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ISSN 2611-8858


Environmental Crimes

The New Environmental Criminal Law. Issues Concerning Crime Theory and Sanctions

This contribution introduces the main innovations, the unsolved problems and the future challenges brought by the Law of 22 May 2015, No. 68. Such topics are in-depth analyzed throughout the papers published in the present Issue, which constitute the conference proceedings of the 2nd Conference of the International Association of Penal Law, Young Penalists of the Italian Group, held in Florence on December 2nd, 2016.

The Best Available Techniques on Defining the Case in Issue and on the Culpability Verdict

The object of this article is the relevance given to the so-called best available techniques in the definition and detection of environmental crimes. In order to explore this topic, it's fundamental to clarify what is intended for BAT and how they operate in the environmental law system, before to evaluate under what terms criminal law might apply them. To do so, it's necessary to examine the nature of the BAT, analyzing how their identification inevitably involves political and economical factors - and not merely technical ones.

Environmental damage and its consequences on human health

The paper deals with the use of epidemiological evidence for the purpose of proving the causal link between polluting conducts and the harm to human health, under the new environmental crimes introduced in the Italian penal code by law n. 68 of 2015. The attention is focused on articles 452-ter (death or personal injury as a result of the crime of environmental pollution) and 452-quater (environmental disaster) of the penal code. The author provides the interpretation of these provisions, pointing out several shortcomings related to their drafting and their penalties, and then addresses the issue of the relevance of the epidemiological measures of the "relative risk" and the "attributable number". This part of the paper takes into account the different positions that have emerged in legal doctrine and reaches the conclusion that such epidemiologic measures may, under certain conditions, provide evidence which is relevant not only for the proof of the environmental crimes, but also for the offences of homicide and personal injury.

Legislative Options about Mens Rea in New Environmental Crimes

The discipline of the environmental crimes included in the penal code leads to questioning about some issues concerning culpability and the relationship between it and the punishment. In particular, the ambiguous wording of new art. 452-ter c.p. requires to verify whether death and bodily injuries require a mens rea of negligence. Moreover, art. 452-quinquies c.p. stimulates interesting reflections on the proportion between culpability and punishment.

The role of precautionary principle in the “new” environmental criminal law

The law no. 68 .of 2015 introduced new criminal offences, aimed to protect the environment, life and physical integrity of affiliates in various degree and shapes. It also introduced for environmental crimes to be subjected to a mechanism of degradation of the criminal offense and to avail of political and criminal tools already used successfully in other areas. Despite many changes have also affected decree no. 152 of 2006, the legislator didn’t clarify the role of the precautionary principle in the environmental criminal law. Far from being confined to a restricted space, like the the latest judgements of the Supreme Court suggested, the precautionary principle could know an expansion, contributing to the increase of area of criminal relevance concerning cases referred to articles 452 bis, 452 ter, 452 quinquies of Criminal Code.

Protection of Victims of Environmental Crimes: the Case-law Ilva

With this paper, the author aims to propose a synthesis of the current state of the Court's Strasbourg case-law on environmental matters: starting with the notion of positive obligations, the author analyses the main interpretative guidelines with which the judges have extended the scope of the right to life under Art. 2 Cedu and the right to privacy under Art. 8 Cedu to assert a conventional environmental right for protection the individual. The protection of the victims of environmental crimes offers a interesting reflection point in relation to its normative implications, due to the recent legislative reform and to the perspective of protecting the victim in the criminal process, which is considerably stronger today.

The Limitation Period of Environmental Crimes: Effectiveness, Consistency, Reasonableness?

This paper examines the recent reform of art. 157, par. 6 of Italian Criminal Code enacted by the Law n. 68 of 2015, which doubles up the limitation period for any of the Environmental Crimes established in Title VI bis. Its approach focuses on a sound analysis of legal, political and systematic meanings and implications of the new provision, as well as on to what extent there are plausible reasons to justify the reform. What emerges raises serious doubts concerning the usefulness of the current regime, in the light of scope of the reform and the main features of the new environmental crimes. It is questioned as well the consistency of the new provisions with the broader area of environmental protection under criminal law, also in the perspective of the scrutiny on reasonableness by the Constitutional Court.

The Environmental “Diversion”: Reductionist Effects and Systemic Concerns

The Law No 68 of 22 May 2015 introduced a diversionary procedure enabling the out-of-court settlement of certain minor criminal violations of the Environmental Code (Legislative Decree No 152 of 3 April 2006). This article analyses in depth the various stages of this innovative procedure, placing particular emphasis on its possible legal qualification. The policy functions of the new procedure and its scope of application are also critically assessed. Conclusively, the article concentrates on the new procedure's compliance with the principles of restorative justice. It is sumbitted that this new diversion scheme can be regarded as a form of de facto decriminalisation, based on a bargaining process which sits ad odds with aims of restorative justice.

Assessing Corporate Criminal Liability for Environmental Crimes in the Light of the Principle of Legality

As for Criminal Law concerning individuals, tensions affect the principle of legality also in the matter of corporate criminal liability, due to interpretations aimed at expanding the catalogue of predicate offences beyond the boundaries defined by the legislator. The problem is addressed from the environmental criminal law perspective, as up until now, this field has represented the first and main testing ground for the principle of legality in the "231 system". Starting from the Ilva case, this contribution goes back over the controversial relationship between environmental crimes and the crime of association, highlighting how art. 24-ter of the decree – also in the light of certain developments related to transnational organized crime – risks turning into a passe-partout provision, with consequences on the actual possibility of building the compliance program and on the corporate “culpability” itself. The relevance of the crime of association in this matter is confirmed by the introduction of the environmental aggravating circumstance for crimes of association in the new title VI-bis of the Criminal Code (Art. 452-octies c.p.). Such introduction calls for further reflections, as the provision shows aspects of irrationality related to sanctions for the collective entities.