TACKLING ENVIRONMENTAL CRIME IN THE EUROPEAN UNION:
THE CASE OF THE MISSING VICTIM?
CARDWELL, PAUL JAMES1 and FRENCH, DUNCAN2 and HALL, MATTHEW3
1
Senior Lecturer in European Union Law and Deputy Director, Sheffield Centre for
International and European Law, School of Law, Bartolomé House, Winter Street, University
of Sheffield, S3 7ND, United Kingdom, p.cardwell@sheffield.ac.uk.
2
Professor of International Law and Director, Sheffield Centre for International and
European Law, University of Sheffield School of Law (address as above),
d.french@sheffield.ac.uk.
3
Lecturer and Director, MA Programme in International Criminology, University of
Sheffield, School of Law (address as above), m.p.hall@sheffield.ac.uk.
SUMMARY
In 2008, the EU adopted Directive 2008/99/EC on the protection of the environment
through the criminal law, to be implemented in Member States by December 2010. Though
the enforcement of environmental legislation by means of the criminal law is by no means
novel, it has often played a secondary role to administrative sanctions and civil penalties.
This Directive is thus perhaps indicative of a hardening of attitudes over breaches of
environmental law. Nevertheless, this paper considers the extent to which the response so far
to environmental crime (including, but not limited to the new EU Directive) has neglected the
impact of such crime on the victims of that crime. The study of victims has become a key
element in modern-day criminology, seeking to ensure broad acknowledgement for, and
respect of, the rights of victims. But in the case of environmental crime, there remains a
noticeable gap. Though there are undoubtedly procedural difficulties in involving
environmental victims in the criminal justice system, these are not insurmountable. Indeed
there are a number of positive examples of where this is beginning to occur. Beyond the
substantive comments expressed, the paper is also significant in that it brings together
doctrinal legal scholarship and theoretical criminology to address themes that have existed in
parallel but have rarely been considered synergistically.
1
INTRODUCTION
Environmental crime can be broadly defined as including both crimes that ‘result
directly from the destruction and degradation of the earth’s resources’ and those that ‘aris[e]
out of the flouting of rules that seek to regulate environmental disasters’.1 Moreover, whilst
many instances of such crime can be purely local in remit and consequence, environmental
crime is equally one of the most lucrative forms of transboundary criminal activity.2 Over the
last decade, national, regional and global organisations have begun to take environmental
crime more seriously. In this regard, the European Union (EU) has sought to bring forward
measures that utilise its increased competence in matters of both environmental protection
and criminal justice. In 2008, the EU adopted Directive 2008/99/EC on the protection of the
environment through the criminal law,3 to be implemented in Member States by December
2010.
This paper considers the extent to which the response so far to environmental crime
(including, but not limited to the new EU Directive) has neglected the impact of such crime
on the victims of that crime. For the purposes of this paper ‘victim’ in this context is
generally taken to mean individual (human) persons adversely affected by environmental
1
crime. In some instances, such victims can be identified through or be represented by public
interest groups or non-governmental organisations. It is equally acknowledged that such an
anthropocentric approach ignores the complex relationship between humans, animals and the
biosphere together with wider notions of ecological justice.4 The study of victims has become
a key element in modern-day criminology, seeking to ensure broad acknowledgement for,
and respect of, the rights of victims. But in the case of environmental crime, there is a notable
silence in this regard. As a report by the Royal Institute of International Affairs in 2002
noted, ‘society as a whole is often unaware of its [environmental] victimization, so regulators
may not set levels of enforcement effort and restitution properly’.5 This state of affairs in
relation to environmental crime is somewhat ironic given the wealth of victimological
literature indicating that, in most other areas of social activity, the self-identification of
individuals, groups and society as a whole as having been ‘vicitmised’ is, in fact, on the
increase.6
The purpose of this paper therefore is to analyse the place of the victim in
environmental crime, with particular reference to the implementation of the new EU
Directive. To support this analysis, the study will consider recent developments in victims’
rights legislation and practice in Europe and in the United States where legislation such as the
2004 Crime Victims’ Rights Act7 has been proactively used by environmental victims to
discern future trends.
The significance of the paper is that it brings together doctrinal legal scholarship,
empirical research and theoretical criminology to address themes that have existed in parallel
but have rarely been considered synergistically. The paper concludes with the identification
of future research priorities, which almost certainly will involve analysis of instances of both
legislative innovation and political reticence. But of greater significance will be the attempt to
establish a more principled understanding as to how the now-established work on victims’
rights might be of assistance in this equally important area of environmental protection.
2
EUROPEAN
UNION
GOVERNANCE
IN
THE
FIELDS
OF
ENVIRONMENTAL PROTECTION AND CRIMINAL JUSTICE
Although often perceived outside Europe as a mainly trade-related organisation
facilitating economic movements between the now twenty-seven Member States, the EU has,
in fact, long-since had a great impact on environmental law and policy across the continent.8
The original 1957 Treaty of Rome, which established the (then) European Economic
Community (EEC) contained no specific provisions on environmental protection. However, it
was inevitable that with the global emergence of environmental consciousness, the EEC
would begin to recognise the importance of environmental issues. In fact, the 1987 Single
European Act was the first treaty to give a legal basis to the protection of the environment as
an explicit competence within the EU.
Though there had been no specific Treaty articles under which legal measures to
protect the environment could be taken, provisions relating to the establishment of the single
market and industrial harmonisation were used to address environmental concerns, for
example concerning waste oils and the quality of surface and bathing waters. 9 From 1973
onwards the process of European integration incorporated the need for greater coordinated
activity via successive Environmental Action Programmes, which served as the principal
guidelines for legislative action.10 Since the Single European Act, the commitment to
protecting the environment has been strengthened in every major Treaty revision since.
The 1992 Treaty on European Union was especially important insofar as it included
an express reference to the precautionary principle and the objective of ‘aim[ing] at a high
level of protection’ of the environment within its scope.11 More controversially, it also
included ‘sustainable growth’ as a fundamental principle of the EU, though this was criticised
2
for being more ambiguous than the more recognised concept of ‘sustainable development’ as
defined by the World Commission on Environment and Development.12 The 1998 Treaty of
Amsterdam provided some clarity by changing (the then) article 2 so as to set as objectives
to:
promote throughout the Community a harmonious, balanced and sustainable
development of economic activities, and sustainable and non-inflationary growth…a
high level of protection and improvement of the quality of the environment.13
A further treaty article reinforced this by stating that:
Environmental protection requirements must be integrated into the definition and
implementation of the Community policies and activities in particular with a view to
promoting sustainable development.14
The protection of the environment – and sustainable development – continues to take
pride of place in the Treaty following the revisions brought about by the 2007 Treaty of
Lisbon, underlining its status at the heart of the legal and political principles of the EU, both
domestically and globally.15
Secondary European law, through the adoption of regulations and directives, has been
used to give substantive effect to the Treaty competence on environmental protection. As the
hallmarks of EU governance, regulations and directives are legal instruments which, though
created at the supranational level through a complex institutional process, take effect at the
national level.16 In particular, they have been used to harmonise standards and create the
regulatory framework for environmental protection in the EU, as well as permitting
individual enforcement of their provisions at the domestic level in certain instances.17 There
are more than 200 regulations and directives explicitly concerning the environment in force
in the EU, concerning, inter alia, the pollution of water and the air, waste management,
biotechnology, nature conservation and nuclear safety. Other issues dealt with under EU law
include access to environmental information, liability for environmental harm caused and the
establishment of a European Environment Agency, based in Copenhagen, Denmark.18
Domestic environmental law has thus been profoundly affected by the environmental law of
the EU; for instance, up to 80% of the environmental legislation in force in the UK it has
been estimated has been due to membership of the EU.19 An even greater impact has been felt
by the most recent members in Central and Eastern Europe who joined in 2004 and 2007 and
were obliged, as part of the enlargement process, to integrate all existing laws and policies in
their domestic legal systems – and ensure that compliance and enforcement was up to the
standards expected by the EU.20
The protection of the environment can therefore rightly be seen as one of the most
extensive areas of legislative activity within the EU over the past twenty years. Directive
2008/99/EC on the use of criminal law to enforce environmental law, discussed below, is thus
a continuation of this process. However, significantly, it also sits at the meeting point of
environmental protection and criminal law. Unlike environmental law, the criminal justice
systems of the Member States have largely been immune from the European integration
process. Criminal justice is one of a number of areas – notably employment policy, health
and social welfare and foreign policy – where Member State reticence to grant the Union
competence to act can be most keenly felt. Nevertheless, the gradual completion of the single
market and removal of physical frontiers has provided an impetus for closer cooperation
between the Member States at the EU level. Since 1992, when justice and home affairs
became an integral part of the European project, measures have been created which aim to
3
guarantee certain rights and minimum standards across the EU. However, these measures
have not enjoyed the same legal status as regulations and directives commonplace in other
areas, including environmental protection. Rather, through the use of so-called ‘framework
decisions’, a much higher degree of discretion is reserved to the Member States and the EU
institutions have a lower level of competence to propose amendments.
A body of law which can be seen as ‘European criminal law’ has become increasingly
apparent;21 and it is widely accepted that cooperation on areas previously outside the scope of
EU competence (which would also include migration law and policy, alongside criminal
justice) is now one of the most dynamic areas of EU policy-making. Significantly, within
this, the place of the victim within the criminal justice system has found – admittedly limited
– expression and the Court of Justice of the EU has recently had the opportunity to interpret
the meaning of ‘victim’ which may, overtime, contribute to emerging, and contradictory
national interpretations.22 It is therefore at this intersection of legislative competences
(environmental protection and criminal justice), regulatory measures (regulations/directives
and framework decisions) and the slowly emerging recognition of the victim in EU policy
that this paper seeks to position itself.
3
DIRECTIVE 2008/99/EC ON PROTECTION OF THE ENVIRONMENT
THROUGH CRIMINAL LAW
Though the principal focus of this paper is upon the 2008 Directive and, more
significantly, what we believe it is lacking – a connection with the rights of victims – it
should be acknowledged that the Directive cannot be considered alone but in the broader
context of other attempts to use the criminal law to ensure more effective enforcement of
environmental law. Of course, using the criminal law to enforce environmental provisions has
not been the traditional method of many States, which have been keen, in many instances, to
redress environmental harm through the imposition of administrative sanctions.23
Nevertheless, the use of criminal law as a component of a broader strategy is generally
recognised. Key amongst the international initiatives in this regard is the 1998 Council of
Europe Convention on the Protection of Environment through Criminal Law. 24 Though this
treaty has not yet entered into force, and has indeed secured little State support for it so far –
just 14 signatures and only 1 ratification out of over forty possible States – it is significant
both as the precursor to the adoption of the Directive within the European Union.
The 2008 Directive is, in some ways, a more modest document, though its impact is
likely to be more keenly felt. Moreover, as the European Court of Justice noted in 2005 in
judicial proceedings brought over the correct legislative base for the Directive, criminal law
has a clear role to play in environmental matters:
As a general rule, neither criminal law nor the rules of criminal procedure fall within
the Community’s competence…the last-mentioned finding does not prevent the
Community legislature, when the application of effective, proportionate and dissuasive
criminal penalties by the competent national authorities is an essential measure for
combating serious environmental offences, from taking measures which relate to the
criminal law of the Member States which it considers necessary in order to ensure that
the rules which it lays down on environmental protection are fully effective.25
The Directive requires Member States to ‘criminalise’ certain defined breaches of
EU environmental law. Previously, Member States had the sole responsibility to determine
the appropriate sanction. As studies for the European Commission on this issue make clear,
there was high variability in the both the nature (criminal, civil and administrative) and
severity of penalties and sanctions imposed.26 The range of acts which now require the
4
imposition of criminal law include, inter alia, (i) instances of pollution, the generation,
disposal and other activities related to hazardous waste, nuclear materials and radioactive
waste and the operation of a plant in which a dangerous activity is carried out, but in all cases
only where they ‘cause[…] or [are] likely to cause death or serious injury to any person or
substantial damage to the quality of air, the quality of soil or the quality of water, or to
animals or plants’; (ii) the illegal shipment of hazardous waste; (iii) the destruction of wild
fauna and flora and habitat; (iv) trading in protected specimens of wild fauna and flora or
parts or derivates thereof; and (v) the various production, transit and marketing stages
involving the sale of ozone-depleting substances.27
Significantly, committing these acts does not per se make them criminal unless they
are also ‘unlawful and committed intentionally or with at least serious negligence’. The
reference to ‘unlawful’ would seem to be tautologous in this context though it is, in fact, a
reference to the requirement that there must be a defined breach of EU environmental law,
rather than an attempt to establish new standards of conduct. As the Directive states, what is
required is the infringement of ‘the legislation adopted pursuant to the EC Treaty and listed in
Annex A…[or] a law, an administrative regulation of a Member State or a decision taken by
a competent authority of a Member State that gives effect to the Community legislation’. 28
Annex A then goes on to list a plethora of EU directives and regulations stretching as far
back in time as 1970 (adopted at the time on the basis of approximation of national laws for
the benefit of the internal market). It is this connection to, and attempt to make more
effective, pre-existing law that has permitted the adoption of this Directive, as noted by the
European Court of Justice above.
In terms of the subjective requirement (‘committed intentionally or with at least
serious negligence’), this wording reflects a more nuanced debate not just about how far
environmental offences should be crimes of strict liability – which would seem to be largely
ruled out by the requirement of, at least, negligence – but also to reconcile the criminal law
regimes of so many different Member States. Similar ambiguity can also been seen – and
most likely for very similar reasons – in the wording on the level of penalty to be imposed.
As regards both natural and legal persons, criminal offences are to be ‘punishable by
effective, proportionate and dissuasive penalties’, with the important insertion of the notion
of ‘criminal penalties’ in the case of natural persons. Again, to ensure broad acceptance
across the EU, the notion of imposing criminal – in contrast to – administrative sanctions
against legal persons was perhaps too difficult to implement and/or conceptualise in some
Member States.29 Moreover, and perhaps more worryingly if the aim is increased
consistency, the notion of ‘effective, proportionate and dissuasive’ not only seems to have an
in-built (though not insurmountable) tension constructed within it (penalties are to be both
‘effective’ and ‘dissuasive’ but also ‘proportionate’), but it opens up the likelihood of
significant diversity between Member States. To some extent the final outcome of the
Directive is unfortunate and very much the result of a judgment of the European Court of
Justice in 2007, in which it stated that ‘the determination of the type and level of the criminal
penalties to be applied does not fall within the Community’s sphere of competence’.30
Indeed, the final Directive is a pale reflection of previous draft versions, which were
much more prescriptive in the levels of criminal penalty to apply. Of particular interest was
draft article 5, paragraph 5:
The criminal sanctions provided for in this article may be accompanied by other
sanctions or measures, in particular:
(a) the disqualification of a natural person from engaging in an activity requiring
official authorization or approval, or founding, managing or directing a company or a
5
foundation, where the facts having led to his conviction show a high risk that the same
kind of criminal activity may be pursued again;
(b) the publication of the judicial decision relating to the conviction or any sanctions or
measures applied;
(c) the obligation to reinstate the environment.
Though the exclusion of this draft article does not now prevent Member States
incorporating such ideas within their own domestic law at the time of implementation (with
some Member States already likely to include such provisions) its absence is likely to ensure
less uniformity on such matters ancillary to the principal penalty. Significantly, this is as
close as the Directive ever came, it would appear, to addressing the interests of victims.
On the other hand, the 2004 EU Environmental Liability Directive31 – which must
to some degree be considered the ‘sister’ directive to the 2008 Directive in this regard
premised as it is upon the administrative, rather than criminal, liability of operators – includes
a key role for those affected by environmental harm. As article 12 (entitled ‘request for
action’) and article 13 (‘review procedures’) of that Directive state:
Article 12
1. Natural or legal persons:
(a) affected or likely to be affected by environmental damage or
(b) having a sufficient interest in environmental decision making relating to the damage
or, alternatively,
(c) alleging the impairment of a right, where administrative procedural law of a
Member State requires this as a precondition,
shall be entitled to submit to the competent authority any observations relating to
instances of environmental damage or an imminent threat of such damage of which
they are aware and shall be entitled to request the competent authority to take action
under this Directive.
What constitutes a "sufficient interest" and "impairment of a right" shall be determined
by the Member States.
To this end, the interest of any non-governmental organisation promoting
environmental protection and meeting any requirements under national law shall be
deemed sufficient for the purpose of subparagraph (b). Such organisations shall also be
deemed to have rights capable of being impaired for the purpose of subparagraph (c).
…
Article 13
1. The persons referred to in Article 12(1) shall have access to a court or other
independent and impartial public body competent to review the procedural and
substantive legality of the decisions, acts or failure to act of the competent authority
under this Directive.
6
However, though significant and reflective of broader developments in international
environmental citizenship,32 similar ideas remain noticeably absent from many of the other
(usually older) international and domestic provisions on civil and administrative liability for
environmental harm. And though the specific provisions of the Environmental Liability
Directive can perhaps be seen to be more readily influenced by – in a weaker form – article
18 of the earlier 1993 Council of Europe (‘Lugano’) Convention on Civil Liability for
Damage Resulting from Activities Dangerous to the Environment,33 this 1993 Convention is
itself not in force and is considered aspirational in many respects, including on matters of
participation. Nevertheless, in the 2006 Draft Principles of Allocation of Loss in the Case of
Transboundary Harm, the International Law Commission (which drew them) positively
remarked in its studied commentary on the present situation that ‘[t]he definition of victim is
thus linked to the question of standing’,34 going on to outline various instances in domestic
and regional law (including those examples mentioned above) where affected individuals and
NGOs have been given the right to seek legal redress for environmental harm.
Much more importantly for the purposes of this paper, the 1998 Council of Europe
Convention contains, at article 11, a not dissimilar provision – though obviously of increased
pertinence due to that Treaty’s focus on criminal law enforcement. It reads:
Each Party may, at any time, in a declaration addressed to the Secretary General of the
Council of Europe, declare that it will, in accordance with domestic law, grant any
group, foundation or association which, according to its statutes, aims at the protection
of the environment, the right to participate in criminal proceedings concerning offences
established in accordance with this Convention.
This has the potential to be a ground-breaking article, raising the very real possibility of
opening up environmental criminal proceedings to wider participation, recognising however
that the ‘right to participate’ covers a breadth of possibilities, ranging from the nominal to the
much more substantive. Edwards, for instance, has labelled participation as ‘a comfortably
pleasing platitude’,35 which is rhetorically powerful but conceptually abstract. In his
discussion, Edwards describes four possible forms of victim participation in criminal justice.
The most significant casts victims in the role of decision-makers, such that their preferences
are sought and applied by the criminal justice system. Less far-reaching would be
consultative participation, where the system seeks out victims’ preferences and takes them
into account when making decisions. Edwards sees the traditional role of victims in terms of
information provision, where victims are obliged to provide information required by the
system. Finally, under expressive participation, victims express whatever information they
wish, but with no instrumental impact; here Edwards highlights the danger of victims
wrongly believing their participation will actually affect decision-making.
A common distinction drawn in these debates is that between ‘service rights’ and
‘procedural rights’. For Ashworth, victim participation should not be allowed to stray beyond
service rights into areas of public interest.36 Ashworth is particularly concerned by victims
being afforded the right to influence sentencing (and other decision-making within the
process) citing the difficulties of testing victims’ claims and taking account of unforeseen
effects on victims. The more limited service rights Ashworth has in mind include respectful
and sympathetic treatment, support, information, court facilities and compensation from the
offender or state, but exclude consultative participation.37
Interestingly, article 11 of the 1998 Convention is carefully worded to remove any
sense of the individual victim. Nevertheless, its inclusion is an important indication of
changing attitudes. No longer is the State viewed as the sole trustee of the public good. As the
7
explanatory report to the Convention notes, ‘[t]he main reason for allowing NGOs access to
environmental proceedings is that criminal law in the environmental field protects interests of
a highly collective nature, in view of the fact that the various forms of pollution potentially
affect the interest not only of single individuals, but also of groups of persons’.38 And whilst
some States have already implemented such a right, many others have not. As the explanatory
report continues, because of this variability, ‘as mandatory provisions were found
inappropriate, the Committee drafted the Article in a facultative form’. 39 Nevertheless, as a
model of progressive development, it ties into many contemporary trends. As the ILC
Commentary on allocation of loss had cause to note, ‘In France, some environmental
associations have been given the right to claim compensation in criminal cases involving
violation of certain environmental statutes’.40
That the 2008 Directive does not contain similar language – even in such
permissive form – is both unfortunate and somewhat surprising, given the previous
willingness to follow the Council of Europe’s lead in the 2004 Environmental Liability
Directive. Though the interest in victim’s rights is only gradually emerging, it has always
been the case that environmental law has been at the vanguard of forwarding the procedural
rights of citizens. In light of the existence of article 11, we wonder whether it would have
only been an incremental step and, in light of the 1998 Convention, not an especially radical
one towards embracing the rights of environmental victims. It may very well be, of course,
that the inclusion of a ‘right to participate’ provision was considered beyond the
environmental competence, in a similar way that being prescriptive about penalties was also
going too far. If this were indeed the case, it is to be hoped that promised EU legislation on
victims’ rights might be sufficiently broader to remedy this defect. This, however, will
depend whether its exclusion went beyond the issue of competence and reflected a broader
antagonism towards granting victims a ‘voice’ in such proceedings.
Of course, as with all EU directives, it must be implemented – or in the language of
the EU, ‘transposed’ – within the domestic law of the Member States, usually within two
years from its adoption, and thus in this case by the end of December 2010. Only then will it
be possible to even begin considering how Member States have interpreted the Directive. It
will then be a substantial time after that before one will be able to assess its practical
significance as relied upon by national prosecution services and courts. Undoubtedly, the
hope is that the Directive will strengthen the enforcement of environmental law through
punitive measures and the moral blame that invariably comes with that. Nevertheless, in light
of developments elsewhere on the role of victims in criminal law, the paper now considers
how far this Directive has missed an opportunity to establish a bolder approach to
environmental protection.
4
CRIMINAL LAW AND THE ENVIRONMENT: THE MISSING VICTIM?
It is our contention that, given the widespread development of victims’ rights in other
areas of criminal law coupled with the pervasive and long-lasting impacts of environmental
crimes (and indeed what might be referred as ‘quasi-crimes’41) on individuals, it is becoming
increasingly difficult to legitimately exclude such victims from the ambit of instruments, such
as the 2008 Directive. It has been noted above that the International Law Commission in its
2006 Draft Principles of Allocation of Loss has drawn links between the definition of the
‘victim’ and the notion of legal standing. Legal standing is in fact at the heart of most of the
debates concerning victims’ rights because, in recent history, victims have lacked party status
in most domestic criminal justice systems, both in Europe and elsewhere. As a consequence
of this legal reality, it is the State which acquires the rights of individual victims, effectively
forcing those affected by crimes and other social misfortunes to take a subsidiary role in
proceedings. This was famously captured by Christie who argued that the State effectively
8
‘steals’ conflicts from their rightful owners, namely the victim and the accused. 42 This
traditional argument is given fresh impetus by the issue of environmental crimes, where the
victims include not only individuals and their physical or emotional health, but the social,
cultural and economic life of entire communities.
Nevertheless, the rights of victims have increasingly secured global recognition.
The United Nations General Assembly, for instance, adopted the 1985 UN Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of Power, which has remained the
most wide-ranging and influential document on the issue of victims’ rights at the
international level. The declaration speaks of victims being afforded access to justice, fair
treatment and of compassion and respect for the dignity of victims. 43 The instrument also
makes reference to victims being informed about their role and about the scope, timing, and
progress of proceedings, as well as the disposal of their case.44 The Declaration further
maintains that victims should be guaranteed assistance from the criminal justice system
(including information that such assistance is available),45 as well as formal and/or informal
procedures providing them with redress, restitution and compensation for wrongs suffered.46
The document also has provisions protecting victims from unnecessary delay or
inconvenience within the criminal justice system47 and ensuring their concerns are
considered. Perhaps most significant for the present paper is its definition of ‘victims of
abuse of power’:
"Victims" means persons who, individually or collectively, have suffered harm,
including physical or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights, through acts or omissions that do not yet
constitute violations of national criminal laws but of internationally recognized norms
relating to human rights.
It will be noted that this definition expressly includes activities which are not ‘illegal’ in the
strict sense: thus encompassing the grey legal areas in which environmental destructive
activities sometimes fall. Williams has argued that the definition of such victims utilised by
the 1985 Declaration can serve as a useful starting point for ascribing rights to environmental
victims.
Despite being a ‘soft law’ text, the 1985 Declaration has been highly influential in
many domestic jurisdictions. In the United States, for instance, the principles put forward by
the 1985 Declaration are reflected (and indeed expanded upon) at the federal level in the
Crime Victims’ Rights Act of 2004.48 Heralded as a major breakthrough by proponents as a
more judiciable form of victims’ rights,49 the Act introduces the concept of victims’ rights
into the US penal code for the first time. The Act restates standard service rights of
information protection and compensation, as well as a procedural right for victims ‘to be
reasonably heard at any public proceeding in the district court involving release, plea,
sentencing, or any parole proceeding’.50 The most significant feature of the legislation,
however, is the enforcement mechanisms it creates. Here, individuals or the federal
government may assert victims’ rights at the district court level. If the victim or the
government are still not satisfied with the enforcement of these rights they may file a petition
with the Court of Appeals for a writ of mandamus. A court's decision to deny any of these
rights may be asserted as an error by the prosecution in the case. Even more significantly, in
limited circumstances a victim may move for a new trial on the basis of the denial of their
rights.51
The Crime Victims’ Rights Act does not apply to the states, as it is not an
amendment to the Bill of Rights or the US constitution. Nevertheless, the Act was
incorporated into the Federal Rules of Criminal procedures, which is followed by all judges
9
in federal criminal cases, in April 2008. The Act does not give victims the right to sue the
federal government for breach of their rights, but remains the most robust system of right
enforcement for victims seen in any jurisdiction. That said, the question of enforcement of
victims’ rights in the United States is far from settled. At the state level, enforcement
mechanisms still tend to be rather vague and ultimately non-compulsive. At the national
level, Human Rights Watch has concluded in a review of the development of victims’ rights
in the United States that there was still much to do in this regard:
More attention needs to be paid to enforcing the victims' rights laws that already exist
so that violations of victims' rights are prevented and, when violations occur, victims
have a remedy.52
As is the case the with 1985 Declaration, the US Crime Victims’ Rights Act has been applied
to victims of environmental harm; in this case in practice as well as in theory. 53 Of particular
note is the case of W.R Grace & Co., in which the named company was prosecuted under
environmental legislation for ‘knowingly endangering’ the residents of Libby, Montana., by
exposing them to asbestos through mining activities. The federal judge in the case ruled that
34 prospective victims of these activities (local residents) did not fall under the definition of
victim within the Crime Victims’ Rights Act54 and as such excluded them form the trial
proceedings. In re Parker; U.S. v. U.S. District Court and W.R. Grace & Co., Nos. 09-70529,
09-70533 (9th Cir.), the United States Ninth Circuit Court of Appeals reversed this decision,
thus confirming that prospective victims of environmental harm are indeed included within
the ambit of rights provided under the 2004 Act. The case is interesting not only for the
specific result, but as a demonstration of the breadth of the term ‘victim’ and gives weight to
the contention that it includes (or should include) environmental crimes even where there is
no specific mention of this category of harms within the legal instrument.
In Europe, where the UK and the Netherlands have traditionally driven much of the
academic and policy discussion on crime victims, the 2001 EU Council Framework Decision
on the Standing of Victims in Criminal Proceedings55 now requires all EU states to afford
victims basic levels of services and support. The Framework Decision has spurred a revival
of ‘rights’ language (and associated non-governmental pressure) associated with victims
across Europe building upon the various recommendations previously made by the Council of
Europe on this matter.56 The Framework Decision makes similar guarantees to victims as the
UN Declaration, including respect and recognition by criminal justice actors, the right to
protection from intimidation and the provision of mediation schemes. The Framework
Decision also refers to victims having a ‘real and appropriate role in its criminal legal
system’.57 Nevertheless, the Framework Decision is somewhat more limited in approach than
either the US approach or that envisioned by the UN Declaration of 1985. In particular, the
Framework Decisions restricts the definition of victims to:
a natural person who has suffered harm, including physical or mental injury, emotional
suffering or economic loss, directly caused by acts or omissions that are in violation of
the criminal law of a Member State58
The body of case law at the European Court of Justice regarding the 2001 EU
Framework Decision is steadily growing.59 Whilst these cases do not as yet touch upon the
issue of environmental victims they do demonstrate the growing significance of the victim
question overall for the European Court of Justice. The 2001 Framework Decision is the most
important of a collection of measures developed by the EU since 1999 designed to meet goals
10
of supporting and protecting victims which were set out in the Tampere Conclusions on the
creation of an area of freedom, security and justice in the European Union in 1999:
[M]inimum standards should be drawn up on the protection of the victims of crime, in
particular on crime victims’ access to justice and on their rights to compensation for
damages, including legal costs. In addition, national programmes should be set up to
finance measures, public and non-governmental, for assistance to and protection of
victims.60
This was eventually replaced on the EU policy agenda by the 2009 Stockholm Programme,
which complemented the entry into force of the Treaty of Lisbon and furthered the impetus
for measures in the rapidly evolving area of justice and home affairs. Victims are mentioned
in the following terms:
The European Council invites the Commission to put forward proposals in line with
what is set out in the Council conclusions on a strategy to ensure fulfilment of the rights
of and improve support for persons who fall victim to crime61.
One imminent result of this is the upcoming replacement of the 2001 Framework Decision
with the first EU Directive on victims of crime, expected in 2012. Such a directive gives the
EU the opportunity to strengthen the needs of victims, and in light of the increasing
connections between this and environmental protection, it is to be wondered again whether
and how far the right to participate will be drawn either in the text of the legislation or
through practice, as with the US Crime Victims’ Rights Act.
5
CONCLUSION: A FUTURE RESEARCH AGENDA
The purpose of this paper has been to consider the role of criminal law in the
enforcement of environmental law and to acknowledge that the increased recognition of its
utility is something to be generally welcomed. To that extent the 2008 Directive is a step
forward. Nonetheless, by failing to incorporate the rights of victims within this progressive
development, the Directive has missed an important opportunity. This is especially noticeable
not only because victims of crime are gradually being supported by the criminal justice
process more generally but also, as recent developments in environmental law itself have
shown, citizen participation is now considered an essential element for effective regulation. It
thus seems regrettable that when these two lines of enquiry intersected within the EU – in the
2008 Directive – the opportunity to advance this mutual agenda was neglected. Such an
outcome was not inevitable. As both the 1998 Council of Europe Convention and the US
Crime Victims’ Rights Act demonstrate, it is wholly appropriate to combine environmental
crime with allowing victims to participate in the criminal justice process. It is to be hoped
that the EU will take the opportunity to remedy this deficiency in due course, possibly with
the likely adoption of a new Directive on victims’ rights in 2012. That is, however, only the
beginning of the discussion; one then moves to consider just who is a victim within this
context, what (procedural) rights they should have and how to give best effect to them.
This paper is also significant, we believe, because of its interdisciplinarity, bringing
together doctrinal legal scholarship and theoretical criminology to address themes that have
existed in parallel but have rarely been considered synergistically. Such an approach – which
should also incorporate empirical studies – seems to us to be the most obvious way forward
when thinking about this issue. Such research would hopefully not only reveal instances of
legislative innovation – though equally likely to show examples of political reticence – but of
greater significance, it will allow us to attempt to develop a more principled understanding as
11
to how we might think about, and bring together, these two welfarist agendas of victims’
rights and environmental protection, for the benefit of both.
6
REFERENCES
1
White, R., Crimes Against Nature: Environmental criminology and ecological justice.
Willan Publishing. 2008, p.88.
2
Ibid, p.90.
3
OJ L 328/28 (6.12.2008).
4
See Birnie, P., Boyle, A. and Redgwell, C., International Law and the Environment.
Oxford. 2009. 3rd edn, pp.281: ‘the addition to the[… traditional regulatory] processes of a
specifically human-rights argument could be seen as complementary to this wider protection
of the biosphere…But such a balancing process will not work effectively if human claims are
extracted from these broader environmental concerns and elevated to a separate or prior
status as ‘rights’’.
5
Hayman, G. and Brack, D., International Environmental Crime: The Nature and Control of
Environmental Black Markets. Royal Institute of International Affairs. 2002, p.6.
6
Furedi, F., A New Britain – A Nation of Victims. 1998. Society, 35, pp.80-84.
7
18 U.S.C. § 3771.
8
See generally, Kramer, L., EC Environmental Law. Sweet & Maxwell. 2006. 6th rev edn.
9
See, inter alia, Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste
oils; Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of
surface water intended for the abstraction of drinking water in the Member States; and
Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water,
10
For detailed information on the work of the European Union, especially the Commission,
in the field of environmental protection, see http://ec.europa.eu/environment/index_en.htm
(last accessed: January 2011).
11
This provision is now found within article 3 (3) of the consolidated Treaty on European
Union (TEU).
12
World Commission on Environment and Development. Our Common Future. Oxford.
1987.
13
This provision is now to be found as article 3 TEU.
14
Now article 11 of the consolidated Treaty on the Functioning of the European Union
(TFEU).
15
As article 3(5) of the consolidated Treaty on European Union now states: ‘In its relations
with the wider world, the Union shall uphold and promote its values and interests and
contribute to the protection of its citizens. It shall contribute to peace, security, the
sustainable development of the Earth’.
16
Whereas regulations take effect automatically within the national legal systems of the
Member States, directives ‘shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national authorities the choice of
form and methods’ (article 288 TFEU).
17
This is the doctrine of direct effect stemming from the judgment of the European Court of
Justice in Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]
ECR 1.
18
Council Regulation (EEC) No 1210/90 of 7 May 1990 on the establishment of the
European Environment Agency and the European Environment Information and Observation
Network.
19
Wolf, S. and Stanley, N. (2010, 5th ed) Wolf and Stanley on Environmental Law. Cavendish
Publishing, 5th edition, 2010, p.69.
12
20
See Albi, A, Kellermann, A., Czuczai, J., Blockmans, S. and Douma, W. (eds) The Impact
of EU Accession on the Legal Orders of New Member States and (Pre-) Candidate Countries:
Hopes and Fears. Asser Press. 2006.
21
See, for example. Mitsilegas, V., EU Criminal Law. Hart Publishing. 2009 and Fletcher,
M; Loof, R and Gilmore, B. (eds) EU Criminal Law and Justice. Edward Elgar. 2008.
22
Judgment of 21 October 2010 in Case C-205/09 Criminal Proceedings against Emil
Eredics.
23
Holder, J. and Lee, M., Environmental Protection, Law and Policy. Cambridge. 2007. 2nd
edn, p.382: ‘Enforcement of environmental law in the UK relies heavily on the existence of
criminal law, but criminal law is rarely the first resort of regulators; negotiation is usually the
starting point, and administrative rather than criminal sanctions have real attractions’.
24
ETS No. 172. For the avoidance of doubt, the Council of Europe is a separate entity to the
European Union (on which, see (last accessed: January 2011)).
25
Judgment of 13 September 2005 in Case C-176/03: Commission of the European
Communities v Council of the European Union (Case C-176/03), paras. 47-48.
26
See Report for the EU Commission by Huglo Lepage & Partners, Study on Environmental
Crime in the 27 Member States, 2007 accessible at:
http://ec.europa.eu/environment/legal/crime/pdf/report_environmental_crime.pdf (last
accessed: January 2011).
27
Article 3 2008 EU Directive.
28
Article 2 2008 EU Directive.
29
See the 2007 report, above n26, p.15: ‘Austria does not provide for criminal sanctions.
Under administrative penal law, a pecuniary fine may be imposed on the responsible
representative appointed by the corporate body’.
30
Case C-440/05 Commission of the European Communities v European Parliament (23
October 2007), para. 70.
31
Directive 2004/35/EC OJ L 143/56 (30.4.2004).
32
Perhaps best encapsulated by the 1998 Aarhus Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental Matters (38
ILM (1999) 517), which itself grants standing to non-governmental environmental
organizations in certain instances.
33
ETS No. 150. Article 18: ‘Any association or foundation which according to its statutes
aims at the protection of the environment and which complies with any further conditions of
internal law of the Party where the request is submitted may, at any time, request:
a. the prohibition of a dangerous activity which is unlawful and poses a grave
threat of damage to the environment;
b. that the operator be ordered to take measures to prevent an incident or
damage;
c. that the operator be ordered to take measures, after an incident, to prevent
damage; or
d. that the operator be ordered to take measures of reinstatement’.
34
International Law Commission, 2006 Draft principles on the allocation of loss in the case
of transboundary harm arising out of hazardous activities, with commentaries (Report on the
work of the fifty-eighth session (1 May to 9 June and 3 July to 11 August 2006) General
Assembly Official Records Sixty-first Session Supplement No. 10 (A/61/10)). Quotation at
p.137. See
http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_10_2006.pdf (last
accessed: January 2011).
13
35
Edwards, I., An ambiguous participant: The Crime Victim and Criminal Justice DecisionMaking. British Journal of Criminology. 2004, pp.967-982 at 973.
36
Ashworth, A., Victims’ Rights, Defendants’ Rights and Criminal Procedure. In: A.
Crawford and J. Goodey (eds.), Integrating a Victim Perspective Within Criminal Justice:
international debates. 2000, Ashgate Dartmouth, pp. 185-204.
37
Ibid.
38
See http://www.conventions.coe.int/Treaty/en/Reports/Html/172.htm (last accessed:
January 2011).
39
Ibid.
40
ILC Commentaries, above n34, p.137.
41
White, above n1, p.91.
42
Christie, N., Conflicts as Property. 1977. British Journal of Criminology, Vol No. 17, pp.115.
43
Article 1 UNGA A/RES/40/34.
44
Ibid, article 6(a).
45
Ibid, article 6(c).
46
Ibid, article 12.
47
Ibid, article 6(e).
48
Federal Constitutional Amendment; H.R. 5107, The Justice For All Act of 2004 18 USC
§ 3771
49
Doyle, C., Crime Victims’ Rights Act. Novinka. 2008, p.3.
50
18 USC § 3771(a)(4)
51
18 USC § 3771(d)(4)
52
Human Rights Watch, Mixed Results US Policy and International Standards on the Rights
and Interests of Victims of Crime, New York: Human Rights Watch. 2008, p.12.
53
Starr, J.W. and Flack, B. L. and Foley, A.D., New Intersection: Environmental Crimes and
Victims' Rights. 2008-2009. Nat. Resources & Env't., Vol No. 23, pp.41-52.
54
18 USC § 2241-2233.
55
Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims
in criminal proceedings.
56
In particular, Recommendation (R (83) 7) calling for Member States to develop policies to
provide assistance to victims, and to take account of the public’s view in forming policies and
Recommendation (R (85) 11) on the position of the victim in the framework of criminal law
and procedure.
57
Framework Decision, above n55, article 2(1).
58
Ibid, article 1(a).
59
Case C-105/03 Criminal Proceedings against Maria Pupino.; Case C-404/07 Győrgy Kaz
v István Roland Sós.
60
Meeting of the European Council 15th-16th October 1999.
61
The Stockholm Programme – an open and secure Europe serving the citizen: Council of the
European Union, 2009), (14449/09) para. 2.3.4.
7
BIBLIOGRAPHY
Birnie, P., Boyle, A. and Redgwell, C., International Law and the Environment. Oxford.
2009. 3rd edn.
Hayman, G. and Brack, D., International Environmental Crime: The Nature and Control of
Environmental Black Markets. Royal Institute of International Affairs. 2002.
14
Kramer, L., EC Environmental Law. Sweet & Maxwell. 2006. 6th rev edn.
Mitsilegas, V , EU Criminal Law, Hart Publishing, 2009.
White, R., Crimes Against Nature: Environmental criminology and ecological justice. Willan
Publishing. 2008.
Report for the EU Commission by Huglo Lepage & Partners, Study on Environmental Crime
in the 27 Member States, 2007 accessible at:
http://ec.europa.eu/environment/legal/crime/pdf/report_environmental_crime.pdf (last
accessed: January 2011).
15