- Venezuela Enacts New Environmental Criminal Law
- June 19, 2012 | Author: Bernardo Wallis Hiller
- Law Firm: Norton Rose Canada LLP - Caracas Office
On May 2, 2012, the new Venezuelan Environmental Criminal Law (the New Law) was published in Official Gazette No. 39.913, repealing the 1992 Environmental Criminal Law (the Repealed Law). We will summarize below the changes incorporated by the New Law and its effects on the environmental regulations already in place in Venezuela.
The Environmental Criminal Law specifies and sanctions all crimes that adversely affect the environment and natural resources. The New Law is applicable to individuals and legal persons and provides for different sanctions depending on whether the crimes against the environment are committed by natural or legal persons. This distinction between criminal subjects and their separate regulation is one of the innovations of the New Law that was not included in the Repealed Law.
One interesting feature of the New Law, which the Repealed Law also included, is the fact that it allows prosecution in Venezuela for crimes committed extraterritorially (i.e., committed outside Venezuelan territory), provided the damages and risks of the specified act take place in Venezuela. The investigation is initiated by the Public Prosecutor’s Office, and no legal action can be instituted twice for the same cause of action (ne bis in idem).
Probably one of the most relevant changes of the New Law is that it modifies and significantly toughens the sanctions that were included in the Repealed Law. For example, the Repealed Law included community work as a sanction applicable to individuals; however, under the New Law the commission of crimes against the environment by individuals is punishable only by fines or imprisonment.
Similarly, new sanctions imposable against legal persons have been included in the New Law, such as the dismantling of the facility, establishment or construction, or the dissolution of the legal entity. Such sanctions may be accompanied by accessory sanctions such as permanent or temporary closing of the establishment. Furthermore, aside from the criminal sanctions that may be imposed on violators, judges will also analyze the civil liability arising from actions that damage the environment, and may order the payment of damages or any other reparatory measures that the judge may deem appropriate.
Some of the new sanctions, such as the dissolution of the legal entity, are rather strange and, to our knowledge, have not been used before in Venezuelan legal instruments. Other new sanctions, such as the dismantling of the facility or the permanent closing of the establishment, are quite harsh and could even be ordered by judges whenever they deem them to be necessary as precautionary or interim measures. The nature of these sanctions raises concerns regarding the fact that it would suffice for a judge to suspect that an environmentally adverse action is occurring for her/him to order one of these measures that could lead a going concern into serious problems.
It is also very important to underline that even though legal entities are considered subjects of the law and are perfectly liable to be sanctioned for infringing the New Law, this does not preclude the possibility of a finding where their directors or owners are also criminally sanctioned, if the Court determines that they were any way involved in the commission of such criminal acts.
Below we will analyze in detail all the crimes against the environment that have been specified in the New Law, and will briefly provide the reader with information on the sanctions applied for all types of crimes that are included in the New Law.
Crimes against the environment
The New Law lists a significant number of crimes against the environment, which are classified into eight groups, dealing specifically with: crimes against the environmental administration; crimes against territorial planning; crimes dealing with omissions of environmental impact evaluations; crimes against biological diversity; crimes regarding the alteration, deterioration and damage to the waters; crimes regarding the alteration, deterioration and damage to the soil, topography and landscape; crimes regarding the alteration, deterioration and damage to the vegetation, fauna or their habitats; and crimes against the environmental quality.
As will be evidenced below, all eight groups of crimes are intimately related with permits and authorizations that must be granted by the environmental authorities in order to carry out the activities described therein.
Crimes against the environmental administration
The first group of crimes deals with crimes against the environmental administration, which involve sanctions for all those public officials who authorize prohibited activities, or in any way obstruct the environmental administration system. This first group also sanctions all private persons and entities that provide false information to the environmental authorities in order to obtain permits for activities that are regulated in the New Law.
In light of this, when dealing with the Venezuelan environmental administration, individuals and legal entities must be very cautious in reviewing the accuracy of information provided, especially due to the fact that the New Law sanctions violators even if they did not have the intention to violate the law.
Crimes against territorial planning
A second group of criminal types targets those actions that adversely affect territorial planning, among them the contravention of territorial planning schemes, the illegal occupation of protected natural areas, the modification or destruction of protected sites or property, and construction in non buildable areas. Exactly what is considered a non buildable area or protected property is not included in the New Law, and it will be up to the regional administrations or a future regulation of the New Law to clarify this issue. However, the New Law makes very clear that the committing of any of these crimes can be penalized with sanctions of up to two years in prison or a fine of up to 2,000 tax units.
Crimes against biological diversity
Chapter IV of the New Law refers to a group of crimes against ecological diversity, and specifies a series of actions that are considered harmful to living beings and that affect the rich biological diversity of the Venezuelan ecosystem. For example, the law prohibits the use of floating cages, pens or corrals for the breeding or cultivation of exotic aquatic species without the appropriate permits, or the use of the ecosystem for the preparation of biological weapons of any sort.
Most importantly, the New Law criminalizes unauthorized activities involving genetic materials, such as the transfer or illegal manipulation of genetic material and those that may cause irreparable damage in the course of scientific research to the ecosystem or its components.
Crimes involving alteration, deterioration and damage to the water
Chapter V refers to the alteration, deterioration and damage to the waters. Although the provisions are very similar to those in the Repealed Law, this chapter includes further actions that were not specified in the Repealed Law such as the prohibition against obstructing water services to a populated centre and the prohibition against using surplus amounts of water that exceed what is permitted under technical norms.
Crimes involving alteration, deterioration and damage to the soil
Chapter VI regulates the alteration, deterioration and damage to the soil, topography and landscape, and constitutes one of the innovations of the New Law. The legislators have incorporated prohibitions such as exploiting or extracting non-metallic minerals. This part makes clear that without the proper authorization no extraction or exploitation of non-metallic minerals may be executed. Another measure included in this chapter is the prohibition against provoking any degradation to soil that can be used for agricultural purposes without taking into consideration the proper evaluation of its agro-ecologic specifications, the technical rules, or environmental plans issued by the competent entity.
Most importantly, this chapter makes special reference to the protection of beaches and their free access. The issue of free access to beaches is specifically directed towards any legal person such as clubs, hotels or industries that by any means obstruct the free access to beaches. In this sense, the New Law creates the obligation for the violator to re-establish free access to all beaches for pedestrians in a period of time assigned by the competent entity.
Crimes involving alteration, deterioration and damage to the vegetation, fauna or its habitats
Chapter VII deals with crimes regarding the alteration, deterioration and damage to the vegetation, fauna or its habitats, and is one of the most important chapters of the New Law. This chapter incorporates certain new regulations; however, in essence both the Repealed Law and the New Law maintain the same object and purpose. This chapter in both the Repealed Law and the New Law refers to the crimes of illegal hunting, fishing and burning. Nevertheless, it is the New Law that addresses the issue of forged authorizations to carry out such activities. In this regard, most of the regulations contemplate sanctions for those legal or natural persons that forge authorizations or documentation in order to pursue hunting, fishing and burning activities.
The protection of the food chain is also regulated in Chapter VII, which entails the prohibition of practicing or using new technology that might significantly affect the food chain and the ecosystems. It is interesting that legislators used the word “significantly” to determine whether a breach has been committed; the use of this term opens the possibility of a broad interpretation of what could constitute a crime using technology that might damage or affect the food chain, since no definition is stipulated in the New Law.
Crimes against the environmental quality
Finally, Chapter VIII refers to crimes against the environmental quality. This chapter is divided into six sections: poisoning, pollution and other actions that can alter the water quality; poisoning, pollution and other actions that can alter the atmosphere; waste and solid waste; hazardous substances and materials; radioactive materials; and finally noise pollution.
Section I of Chapter VII deals with poisoning, pollution and other actions that may alter the water quality. One of the new regulations is the restriction against poisoning of the waters by disposing of toxic waste, non-biodegradable or biochemical material that has not been treated correctly following the specific rules issued by the competent entity. If such infringement is committed, the infringer will be sanctioned, but will also be responsible for implementing all resources necessary to stop and prevent the contamination of waters. In the event that such pre-emptive measures are futile, the competent entity will mandate the seizing of the activity of the natural or legal person.
This chapter also makes reference to the pollution of the waters during the course of oil transportation. It specifically includes sanctions for the captain of any tanker that is subject to international regulations, and holds him liable for the contamination of the waters. Captains found guilty of such crime could face up to five years’ imprisonment. The New Law is even harsher on the owner of the tanker who by any means authorizes or orders the procedure that caused the pollution of the water, and sanctions him with up to 10 years’ imprisonment.
Section II of Chapter VII of the New Law refers to pollution and other actions that can alter the atmosphere, requiring the installation of the mechanisms necessary to prevent atmospheric pollution. The competent entity will stipulate a period of time for installing such mechanisms. If not implemented, the competent entity will close down the unit, vehicle or industry where the activity is carried out.
Section III of Chapter VII refers to waste and solid waste, and includes new regulations that the Repealed Law did not include. In general, Section III implements regulations that prohibit polluting the soil and subsoil by burying or infiltrating toxic waste.
Section IV, criminalizes contamination by hazardous substances and materials that may cause epidemics or diseases to plants and animals. This section urges the violator to implement all feasible measures to prevent such violations.
The New Law also deals with the issue of radioactive materials. Specifically, Section V of Chapter VII establishes that every person or entity who holds, imports, manufactures, transports, distributes, stores, markets, gratuitously transfers, facilitates the reception, traffics or uses for industrial, commercial, scientific, medical or any other purposes, devices or substances capable of emitting electromagnetic, radioactive or ionizing radiation, which may cause damage to human health or the environment in violation of the rules on the matter, shall be punished with imprisonment of up to three years or a fine of 3,000 tax units.
This part of the law also sanctions all natural persons or entities that liberate nuclear energy, thus endangering the lives or property of others, with up to six years imprisonment or a fine of up to 6,000 tax units. The third and last crime dealing with radioactive material is related to the disturbance of nuclear facilities or materials, and it can be sanctioned with up to 10 years’ imprisonment or a 10,000 tax unit fine.
Finally, Section VI of Chapter VII sanctions the owners of permanent establishments that generate noises that due to their intensity, frequency or duration are capable of causing damage or severely disturbing people. Sanctions for such type of noise pollution may be as high as six months’ imprisonment or fines of up to 300 tax units, depending on whether the owner of the source is a natural person or a legal entity.
Failure to comply with the sanctions imposed in the New Law
Finally, it is worth noting that legal or natural persons who have been sanctioned with the prohibition against the operations of a facility, factory or plant, and disregard such order, shall be sanctioned with up to six months in prison or a fine of up to 6,000 tax units. Furthermore, those persons will be denied the granting of new permits, authorizations, contracts or any other administrative act to pursue the same activity that gave rise to the offense, for up to one year after the sanction has been complied with.