcement program must be based on a step-by-step concept indicating on
forehand what will be done for several categories/degrees of offences that are
foreseen to appear as a result of good inspection. These programs must include a time table and a systematical evaluation.
It is
desirable that well-coordinated enforcement programs, local and regional, are
worked out, on an annual basis.
4. Negotiations/consultations.
Making
plans together of course requires good consultation. Over the whole country a real patchwork is spread of all kids of
mixed governmental-judicial committees for regular consultation in the domain
of environmental enforcement. There is
an enormous investment in time for talks, often without matching results. Often negotiations in large committees are
limited to an exchange of information, not leading to clear decisions because
not all participants dispose of the power (mandate) to decide for the
institutions/authorities they represent.
These kinds of free talks were significant in the seventies when
enforcement of environmental rules was just in the very first stage of
development and partners in enforcement still had to “find” each other.
But what is
necessary now is that all those committees be screened on their efficiency and
real output. Especially needed is a
good like between preparatory talks and the “triangle” partners (government,
public prosecutor and police) where decisions can be made. Complementary to preparatory and deciding
platforms of consultation/negotiation there is still needed a third form of
regular contact between the authorities involved, i.e. contact on
workfloor-level, the level where programs are implemented and individual cases
can be handled. This is the concrete
form of daily contact, which often is the most satisfactory.
5. Enforcement networks.
The regular
and institutionalized forms of contact and consultation as mentioned under 4
can be seen as a large part of the necessary network. But for everyday implementation of enforcement-programs those
gremia are not adequate. Therefore a
limited number of persons with key positions within local government, Regional
Inspectorate for the Environment, police and public prosecutor are necessary. They must have an overview of everyday
implementation and steer the development of the implementation. Of course, they must take care of regular
feedback to the above-mentioned gremia.
Models of networks depend on the contents of the enforcement programs
and on the range of authorities involved.
6. Inspection and investigation must go deep
and be integrated
Integrated
means in this context that inspection of plants and enterprises on compliance
with environmental legislation must include all important legislation. Experience has taught that inspection
limited to just one selected environmental law can entail negative
results: inspection in only one sector
can have for consequence that compliance in that sector improves but that at
the same time pollution is moved to another sector (from air-emissions to soil
or water-pollution and vice versa).
These integrated inspections require cooperation of all the authorities
concerned, and coordination of technical know-ho. The Regional Inspectorate for the Environment has an important
role as a technical expert.
7. Good infrastructure with the police.
Inspection
and investigation of environmental offences by the police is still too often
assigned to just one specialized officer.
Sometimes those specialists have a function as coordinator: they should extend their knowledge and
experience to other members of the police corps, stimulate their colleagues to
enforce environmental legislation and take care of contacts with external
authorities. But most police
coordinators still are soloists: they
get little support from their superiors and little response from
colleagues. Slowly this situation is
changing. Police managers have accepted
environment as a field for serious attention.
Broad support within police organizations is absolutely necessary for an
acceptable level of repression of environmental crime, petty crime as well as
very serious crime.
Serious
environmental crime.
Grievous
crime cannot be confronted on a local level alone; therefore, regional police
detective teams have been formed. Their
target must not only be “common” organized crime but also serious environmental
crime, which by the way mostly is connected with other kids of crime, f.i.
fraud.
Up to now
investigation and fight of serious environmental crime has been the special
duty of a special national investigative network of the Ministry of the
Ministry of Housing, Physical Planning and Environment (VROM): the Environmental Criminal Investigation
Support Team (MBT).
The main
task of this team is to give support to local or regional police forces,
especially in the domain of environmental expertise, information-processing and
accountancy. Practice, however, is that
this team often just is compelled to direct (and not only support) the
investigations done and sometimes even has some trouble in motivating passive
local officers into some cooperation.
Finally this situation is changing since the attitude of local police
management towards environmental jobs is improving.
Serious
crime is not limited to national boundaries of course. Good control includes cooperation with
Customs, ensuring inspection of transnational traffic.
8. Information
Enforcement
requires adequate collection and exchange of information. Computerized systems must channel
information between local government agencies, police and Public
Prosecution. In the domain where duties
converge the governmental controlling agency must inform police and the public
prosecutor on results of inspection-visits and taken actions. Police and public prosecutor must inform
government-agencies about police-reports and outcome of criminal prosecution.
The police
must have their own data-processed information system, where information and
intelligence on criminal activities is stored.
For the purpose of good investigation and privacy-aspects this information
can be passed to others (including the government-agencies) only on certain
conditions. Data-systems must enable
the police to make good crime analysis for more serious crimes.
In The
Netherlands data-processed information is yet in a stage of development.
The police
is developing regional information systems.
There is a national police service, the Central Detective Information
service, which has a small sector for environmental crime and which cooperates
with a larger system of information, set up by the Ministry for the
Environment. This is the National
Information Center for Environmental Offences, (CLIM).
The Public
Prosecution is working on a data-processed system steering administrative
proceedings but the section that is meant to produce general statistical
information, for the purpose of making policy is still some years away. A great deal of the work in the office of
the public prosecutor is still hand-processed.
An
experiment.
In the
province of Utrecht (where this workshop is being held) provincial and local
authorities, the public Prosecution and police have installed a data-processed
information system, subsidized by the Ministry for the Environment. Here exchange of information between the
partners is provided (administrative actions, police reports and criminal
procedures). This is the so called REMM
system (Dutch abbreviation for regional reporting center environmental
offences) installed in the office of the public prosecutor. Purpose of this system is not only to exchange
information but also to enable the public prosecutor to decide in which stage
of any action, taken by the government-agencies against offenders, police and
public prosecutor should participate and given support (police-investigation
and prosecution).
9. Feed-back and follow-up.
Of course
feed-back and follow-up can be seen as part of good information-exchange as
described under 9. But these tools
might need some emphasis. Feed-back
should not only include information on enforcement, i.e. the outcome of
administrative and criminal procedures, but as well include exchange of
information to partners about for example:
case-law; any experiences which can further the continuing process of
learning by doing. An example of
special problems is taking of samples and producing a reliable analysis. Feed back must not be limited to the level
of local authorities; good nationwide networks between enforcement officials
must enhance spreading of valuable expertise.
A very
important example of feed-back that deserves special attention is feed-back
between “practice and theory”, i.e. between enforcement officials and
legislators. It has been acknowledged
that many environmental regulations given problems when applied tin
practice; too often the definition of
an offence in law or other regulations impedes finding sufficient evidence or
at least demands disproportional efforts in producing enough proof. Sometimes problems can be solved just by
changing the definition of an offence; but sometimes criminal enforcement
remains so hazardous that it must be seriously considered whether a rule should
be criminally sanctioned at all and whether other instruments (administrative
rules, civil actions or even taxes or subsidizing) would not be more
appropriate tools to guide the conduct of citizens.
An example
of necessary follow-up is structural checking of compliance of the convict with
conditional sentences. Such control is
mainly absent and enforcement of not observed conditions, imposed by sentences,
is almost fully based on sheer coincidence.
10. Standardization of police-reports.
Intensified
enforcement will bring forth a lot of reports on routine cases. Standardized and computer processed police
reports can be an efficient tool for speeding up routine procedures.
11. Good sample taking and analysis.
Sample-taking
and analysis must meet standards of due process; defendants tend to contest
more and more analytic results and critical attention of judges will require
representative sample-taking and thorough analysis. It is important that well-handled and conserved contra-samples
for contra-analysis are obtainable for the defendant. Analyzing should be done more speedily; the capacity of the
laboratory of the Ministry of Justice must be considerably increased.
12. Good legislation; good license-provisions.
Laws and
license provisions must be appropriate for effective application in criminal
proceedings. See point 9.
13. Penalties must be more adequate.
Penalties
in environmental cases are generally still rather arbitrary and light. Guidelines for penalties, agreed upon within
the Public Prosecution on a national scale, have proven to be of good use; of
course they can apply only to more of less comparable routine cases. They cannot oblige any judge, but reference
to guidelines can make a requisitory more convincing to a judge, because
observance of such guidelines gives more or less a guarantee of equality in
sentencing comparable cases. Guidelines
in environmental practice are scarce and not all of them offer a satisfactory
tariff. They must be improved and
extended to more categories of offences.
When it comes to penalties special attention is needed for:
a. illegally obtained profits.
b. the damage to the environment.
These
aspects are investigated in a very big case, but this approach should be
applied to minor cases as well. Of
course it requires expert calculations, and thorough investigations in
suspects’ files. For serious crime (in
general) there are experimental “Bureaux for Financial Support”, recently set
up and specializing in investigation into illegal profits and in bringing them
to the surface, even abroad where they can be seized via rogatory
commissions. These services already
have proven to be very successful.
What is
said about developing better standards for penalties applies to out-of-court
settlements as well; public prosecutors are trying to settle for higher sums in
case of environmental crimes.
14. Newspapers and protesting citizens
These can
be important sources for a public prosecutor, especially in the still many
cases where local authorities are reticent.
15. Expertise.
Knowledge
of the instruments of environmental legislation is insufficient, not only with
the police, but sometimes also within the Public Prosecution and with judges,
who are supposed to handle environmental crime. This lack of knowledge hampers of course good investigation, good
criminal procedure and adequate punishment.
Most public prosecutors know little about administrative law and the
possibilities and range of administrative sanctions. Equally they have little insight in ecological background of environmental
legislation. Yet it is clear that only
sound knowledge and insight in juridical as well as in ecological matters can
enable the public prosecutor to bring a case to a good end and to build up a
well-motivated requisitory for adequate punishment.
16. Specialization and career continuity.
Making a
career within the public Prosecution requires a general background and
management qualities. For that reason
only few prosecutors desire to work in a specialist function for a long time. Yet this is necessary for good
environmental enforcement because it takes a rather long time to gather
sufficient experience to do a good job.
Furthermore, it is desirable that prosecutors-environmentalists do not
change jobs too often, because this implies that gradually built-up relations
with government officials and experts will be broken up and have to be renewed
by successors. Government authorities
complain that the public Prosecution be no “faithful” organization because of
the frequent change of public prosecutors they have to deal with and because of
differences in style and opinions between succeeding prosecutors.
Something
must be done to make a long period of specialization in environmental law
attractive, for instance by increased salaries for specialists.
With the
police as well there must be created attractive prospects for specialists.
17. Annual programs of the Public Prosecution.
It seems
desirable that public prosecutors make annual programs for their activities in
the field of environment. Such programs
should not only include enforcement programs (as described under 3) but also
items like building up a good network of consultation with government
authorities, police-infrastructure, information-networks and data-processing,
speeding up criminal procedures, etc.
18. Money and time.
The Public
Prosecution is – or was until recent times – permanently understaffed. Norms for staffing were not adjusted to the
special requirements of environmental cases which very often demand intensive
work for a longer period and which imply relatively much time for consultations
with police, the Inspectorate for the environment and local government
officials. Most public prosecutors just
spend a very little part of their time on environmental cases; they have many
other duties, often requiring priority.
As the
pollution of our environment requires intensified enforcement, one begins to
realize finally that handling environmental cases must be a full time job
within the public Prosecution.
The
government has taken steps to strengthen the police and the public
Prosecution. It is preferable that a
special budget is allocated for enforcement, to be attributed to concrete
programs.