It is the author's duty to begin this work with a reflection of my dear wife Mercedes Lara Mendosa; on the environmental problems of her country and internationally.
The aforementioned reflection calls for the need to create awareness from an early age; Regarding a very fashionable topic in our time but with a very different vision, –between experts and non-experts– the protection, care and conservation of the environment:
Mercedes begins her reflection by stating: “I believe that environmental education should be from an early age, from home and rather than transmit it as a custom, caring for the environment must be transmitted and made aware of it as knowledge, since a custom can change or be modified, either by influence or imitation caused by the different social groups with which we are related throughout our development ”.
Continue reflecting, Mercedes: “Knowledge remains, it can be modified, but in a way to be better used. Much is said that it is necessary to educate for the future but then "today" who cares for it? It is a minority that is aware that care begins today for today. My resources are less and less or are contaminated; my behavior is altered as is my society, how to act tomorrow? What benefit could it bring tomorrow if I am hurting myself today? "
INTRODUCTION
Over the past two decades, the issue of environmental injustice has come to the fore and a major movement has emerged around it. From the beginning, special attention was paid to the disproportionate impacts of environmental pollution. The extent of disproportionate impacts is up for debate, as are their causes
The problem of environmental deterioration and the degradation of natural resources is a reality that is more than evident in our countries and currently fills important investigative spaces from all orders and especially in the legal, given the urgent need to find solutions to these attacks in order to put an end to the growing compromise of our life on the planet.
The convenience of scientifically substantiating the protection of the environment in the field of Criminal Law is present in current trends in the fight against the increasingly growing environmental crime, given the terms and importance of the legal right that concerns us and the consequences that in the order of the present generations and the safety of the future ones means environmental damage.
Increased concerns about environmental justice have led to new policy initiatives and innovative scientific research. We cannot begin this work if we do not define what it is: Environmental Justice. For this work we have proposed the following summary:
- ENVIRONMENTAL JUSTICE (DEFINITION) COMPARATIVE STUDY ON THE CONSTITUTION OF ENVIRONMENTAL PROSECUTOR'S OFFICES IN CENTRAL AMERICAN COUNTRIES ENVIRONMENTAL PROSECUTORS SPECIAL ENVIRONMENTAL PROSECUTOR'S OFFICE FUNCTIONS OF THE ENVIRONMENTAL PROSECUTORS STRATEGY OF CUSTOMER ASSESSMENT
ENVIRONMENTAL JUSTICE (DEFINITION)
Although the disproportionate impact of environmental conditions (such as pollution) is one of the main concerns of the environmental justice movement, it is by no means the only one. There are a range of definitions of the term "environmental justice" that are used, many of which also cover an even broader spectrum of concerns. It is important to recognize that the topic of environmental justice is broader than the information provided by Scorecard.
The 1991 People of Color Environmental Leadership Summit adopted Principles of Environmental Justice that covered a wide range of topics.
Environmental Justice is broadly defined as the "search for equitable justice and equal protection under all laws and regulations regarding the environment, without discrimination based on race, ethnic origin and / or socioeconomic status." and also as one of the four related concepts, including environmental equity, environmental racism, and environmental classism.
Many countries have taken significant steps on the issue of environmental justice by establishing environmental prosecutors. With the logical local variations, there is consensus on its effectiveness in helping to stop crimes against the environment
COMPARATIVE STUDY ON THE CONSTITUTION OF ENVIRONMENTAL PROSECUTOR'S OFFICES IN CENTRAL AMERICAN COUNTRIES.
In carrying out this work; The author, to illustrate the present work a little more, carried out a comparative study of those countries where environmental prosecution offices have been created, such as Spain and Mexico. It can be seen that they are two countries with different geographical latitudes, but that base their right on the same origin (Romano-French), which helps to find points of convergence in their environmental legislation. Which gives us a clearer idea of the need to create environmental prosecutors, with specialized resources and personnel to carry out their work.
The Spanish environmental prosecution; In a recently issued report, it states that: Environmental prosecutors have, of course, specific time to investigate this type of crime, but above all they have expertise, both legal and technical, in this matter. The investigation of the perpetrators of these crimes, the determination of damage or, where appropriate, the danger to the environment or the examination of the administrative regulations applicable to the configuration of many of these criminal types is very important since they present particularities notable and are not normally easy tasks to which prosecutors are used.
The Attorney General of the Mexican Republic, in the foundation to establish the environmental prosecutor's office, in 1998, said that: “The strengthening of the justice administration institutions has to be adopted to curb crime, which is increasingly aggressive, more diversified and sophisticated. in its methods, more powerful in its resources, with increasing power or infiltration of the institutions and with a greater capacity for corruption. In other words, changes in the modalities of action of crime require changes in the way in which Justice operates. Which is also valid for Cuba.
In the aforementioned comparative study carried out by the author. It was noted that all countries have not adopted the same structure to deal with environmental crime. We have Honduras, Guatemala and Costa Rica as an example.
- Honduras has nine environmental prosecutors Guatemala thirteen Costa Rica three
Those who attend hundreds of cases, with great budgetary difficulties to carry out their investigations, but with significant results. In addition, in environmental crimes, the intervention of the Public Prosecutor's Office is essential since, as in other types of crimes, there are usually harmed, damaged or offended crimes, in those related to the environment there are often none and, although criminal action is always public, in these cases it is not usually exercised by anyone.
ENVIRONMENTAL TAX
The existence of Environmental Prosecutors, allows the opening of investigations, with the help of the Police and the collaboration of the CITMA Inspectors Corps and the different organisms of the Central State Administration as the case may be, to carry out proceedings, and exercise the corresponding criminal actions.
As stated within its functions as established in Law 83 dated July 11, 1997. Where it is stated in its Chapter III Article 8 that the Office of the Attorney General of the Republic for the fulfillment of its objectives, has the functions following main:
- a) Ensure compliance with the Constitution, laws and other legal provisions by State agencies, economic and social entities and by citizens; b) Act against violations of constitutional rights and legally established guarantees and against the infractions of the legality in the acts and provisions of State agencies and their dependencies, the directorates subordinate to the local organs and other economic and social entities, demanding their reestablishment; c) address the claims that citizens present about alleged violations of their rights;d) verify respect for constitutional and procedural guarantees during the investigation of complaints and other information on criminal acts or dangerousness indices and ensure legality in the processing of judicial processes, in accordance with the law; e) rule at the request of the National Assembly of People's Power or the Council of State, regarding the constitutionality of laws, decree-laws, decrees and other general provisions; f) promote and exercise public criminal action on behalf of the State; g) act on behalf of the State the judicial actions that correspond according to the current legislation, based on the social interest and where appropriate, on behalf of minors, absent or incapable;h) Directly initiate and instruct proceedings in the preparatory phase or other preliminary actions in criminal proceedings, in accordance with current procedural laws and the regulatory provisions issued by the Attorney General; carry out the procedures that are necessary in other judicial processes in which it must intervene; i) substantiate administrative files, according to legal regulations; j) verify compliance with sanctions and security measures, in accordance with the provisions of the Law and in the corresponding judicial resolutions and ensure respect for the rights of the detained, insured or sanctioned persons; k) verify compliance with the laws,regulations and provisions on the treatment of minors who are offenders or with conduct disorders and minors in care institutions; l) exercise legislative initiative in matters of their competence; m) participate in crime prevention tasks and in the fight against any manifestation of crime or antisocial behavior, adopting the necessary measures for that purpose; n) contribute to the development of citizen legal awareness, through dissemination and scientific activities.n) contribute to the development of citizen legal awareness, through dissemination and scientific activities.n) contribute to the development of citizen legal awareness, through dissemination and scientific activities.
SPECIAL ENVIRONMENTAL PROSECUTOR
The complexity and specificity of this type of crime makes it increasingly necessary to create a Special Environmental Prosecutor, whether Municipal, Provincial or National, equipped with sufficient prosecutors and adequate means to deal with environmental criminals.
To illustrate a bit the need for the environmental prosecutor's office, we can say that: During 1996, the Madrid Environmental Prosecutor carried out 90 proceedings, of which 66 ended in trial. 12 complaints were filed, as many complaints and 22 files were opened. administrative. In these data, the crimes established in article 325 of the Penal Code, relative to those committed against natural resources and the environment, take center stage, since 80% of the complaints and 30% of the complaints are inspired by it.
OPERATIONS OF THE PROSECUTOR'S OFFICE
As an example of the operation of these Prosecutors, we can put the one in Madrid. Since the Spanish Penal Code was collected, environmental or ecological crimes. To prosecute them, the prosecutor works closely with the Judicial Police and, to a lesser extent, with the Madrid City Council's Green Patrol. The veracity of the denounced facts, to be proven, they find some disadvantages such as:
- The expert tests are increasingly complex in cases such as contamination by dioxins or spills, In some cases the help of the Institute of Toxicology, the Carlos III Health Institute is required, from certain chairs of the Faculty of Biology or the Higher Technical School of Forestry Engineers.
This prosecutor's office has a close relationship with civil society, not in vain are individuals who are most directed to report crimes. The creation of Environmental Prosecutors is the first step in the introduction of the environmental issue in the Justice system. It's the first, but it shouldn't be the last.
This should point to the creation of specifically environmental courts, with their own competencies, technical knowledge and expert teams. Currently, in the face of environmental damage, the judges do not know what measures to order from the Police, what expertise to ask for, or who to ask for, or how to do it. Often they don't even consider it important to address the issue.
TRAINING STRATEGY
We need environmental and tax courts at least with knowledge of the environmental issue that have their own body of experts made up of technicians specialized in these issues.
We have that in the Declaration of Buenos Aires Argentina, in the Symposium of Judges and Prosecutors in their declaration they state:
“Convinced of the role of judges and prosecutors in the effective application of Environmental Law in order to achieve sustainable development, and taking into account the background clearly set out in the Declaration of Mexico of 2000 and the Declaration of Johannesburg of 2002, we have arrived at different conclusions and recommendations that we consider fundamental for our region on issues related to: training of magistrates, organization of justice and environmental competences, relationship of the Judiciary with the other powers of the state and with civil society, evaluation of the application of environmental regulations by the Judiciary and prosecutors, constitutional processes, civil action and environmental damage and environmental criminal action ”.
In their statement, judges and prosecutors continue to state: “The exchange of experiences has revealed the lack, in general, of adequate motivation on the part of judges and prosecutors regarding environmental issues. In this sense, we propose two primary action strategies: one for training and the other for advocacy ”. A reality that we have to reverse in the shortest possible time, otherwise tomorrow will be too late
Convinced of the need to encourage training and participation in environmental issues by judges and prosecutors, they propose the following Training Strategy:
- Promote opinion surveys or studies that allow identifying the specific needs that judges and prosecutors pose Promote awareness-raising campaigns on environmental issues Incorporate environmental issues into training programs for judges and prosecutors of national and local agencies for this purpose Channel regional training through the Ibero-American Judicial School Network Stimulate training on environmental issues through incentives Write, disseminate and use manuals (comprehensive environmental digests) as training tools that compile basic principles of law environmental, as well as a compendium of local environmental regulations and the main jurisprudence on the matter. Promote spaces for the exchange of experiences.Optimize the use of resources. In this sense, we generally note their limited availability. For this reason, we propose to appeal to the search for resources through international cooperation and the transversality of the subject, introducing environmental issues in the curricula already existing in the respective Judicial Schools Propender to the institutionalization of environmental training of judges and prosecutors, considering the importance of implementing its evaluation and monitoring Include in training programs auxiliary personnel of the courts and the Public Ministry, and of the public administrationFor this reason, we propose to appeal to the search for resources through international cooperation and the transversality of the subject, introducing environmental issues in the curricula already existing in the respective Judicial Schools Propender to the institutionalization of environmental training of judges and prosecutors, considering the importance of implementing its evaluation and monitoring Include in training programs auxiliary personnel of the courts and the Public Ministry, and of the public administrationFor this reason, we propose to appeal to the search for resources through international cooperation and the transversality of the subject, introducing environmental issues in the curricula already existing in the respective Judicial Schools Propender to the institutionalization of environmental training of judges and prosecutors, considering the importance of implementing its evaluation and monitoring Include in training programs auxiliary personnel of the courts and the Public Ministry, and of the public administrationInclude in the training programs auxiliary personnel of the courts and the Public Ministry, and of the public administrationInclude in the training programs auxiliary personnel of the courts and the Public Ministry, and of the public administration
Regarding the organization of justice and environmental competencies, they expressed the following considerations:
- We consider that all magistrates should take the immediate and necessary measures to protect the environment and people, or all those precautionary measures that are conducive, even when there is a debate regarding competition. It is necessary to clarify the competition problems that arise due to lack of definition. regulations and interpretation by higher courts, otherwise serious limitations may be generated on the right of citizens to access justice. We promote the creation of special jurisdictions in environmental, civil and criminal matters, in the different jurisdictional orders. Without prejudice to this, and until its implementation is possible, it is advisable to generate gradual or intermediate solutions for this purpose.We advocate the creation of environmental courts at the local level and at the supranational level, with the ability to strengthen the idea of the environment as a fundamental human right. We consider it necessary to build indicators linked to the performance of justice in order to support the creation of courts supranational environmental issues.
The judges and prosecutors gathered at the Symposium considered essential:
- Promote public participation in environmental decision-making, installing civic-environmental awareness in society and promoting training in the use of existing legal tools. Regarding Public Environmental Information, they presented the following: The right of citizen access to public information on environmental issues should be recognized or strengthened, as the case may be, as a tool to know the rights potentially affected and thus guarantee access to justice To guarantee access to public environmental information, it is essential to achieve clear and summary procedures, establish the obligation of spontaneous dissemination of information by the public and private sectors, provide sanction mechanisms in case of non-compliance,as well as setting limits to industrial or military secrecy, and the reversal of the burden of proof with respect to who is obliged to provide the information.In this sense, we urge public administration agencies to provide judges and prosecutors with the access to information, breaking with the "culture of secrecy" very common in our countries.
Regarding the judicial processes related to the protection of the environment, the judges and prosecutors considered the following:
- We consider it necessary to have in our countries a preventive environmental jurisdictional action whose judgment has dissuasive effects. We emphasize the importance of recognizing a broad, real and not merely formal, active legitimation to access justice in environmental processes, given the complexity that characterizes the environmental problem and the speed that its resolution requires, the processes for the protection of diffuse interests must be very summary. Likewise, gratuitousness should be considered in this type of lawsuit. Priority should be given to the treatment of cases that deal with fundamental rights, such as health, life and the environment, over those that deal with patrimonial issues. Based on some experiences with highly positive results,We consider that there are enriching participation instances for effective access to justice that must be promoted, such as the participation of citizens and the Public Ministry in the promotion of environmental causes and the figure of the Amicus curiae. Sound criticism - as a method of evaluating evidence and the set of presumptions - in processes where environmental issues are discussed, with the exception of criminal proceedings, given their inherent characteristics. It should be aimed at applying the theory of dynamic loads probative, considering that who must prove is that party that is in the best technical, economic, legal or factual conditions, with respect to the leading facts.particularly in environmental issues, it does not end in the literal application of the norm: we believe it is necessary to sharpen ingenuity and interpretative creativity to give effective responses to the conflicts raised. For this reason, we are convinced of the need for an active judge in environmental processes, who has broad powers, such as to promote additional evidence, incorporate evidence not provided by the parties and impose fines. We cannot fail to emphasize the need to to have an official body of experts for environmental causes, as well as to consider the information from public bodies to be of the same evidentiary nature. We consider it appropriate,the conclusion of agreements between State bodies to facilitate access to information on evidence already produced in order to be used in other processes. It would imply socializing the test and avoiding duplication of efforts In order to make the work of judges and prosecutors in environmental cases more efficient, it is proposed to have specialized bodies for environmental security and technical scientific advice in those countries that do not have this modality We consider it essential to establish as a general rule in the processes the procedural anticipation of the evidence and precautionary measures, in order to avoid the loss of the same. We consider the coordination between the different jurisdictional instances in environmental cases to be of utmost importance. We consider their application timely. of the principle in dubio pro environment.The erga omnes scope of judgments on environmental issues must be recognized, due to the collective nature of the protected right We note that there must be adequate procedures for the execution of judgment with the most summary environmental procedures, in order not to distort the recognized guarantee
ENVIRONMENTAL JUSTICE IN CUBA
For the analysis of the issue of environmental justice in Cuba, the author after a detailed study on the subject in question, considered it prudent to have several facets or scales of work, to be taken into account in an integrated way, such as:
- Ecological crimes and their investigation Ecological crimes and their repression Ecological crimes and their investigation
Need for an Environmental Prosecutor's Office and to point to the future creation of Environmental Courts. Cuba lacks a specific structure for the investigation of crimes against the environment.
Law 81/97 of the Environment that refers us to the Penal Code establishes: that those actions or omissions that attempt against the Environment will be sanctioned in accordance with the provisions of current criminal legislation.
However, in Law 62/87, the current Penal Code, environmental or ecological crimes are not included; that is, there is no title where all the assumptions that threaten the environment are collected; as a legal good.
Therefore, there are bodies created to combat these types of crime, which require technical means and competent personnel to carry out the necessary investigations on the subject.
In accordance with the provisions of article 127 of the Constitution of the Republic of Cuba: The Office of the Attorney General of the Republic is the organ of the State to which corresponds, as fundamental objectives, the control and preservation of legality, on the basis of the vigilance of strict compliance with the Constitution, laws and other legal provisions, by State agencies, economic and social entities and by citizens; and the promotion and exercise of Public criminal action on behalf of the State.
On the other hand, both our own experience and the information obtained on the functioning of these bodies shows us that environmental or ecological crime; It is usually considered as of second importance with respect to other common crimes, this means that they give it less powers and less possibilities to act than it needs.
I believe that a specific area is needed for the investigation of environmental crimes. Of course, the different prosecution offices often take on environmental issues, but they do so willingly, without the professional training necessary to do so. This greatly increases the chances of error in a very specific issue from the technical point of view.
Thus, a complex chain is established in which the Police do not act because they do not receive the proper instructions, since whoever has the competence to give them is not on the issue and whoever knows the issue does not have the necessary skills to summon the justice forces.
Cuba Environmental Inspection and Control Center (CICA) and its position in the face of serious violations of environmental legislation and its necessary criminal process.
In meetings with colleagues from the Environmental Inspection and Control Center better known by the CICA, they have expressed the opinion that the prosecutors and judges who are in charge of environmental cases sometimes do not know what requests to make, or on what issue of the many which includes the environmental branch seen from its holistic nature, to clarify a certain case, which deserves it due to its relevance.
As in the substantive criminal norm (Law 62/87) current Penal Code does not appear any Title or Chapter referring to environmental crime. CICA environmental inspectors, in the absence of such in the Criminal Law, and in compliance with the "Principle of Legality" where it is stated that: Only acts expressly provided as crimes in the law can be sanctioned, prior to their commission. No one can be imposed a criminal sanction that is not established in the law prior to the punishable act. In accordance with the provisions of article 2.1 and 2 of the current Penal Code.
They took on the task of looking for a criminal formula (crime of disobedience) that, in the face of repeated non-compliance with the provisions of the Administrative legislation (Decree-Law 200) in force, would allow the use of the coercive and coercive means, par excellence, available to the State. to prevent events that have an impact on the protection, care and maintenance of the Environment such as Criminal Law
On other occasions when they decide to take a case through criminal proceedings and present a file to the prosecution, - either on a private individual or legal person - as the case may be for "disobedience" or repeated non-compliance with current administrative legislation. in environmental matters (Decree-Law 200 and complementary legislation). In some cases, prosecutors acting in the absence of knowledge of the issue allege that it is a matter of "last ratio" and that the administrative route continues to be exhausted, and to use the criminal one, which undermines the role of the CICA as an auxiliary of Justice. As stipulated in articles 134 and 147.1 and 2. Current Penal Code.
In the first, it is the judicial or administrative official who does not comply with a final resolution or order issued by a court or competent authority and covered by the legal formalities, incurs a penalty of deprivation of liberty from three months to one year or a fine of one hundred to three hundred installments. According to articles 134 of the C / P.
In the second, it is the individual who disobeys the decisions of the authorities or public officials, or the orders of the agents or assistants of those issued in the exercise of their functions, incurs a penalty of deprivation of liberty of three months to one year or a fine of one hundred to three hundred installments or both.
In the same second paragraph article it is stated that: If the disobedience consists of refusing to give one's identity or concealing the true one, the penalty is deprivation of liberty for six months to two years or a fine of two hundred to five hundred quotas, or both.
Ecological Crimes its repression.
The action of the auxiliary forces of justice in the environmental issue is insufficient. A study on the subject; made by the author, throws us the following:
- Instead of a systematic search strategy. It is acted on from specific complaints What causes that many ecological crimes are not investigated is the lack of complete or registered information on all the regulations to be met, or they do not have a specific indication to search for them.
The auxiliary forces of justice need adequate leadership to obtain results. On the environmental issue there are some questions that can be asked to quickly guide its action:
- On the issue of hazardous waste, the auxiliary forces of justice act, but they do not have systematic directives on how to look for them. We can go on warning the justice forces about transcendental ecological crimes and their effects and that can occur in any country; be it developed or underdeveloped. Although we are not in a position to achieve the existence of unified databases yet, but we can gradually create them together with the scientific sector.
CONCLUSIONS
- Criminal law is not the panacea that solves all problems. Environmental injustice has come to light and a major movement has emerged around it. From the beginning, special attention was paid to the disproportionate impacts of environmental pollution; However, no matter how perfect the norm that punishes a certain reprehensible behavior may be, it will not stop committing such a punishable act.In addition, human and / or material resources are usually necessary to be able to apply certain laws whose effectiveness and effectiveness depend, on To a large extent, of these means, regardless of the perfection or sufficiency of the laws in question. Environmental prosecutors must have a close relationship with civil society, it is individuals who are most directed to report crimes.The creation of Environmental Prosecutors is the first step in the introduction of the environmental issue in the Justice system.The creation of specifically environmental courts, with their own competencies, technical knowledge and expert teams, is an urgent need. Currently, in the face of environmental damage, the judges do not know what measures to order from the Police, what expertise to ask for, or who to ask for, or how to do it. Often, they do not even consider it important to address the issue. The performance of the auxiliary forces of justice in the environmental issue is still insufficient.
CONSULTED BIBLIOGRAPHY.
1. Center for Environmental Legislation of the World Conservation Union (IUCN). Publication of the First National Congress on Environmental Law, published with the support of the Environmental Law Center ELC, Germany. Chapter XI, Criminal Protection of the Environment, Page 145.
2. Regional Office for Mesoamerica, second Congress of Environmental Law. First Edition, Chapter XXIV “The role of the Ecological Prosecutor”, Page 249. Printed by Grafica Brenes, December 1994.
3. Neófito López Ramos, Magistrate, Series of Documents on Environmental Law, Summary of Judicial Judgments on Environmental Matters. Pronounced by Jurisdictional Bodies of Latin American countries. Regional Office for Latin America. First Edition, 2003.
CONSULTED LEGISLATION
1. Law 81 of the Environment, in more than 150 questions and answers. Ministry of Justice, 1999.
2. Law No. 62 dated December 29, 1987, (Updated Penal Code) edited by the Editor of the Ministry of Justice, 2003.
3. Law No. 5 of “Criminal Procedure”, First Reprint, Editor of the Ministry of Justice Zanja No. 352, Havana, Cuba. 1999
4. Decree-Law 200 of “Contraventions in Environmental Matters” dated December 22, 1999. Editor of the Ministry of Justice Zanja No. 352, Havana, Cuba.
INTERNET PAGES CONSULTED
1. Scorecard on the following website, http://scorecard.goodguide.com/index.tcl 2002)
2. See the Google version in obtained on Jul 26, 2007 16:37:10 GMT
