In this work, it is about, succinctly highlighting what is the general problem that arises in the use of Criminal Law as an instrument to collaborate in environmental protection. Consequence of the own configuration defects of the criminal type that we could define as environmental, which are included in other legal assets such as Economy, Collective Security and Public Health, and to a greater extent, of the scarcity of technical and personal means to deal with a type of conduct that is very difficult to investigate and prosecute.
INTRODUCTION
The protection of the Environment as a legal asset with its own characteristics, as it has ended up being accepted, is not only compatible with economic growth, but is essential for it, even though it may clash with partial interests. In this theoretical framework the environmental policy of developed countries is inscribed. Limited but real, contradictory but, it seems definitely installed. In short, an oscillating environmental policy, as is inevitable in a context governed not only by market requirements, not only characterized by a lukewarm position on the part of the working classes of those same countries.
Reconciliability between the interests of the "national economy" and respect for the environment raises many questions. The Penal Code is not only a reflection of that tension. By limiting the scope of what is punishable by fauna, water from watering animals or by not demanding a specific danger in behaviors that may affect the environment, you are opting for a fragmented and technically poorly articulated criminal protection of the environment. Hence the meagerness of its application.
For the present work we have proposed the following summary, which I present below:
THE CONSTITUTION AND THE ENVIRONMENT
It is not enough that the Constitution recognizes the environment as a social value for this to automatically entail recourse to the right to punishment, but it will be necessary to analyze whether it is necessary that the good-value, Environment be criminally protected as a legal good. That is, if it has enough entity to make that qualitative leap, which transforms it from mere reality to a socio-criminally valued situation. The doctrine considers the good Environment if it has sufficient entity to make that qualitative leap, a position that I share.
The Constitution of the Republic in its Article 11 establishes that: “The Cuban socialist State exercises its sovereignty:
- Over the national territory, made up of the Island of Cuba, the Isle of Youth, the other islands and adjacent keys, the internal waters, the territorial sea to the extent established by law, and the air space that extends over them. On the natural and living resources of the seabed or subsoil and those existing in the immediate superjacent waters to the coasts outside the territorial Sea, to the extent established by law, in accordance with International practice.
In article 15, when defining the scope of socialist property, it is established that: “The natural and living maritime resources are property of all the people, in an irreversible way, within the area of their sovereignty.
In Chapter I, which deals with the political, social and economic foundations of the State, article 27 appears at the end.- The State protects the Environment and the country's natural resources. It recognizes its close link with sustainable economic and social development to make human life more rational and ensure the survival, well-being and security of current and future generations. It is the responsibility of the competent bodies to apply this policy. It is the duty of citizens to contribute to the protection of water, the atmosphere, the conservation of the soil, flora, fauna and all the rich potential of nature.
In this way, everything concerning the protection of the Environment is raised to the constitutional rank.
THE LEGAL GOOD ENVIRONMENT
The characterization of the legal asset Environment is of special relevance. At this point, the doctrine seems to agree that it is a legal asset of a supra-individual or collective nature, autonomous and anthropocentric in nature. As a collective legal good, it is said to be multiple "and the crime in that sense is multi-offensive", so it is defined based on the enumeration of its elements.
For SANCHEZ-MIGALLON PARRA, the legal asset Environment is a complete or synthetic legal asset as an agglutinator of other traditional assets, with respect to which the current socioeconomic situation has led to the requirement to configure it as a specific asset to be defended with autonomy.
When the task of defining the content of this legal asset begins, the difficulties are greater. Thus, RODRIGUEZ RAMOS, which is followed by an important part of the doctrine, defines the Environment as “the set formed by all natural resources (geo, flora, and fauna; atmosphere, waters and soils) for whose rational use (defense and restoration) they must watch over the public powers, with the main purpose of protecting or improving the quality of life and the development of the person ”. For this same author, anthropocentrism is an important element of the concept of Environment; anthropocentrism that manifests itself in three aspects: the character of right and duty, the adaptation to the development of the person and, finally, the connection with the quality of life.
However, it is necessary not to forget, according to Jescheck, " legal goods are not apprehensible objects of the real world, but rather ideal values of the social order, on which the security, well-being and dignity of the existence of the community rest", forming the basis of the social system and its degree of recognition grows with the frequency in which it is injured in society. Its object is tangible human interests.
The difficulties begin, as HASSEMER says, when we are faced with a universal legal good. Along with traditional legal assets, the new environmental processes introduce "new, diffuse legal assets", but the protection of these new legal assets, as objectives of political, social, and economic organization, is perfectly legitimate, although the victim does not it is perfectly delimited in its contours (and sometimes not the active subject either), because "criminal law does not protect victims, but functions" that can be translated into legal rights.
This protection must be carried out firstly insofar as the Environment is the existential foundation of the human being and secondly, insofar as it is an ideal vital space for the development of future generations. From this point of view, that is, from the moment in which we consider certain environmental values as legal good (or goods), their own characterization as such must implicitly carry that "social" or "valuable for society" characteristic.
Much of the arguments that justify the anthropocentric nature of the legal right Environment (which are based on the teleological relationship between the Environment and quality of life) are distorted. Every legal good has an anthropocentric dimension.
Therefore, it is not necessary to go to the identification (confusion) Environment -quality of life. For this reason I understand that only to the extent that the Environment affects social relations; only insofar as it is a social value, can it be legal. If it lacks that quality, it will be something else, but never a legal asset that can be protected by criminal law.
To substantiate the penal protection of the Environment, it is also used to affirm that the conservation of an ideal and natural living space is essential for future generations, who we cannot let their natural habitat become a plastic garbage can. Faced with those voices that could claim the protection of the "future life" as foreign to the law, it can be argued that the transcendence to the generation of the born is not foreign to the law, as evidenced by the institution of hereditary law, which grants rights even against the will of the deceased.
Based on the existence of collective legal rights, ESER considers that the law does not only care about living, but also how one lives. It is obvious; the law regulates ways of life and behaviors and shapes a certain form of social relations. Thus, the environment could be granted a supra-individual legal status, which would find protection in itself.
ENVIRONMENTAL LAW
As a legal discipline that is just beginning to take shape, we find within the law a new branch that is Environmental Law, which has not yet reached its maximum acceptance, not only in Cuba but throughout the world, this because not yet it is in the consciousness of all people how important this science is and the need that the world has that we focus much of our attention on it.
There is a diversity of authors who define what Environmental Law is, such as those who point out that “it is the set of techniques, rules and legal instruments informed by appropriate principles that aim at the discipline of behaviors related to the environment and the environment. ambient".
Looking at it legally, environmental law “is the set of legal norms that regulate human behaviors that can influence in a relevant way the interaction processes that take place between the systems of living organisms and their environmental systems, through the generation of the effects of which a significant modification of the conditions of existence of said organisms is expected ”.
According to what law means for us, which is a set of legal norms that regulate the conduct of men in society, we are going to consider what Environmental Law is, as a legal discipline created by a set of norms whose object is study the relationships between man and the environment that surrounds him.
Analyzing this concept we can say that it must be considered legal discipline for it to be given the importance that it requires, it must be made up of legal norms, since if we are talking about a right that must be sanctioned, it must have norms or rules in which we can adapt behaviors that can be considered as crimes.
Now referring to the fact that it will regulate the behavior of men in relation to the environment that surrounds it, we want to say that, according to the existing regulations, behaviors that are harmful to the Environment may be punished.
According to the definitions and concepts of Environmental Law, we can draw some characteristics from it, saying that it is a Humanist Law, it is dynamic, it is a national and international law, it is an important means for social change.
This last characteristic we must consider as the most important of those mentioned, since, in reality, Environmental Law is an indispensable faction or element to achieve a change in society and thus achieve what the country so urgently needs, the awareness of its citizens and excellent regulation on ecological matters. It is the main instrument for social change, since being the product of the economic and social transformation of the 20th century, it is the necessary instrument to respond to the ecological damage suffered by nature as a consequence of the economic activity of humanity. Concluding this we will say that Environmental Law will be an integral part of the legal and social order of the XXI century.
If it is considered that nature is also a good, it must be recognized that man performs significant transformations on it for his benefit, but also acquires the duty to respect the processes of nature and to support those of its recovery through concrete actions. Consequently, it has the obligation to refrain from harmful actions and to do, through the support of scientific research and applications of new technologies to processes or phenomena that occur in the environment.
This protection focuses on actions and behaviors whose performance injures something that by decision of the State is considered important to take care of and that is why the legal norms indicate certain cases whose execution by the individual, can injure that good that has been considered valuable and in the If it is specified, the corresponding legal consequence is incorporated into the normative description, this legal consequence is nothing more than Criminal Liability for damage to the Environment. Then, the disciplines of Law with which Environmental Law is linked must solve the problem of the capacity and effectiveness that they can acquire in the defense of the environment; One of the forms that have been taken for this purpose is the establishment in criminal matters of conducts that transgress that value. In consecuense,protection of the environment has become the end of criminal law.
ENVIRONMENTAL CRIMINAL LAW
Characteristic of Environmental Law is the multiplicity of relationships that it establishes with other branches, such as Criminal Law, penetrating them due to the multidisciplinary nature that is its own and that of other branches of Law, it also requires collaboration in the defense of the environment, which must materialize in useful, real and achievable instruments or actions, emphasizing that the defense of the environment does not lead to violations of the rights of individuals. From civil law he extracted the liability for damages and from criminal law its punishableness and conform what we now know as environmental criminal liability.
At present, there is no doubt that human freedoms, as well as life itself, are in danger due to the depletion of natural resources and it is from there that the legal system arises the problem of ensuring both economic development and preservation of balance with the environment.
With the inclusion in the Criminal Code of crimes that violate this value, the State reacts to the reality that violations of the right to a healthy environment are no longer exclusively dealt with in the administrative field, with minor punishments and of indifferent opinion of the population, since the repression that is exercised in this instance, concludes in the imposition of fines, relegating the repair of the damage to later term; but one must move from the payment of fines, towards a motivation that leads to respect for the environment due to the criminal threat.
Criminal law establishes that in order to demand criminal responsibility from the alleged culprits, the criminal types must be incorporated prior to the commission of the act attributed to the person and must ensure a description of actions establishing them as prohibited, verifying that the conduct displayed by them fits exactly with what the standard indicates; that is to say, that the Principle of Typicality is respected. All conduct that is included in a criminal law presupposes by that fact the affectation of a legal good and therefore requires that the injury to that good, have the sanction established by law and that its author be sentenced to possible reparations, for which that there are powers given to judges.
The analysis that a conduct is typical carries within itself the presumption that it is contrary to the law, unless there are certain circumstances that exclude criminal responsibility for the conduct displayed.
Once these assumptions have been exceeded, the next step in the analysis must be directed to the reproach made to the alleged infraction r, that is, a claim for the typical and unlawful act that is made to the author; this reproach is directed at those who, being able to choose to carry out the conduct in accordance with the law, do not do so and choose to transgress them (Libster 2000: 2004).
The mention of these elements is a brief approximation regarding the structure of the crime theory, which helps the judge so that, by proving the presence of these components, he is criminally responsible for the commission of the crime.
Of course, in the case of typical behaviors that threaten the environment, they must be analyzed and see if they fit the description established by law, since the absence of one of these elements will make the action become atypical and therefore endangers the care of the environment in terms of vanishing the responsibility and obligation of the author to account for these harmful actions and repairs.
At the same time, guilt refers to people who have both physical and mental conditions so that at a certain moment they can understand that their actions or omissions will have consequences if they decide to execute them and not to carry out the provisions so as not to assume the indicated legal consequence. In the field of environmental protection, it must also be verified that crimes against nature and the environment meet the elements described; otherwise, the responsibility of their authors is lost, strengthened by mechanisms of jurisdictional control.
ENVIRONMENTAL CRIMINAL LIABILITY
Environmental criminal liability is that which is derived from a conduct classified as a crime, and is specified in the application of a penalty for the willful or culpable act or omission of the author of one or the other, it is strictly personal, of restricted interpretation, of Non-retroactivity forbidden, of presumed voluntary nature (once the causal relationship between the executor or inducer and the result has been demonstrated), and is of public order.
Currently there is no doubt about the importance that the environment has in the life of man, due to the generation of resources it provides and because although it is a source of materials with which man satisfies needs, it also provides other elements that contribute to the human being fully develop his person, among which can be mentioned the beauty of the landscape.
Natural resources have become assets with characteristics similar to economic ones, insofar as they are accessible, useful and scarce. These aspects make the environment worthy of legal protection, since by integrating the community or humanity, they can only be protected by the applications of common standards, within which they show some effectiveness, the criminal law standards
Therefore, the source of the resources must be subject to guardianship, since as a complement to the personality, its significance is recognized from the Primary Norm to its development in the Secondary Laws and in regulatory norms, whether of an administrative or criminal nature, among others.
This form of protection is given by the different regulations that the Law must impose, since generally the activities of man generate repercussions in the environment; but the regulation on aspects that affect the environment must consider the rights of the people. In other words, the protection of certain assets cannot be achieved by restricting the exercise of others.
Assumptions such as sanctions are present in two of the spheres of Public Law, Administrative and Criminal, in which principles such as Legality and Typicity have full application. However, there are differences between the two, mainly in terms of the characteristics of the sanctions, the severity of which is manifest in Criminal matters and more than in Administrative matters.
In recent years, it has produced a legacy of advancement in technological processes and population growth, generating a growing demand for goods and services to supply the satisfaction of basic needs, which are obtained from the natural element of the environment, which day by day experiences a reduction in the recoverability to replay the extracted items.
Environmental Law seeks as a solution to the problem to establish the mechanisms with which the continuity of economic growth and development is possible, with the recovery of the environment, imposing on present generations the legal obligation in favor of future generations so that they are It guarantees that the riches that their predecessors enjoyed are perpetuated until the moment of their existence and the necessary use.
This implies that the use of resources is not carried out irrationally, a situation that is difficult because in many countries the use of goods provided by the environment is the only source of subsistence for truly disadvantaged sectors, in contrast to the use of resources of the element natural environment to achieve an elevation of the quality of life of other sectors, becoming more serious when the environmental issue gives way to other considered priorities, such as economic.
It is noted that the so-called sustainable development will never become a permanent or static model; on the contrary, the needs will be permanent, but their satisfaction with respect to the balance between nature and culture will depend on human ingenuity.
These arguments are taken up by Environmental Law, considered by many as a Social Law that reaches interests that transcend the private sphere, as well as because of its importance because it allows the perpetuity of resources for human development.
OTHER CONSIDERATIONS ON CRIMINAL LAW
What is a crime and where does its classification arise?
We know that crime is any conduct of man that is sanctioned by law, in the case of our work we are going to take crime as any conduct of man to the detriment of the environment that surrounds him, whether or not it is sanctioned by law, because in Currently and specifically in our law there are countless criminal behaviors in environmental matters that are not yet sanctioned by law.
For now, we are going to give some criteria of what is a crime with a generalizing character mainly: "the crime is the violation of a right based on the moral law". It is the action of a person, free and intelligent, harmful to others and unfair ”.
The Cuban substantive norm Law 62, Cuban Penal Code, in its article 8.1-2-3 includes the concept of crime which expresses:
- Any socially dangerous action or omission prohibited by law under the injunction of a criminal sanction is considered a crime. An action or omission that, even if it includes the elements that constitutes it, lacks social danger due to the scant nature of its consequences and the conditions, is considered a crime. In those crimes in which the maximum limit of the applicable sanction does not exceed one year of deprivation of liberty or a fine not exceeding three hundred quotas or both, the acting authority is empowered to, instead of remit the knowledge of the fact to the court, impose an administrative fine on the offense r, provided that the commission of the act shows little social danger, both due to the personal conditions of the offense r and the characteristics and consequences of the act.
When we speak of action or omission, we mean that these are the only two ways in which human behavior can manifest itself so that it can constitute a crime.
The action becomes a positive activity, that is, doing what is prohibited to do, this is a behavior that violates a prohibition rule, the omission on the contrary is a negative activity, this is to stop doing what should be done, that is, to omit obedience to a norm that imposes a duty to do.
Example: The Cuban Penal Code in the Fifth Section, “Contamination of the Waters and the Atmosphere” Art. 194 manifests unlawful conduct that can take place by action or omission, being punished with deprivation of liberty from three months to one year or fine of one hundred to three hundred installments, provided that they do not constitute a crime of greater gravity, the following:
- Action: throw objects or substances harmful to health into drinking water; Contaminate surface or groundwater supply basins that are used or may be used as a source of supply for the population; Omission: fail to comply with the legal provisions aimed at avoiding the contamination of the atmosphere with gases, substances or any other matter harmful to the health from industries or other facilities or sources;
Both aspects imply a manifestation of will that when carried out would cause a change or danger of change in the outside world, which for us would translate into a crime.
From these definitions we can break down the crime and take out some essential elements so that it is configured as such, which are:
- The crime is a human act; an evil or damage is not a crime if it does not have its origin in human behavior. The acts of animals, fortuitous events, as foreign to human activity, do not constitute crimes. Such a human act must be unlawful, it must be in opposition to a legal norm. In addition to such opposition with the legal norm, it must be a typical act. Not every unlawful action constitutes a crime, but it must be a criminalized unlawful act. The act must be guilty, imputable to fraud or intent or fault or negligence; That is, it must be in charge of a person. The human act must be punished with a penalty, if there is no penalty, there will be no crime.
Now, reinforcing the above, we can define the crime in a more complete way, saying that: it is the unlawful action, typical, imputable, guilty and punishable, in the objective conditions of punishable.
This can be explained as follows by saying that:
- the action is the physical element of the crime, the unlawful action is the one that is opposed to the cultural norm; the typical action is the one that conforms to the legal type; the imputable action is that attributable to a subject in view of his criminal capacity, the guilty action is the imputable and responsible, that is, what should be reproached to the subject, the punishable action is the one that is punished with a penalty and therefore should be punished.
These elements described are what we will call positive of the concept of crime.
Once all the elements of the crime have been analyzed, we come to the conclusion that since any of these elements are missing, it would not be possible to speak of a crime, so we realize that in our country it is still not possible to speak with conviction that crimes exist environmental, since not all the elements are given; As can be seen in the element indicated in section “b”, the action must be in contradiction to a legal norm and if we analyze it from the point of view that in Cuba there are no such legal norms (as they should), then it cannot There is a crime, since an act that is not regulated in any legal provision cannot be punished.
Considering the foregoing in our Criminal Code Law 62 of 1987, it establishes in its article 2.1-2 a very important principle for Criminal Law, (Principle of Legality), in the following terms:
- Only actions expressly provided as crimes in the law can be punished, prior to their commission. No one can be imposed a criminal sanction that is not established in the law prior to the punishable action.
As I had already mentioned, criminality is one of the main elements of the crime, if there is no criminality, it is impossible to configure it. To understand this more clearly, we are going to define typicality as: The adequacy of a specific conduct with the legal description formulated in abstraction, that is, it is the adequacy or coinage of a fact to the legislative hypothesis.
The crime is always translated into human behavior, without it the existence of the crime is impossible, but this is not all that must be given for the crime to be configured, since not all human behavior means a crime; human facts must also be typical, unlawful and guilty.
ENVIRONMENTAL CRIME
First of all, it should be noted that the concept of Environment encompasses all the components of the planet, biotic and abiotic, including the air, covering all layers of the atmosphere, water, land, including soil and resources. minerals, flora and fauna and all the ecological interrelationships between these components.
Following this line of thought, we can say that our Law 81 of July 11, 1997, in its Chapter II "Basic Concepts" in its article 8 states that: For the purposes of this Law, the Environment is understood as a system of abiotic elements., biotic and socioeconomic with which man interacts, while adapting to it, transforming it and using it to satisfy its needs.
From the eighteenth century, the responsibility of those who broke a law became personal, leaving behind the absurd ideas of punishing animals for crimes committed; In this way, considering that only man is the subject of a crime, since only rational beings have the capacity to stop committing a crime, only one person can be criminally responsible for an action, since only in him is the unity of conscience and will that constitutes the basis of accountability.
Carrying out a doctrinal analysis prior to the present work, I decided that this concept fits my claim of what is defined by environmental crimes, the doctrine does not have a specific concept of environmental crime defined and it is understandable, Criminal Law has not gone to the par of the development of Environmental Law, therefore we can refer that:
Environmental Crime: these are all our attitudes and behaviors that deteriorate the Environment (both natural and built) and this is nothing other than the deterioration of ourselves, since by destroying (consciously or unconsciously) the environment, we destroy our source of life and consequently we do ourselves irreversible damage.
Law 81 "On the Environment"; In its Art. 75, it refers that the socially dangerous actions or commissions prohibited by the Law under the injunction of a criminal sanction, which violates the protection of the environment, will be classified and sanctioned according to what is provided in the current criminal legislation.
However, our Penal Code does not provide for the criminalization of the so-called environmental crime, it only raises some unlawful conducts that injure the environment associated with the protection of health, personal property and the national economy.
In this way, the economic development necessary to respond to the needs of the present generation should not compromise the ability of future generations so that they can respond to their own needs, in accordance with the principle of sustainable development, set out by the Bruntland Commission in 1992, inasmuch as the environment is taken as a collective interest.
Law 81 to which we have already referred supra, in its article 8 states that: For the purposes of this Law it is understood by: Sustainable development, process of sustained and equitable elevation of the quality of life of people, through which seeks economic growth and social improvement, in a harmonious combination with the protection of the environment, so that the needs of current generations are met, without jeopardizing the satisfaction of the needs of future generations.
There are other crimes that are prosecutable ex officio or by prior complaint, which can be made by anyone who has knowledge of the crime and in which the authority must act immediately regardless of the will of the offended.
ENVIRONMENTAL PROTECTIVE ACTIVITY AFTER THE REVOLUTIONARY TRIUMPH
With the revolutionary triumph on January 1, 1959, the revolutionary government initiated a series of great changes, aimed at the transformation of an entire political, social and economic system, in which, in relation to nature, the anarchic laws of the production for consumption and obtaining large profits. From the very beginning, the revolutionary government began to apply measures aimed at protecting the environment, such as: reforestation or reforestation plans and the declaration of protected areas.
Of vital importance were the 1st and 2nd Agrarian Reform Law, an example of this, in the first it appears that the State would reserve on the lands of its property necessary forest areas for national parks in order to develop forest wealth, etc.
In April 1967, the beginning of a stage of forestry institutional organizational adjustment was marked with the creation of the National Institute for Forest Development and Use (INDAF) and the Ministry of Education began to take measures to train the technical personnel required for this activity..
Despite the efforts made by the revolution during this period, new ones were added to the environmental problems inherited from the past, generated by the need for the impetuous development of the economy and aggravated by social ignorance in the use and care of nature. Its gradual degradation led the state institutions to become aware of the problems affecting the environment in the 1970s and measures were taken to protect the environment.
In 1975, as a result of the First Congress of the Communist Party of Cuba, the first guidelines related to the policy of protection and improvement of the environment and the national use of natural resources were drawn up. As a result of what was expressed in this Congress, the Constitution of the Republic was promulgated in 1976, where the preservation of the environment was established as the duty of the State and citizens. Later, in 1992, after the reform process to the Magna Carta, Cuba became the first country in the world to express the link that the environment has with sustainable development.
In 1977, through Decree Law 118, the National Commission for the Protection of the Environment and the Rational Use of Natural Resources (COMARNA) was created, which was the governing body for this activity in Cuba until 1994, when it was extinguished with the Right Law 147 of 94 that created the Ministry of Science and Technology and Environment by the restructuring that was carried out in the organisms of the Central State Administration. In 1981, Law No. 33 on the Protection of the Environment and the rational use of natural resources was enacted, thus achieving special relevance all the legislative efforts in favor of the protection of the environment. This Law has been supplemented with subsequent legislation.
In general terms, the state of the Cuban environment on an international scale does not present a critical situation, although there are numerous problems to be solved that largely addressed it. They include:
- Solid waste collection Drinking water supplies Urban waste treatment Maintenance of aqueducts and sewers Soil erosion, which according to statistical data more than 2 million hectares show notable erosion, concentrating these in four areas of the country mainly: Pinar del Río, La Llanura de Cauto, Guantánamo - Barroca, Camagüey. The causes of this erosion are mainly due to indiscriminate risks, excess fertilizers, the use of excess heavy equipment, etc. The indiscriminate felling of trees, using them as natural fuel due to the lack of them, caused by the period special, which makes the introduction of energy forests necessary.The development of the mountains and reforestation, since there is no systematic reforestation and there has been a decline in the monitoring and attention to the positions planted The use of Cuban crude oil due to the presence in it of high levels of sulfur, which causes a decrease in air quality Forest fires according to statistical data between the years 1981 - 1994 there have been more than four thousand fires due to multiple causes, among them: due to negligence, both in the company and in the transportation of fuel, due to the participation of individuals, due to the irresponsibility of forest rangers, etc. In the development and boom of tourism, this has caused the clearing of forests in the construction of roads, airports and hotels in natural reserve places such as,With the construction of the Cayo Coco airport, one of the most important mangroves in the Caribbean has suffered an affectation that can extinguish it The lack of protection of the flora in the mountains, due to the fact that they present around 70% of endemism and Because they are very fragile ecosystems, they are becoming extinct. Dairy and meat waste from the food industry and hospital waste are not given adequate treatment. Waste from Agroindustrial Sugar Complexes continue to be a source of environmental pollutants, regardless of whether in many of them the residuals are used. The indiscriminate extraction of areas for construction.The indiscriminate extraction of corals due to the high price that they have in the elaboration of jewels in the production of a substance that is an excellent fertilizer for the reproduction of flora.The situation that our bays present specifically that of Havana, Santiago, Nipe and Nuevitas, they have high contamination due to the dumping of residuals in them. Protected areas present a great problem throughout the country since many of them do not have administration and are not attended with due concern.Protected areas present great problems throughout the country since many of them are unmanaged and are not cared for with due concern.Protected areas present great problems throughout the country since many of them are unmanaged and are not cared for with due concern.
Despite all the problems that are present in the Cuban reality regarding the environment, we cannot ignore the achievements that we have had after the triumph of the revolution.
Among those that stand out:
- The deforestation process has been largely halted and today 20% of the territory is covered by stable forests of 15, 20 or more years of life. The Manatí plan has been a fundamental impulse in what has been achieved: when the revolutionary triumph all of the sugar mills lacked facilities for the treatment of their waste, at the moment most have facilities and are taking advantage of them although not enough and they continue being a polluting source. Regarding the generation of electricity, regardless of the economic problems we face, it reaches 94% of Cuban households, which makes some enumerators of the environment disappear a bit such as lanterns, tufts, etc. health is indisputable in our country, we have many examples of them,Recently, our country was awarded a certificate for being a pioneer in the eradication of poliomyelitis. The current food progress has favored our environment a little, the development again of traditional agriculture with the massive use of traction animals and windmills, Together with this, advanced techniques such as biological controllers, have helped to protect the fertility of the soils. The Turquino Plan has been fundamental to preserve the environment because it has not only improved the quality of life of people but has also had the exodus from mountainous areas and reforestation and promotion of these areas and a greater interaction between man and nature have grown.The development again of traditional agriculture with the massive use of draft animals and windmills, coupled with this, advanced techniques such as biological controllers, have helped to protect the fertility of the soils. The Turquino Plan has been fundamental to preserve the This is due to the fact that not only the quality of life of the people has improved, but also the exodus from the mountainous areas and the reforestation and promotion of these places has increased, as well as a greater interaction between man and nature.The development again of traditional agriculture with the massive use of draft animals and windmills, coupled with this, advanced techniques such as biological controllers, have helped to protect the fertility of the soils. The Turquino Plan has been fundamental to preserve the This is due to the fact that not only the quality of life of the people has improved, but also the exodus from the mountainous areas and the reforestation and promotion of these places has increased, as well as a greater interaction between man and nature.The Turquino Plan has been fundamental to preserve the environment because it has not only improved the quality of life of the people but also has had the exodus of the mountainous areas and the reforestation and the promotion of these places have grown and a greater interaction between men -nature.The Turquino Plan has been fundamental to preserve the environment because it has not only improved the quality of life of the people but also has had the exodus of the mountainous areas and the reforestation and the promotion of those places has grown and a greater interaction between men -nature.
Our root country of the Rio Summit, carried out the process of adaptation of the referred "Agenda21", a process that culminated on June 5, 1993 within the framework of the celebration of "World Environment Day".
This program is the Cuban adaptation to the objectives, guidelines and goals proposed in Agenda 21 and they are inserted within the country's development strategy to overcome the difficulties created by the international economic situation and the economic blockade imposed on our country.
In the creation of this program, the majority of state mass organizations and institutions, scientific associations, whose functions or institutional responsibilities are directly linked to the environment and development issue participated.
In addition, there have been a series of conferences, debate events to achieve an environmental education that is very important for the country, environmental groups and chairs have been organized in educational centers for these purposes.
THE CRIMINAL LEGAL PROTECTION OF MATTERS RELATING TO THE ENVIRONMENT IN CUBA
Perhaps in the centuries preceding the present one, it would have been exceptional to address the issue of environmental pollution in Cuba, taking into account the scarce existing industrial development.
At the beginning of this century the sugar mills and other industries increased, although in isolation, and it was not until the triumph of the revolution in 1959 that the multifaceted industrial development increased considerably, the legal protection of the company became increasingly necessary. environmental protection of pipelines derived from irresponsible attitudes regarding the dumping of waste from industries towards the external environment, be it air, land or water.
Criminal legal protection for environmental issues begins to be regulated in Cuba with the Social Defense Code. To which he introduced modifications of Law No. 1249 of the revolutionary government promulgated on June 23, 1973.
The Social Defense Code
In its title IX “Crimes against life and bodily integrity and health”, in section I it sanctioned the crime of Propagation of epidemics. In title VIII "Crime against property and against the national and popular economy", in sections XV, XVI, XVII and XX included conducts such as the violation of norms to prevent and combat diseases and pests of animals and plants, pollution water, the devastation of forests (14), illegal fishing and illegal hunting.
With the enactment by the National Assembly of People's Power of Law 21 of 15 of 2 of 1979. Penal Code, it greatly surpassed the repealed Code of Social Defense regarding this issue, introducing important innovations and modifications in the conceptions of its treatment.
In its title III "Crime against collective security
In its chapter VI, it included the crime of “Violation of the norms referring to the use and conservation of radioactive substances to other sources of ionizing radiation, this constitutes a new criminal figure in our criminal law, whose inclusion justified by the increasing use of the nuclear energy.
In the title itself in its Chapter VII “Crime against public health in its section I the crime of propagation of epidemics appeared regulated, from which some behaviors were excluded that due to the socio-economic transformations operated in Cuba it was no longer necessary to title criminally.
In section VI of this own Chapter the "Pollution of waters and atmospheres" was regulated, this was one of the fundamental innovations due to the fact that humanity begins to worry about these problems. In its section VII “Other conducts that imply danger to public health”, those who in one way or another transferred contaminated or polluting substances or objects with substances or objects.
In title V Crime against the national economy
Chapter XVIII "Violation of the rules to prevent and combat diseases and pests of animals and plants" reproduced in a general sense the content of the provisions of the Code of Social Defense.
In its chapter XIX "Water Pollution" it maintained in essence what is established by said Code regarding this matter and the dumping of substances harmful to the economy in the maritime economic zone of the republic appears for the first time as a crime.
In Chapter XXII “Illegal activities regarding the natural resources of the territorial waters of the Republic”, which responded to the need to preserve the natural resources framed in this area.
In the second section, “Illegal Fishing” is typified, and in Chapter XIII, “Illegal Hunting”, which similarly regulated these figures contained in the previous Code.
Law No. 1249 of June 23, 1973
With the promulgation of Law No. 1249 of June 23, 1973, articles 556 to 560 of the Social Defense Code are modified.
Being called Chapter VI, "Crime against the Popular Economy", section 16 includes the crime of "Water Pollution", this crime protected the interests of our economy, punishing "whoever throws objects or harmful substances into rivers, streams, wells, lagoons, canals or other water reservoirs destined to water livestock or birds, endangering their life or health ”, with a penalty of 31 to 180 trips of p / l or a fine of 31 to 180 fees or both. It was also subject to the same sanction “whoever throws objects or harmful substances in fishing waters or in aquatic species hatcheries and the sanction is aggravated if as a result of the aforementioned facts“ damage to the health or death of the referred species ”, Being then the sanctioning framework from 6 months to two years of deprivation of liberty.
This legal type was limited to repressing the dumping of discharges in places that served as watering places for animals, in fishing waters or breeding places of species, without penalizing other types of behaviors of this nature that lead to prejudice to the health of people, such as the contamination of drinking water basins; What was later penalized by Law 21 of February 15, 1979, this crime continues to be maintained under the title “Crimes against the national economy”, penalized more rigorously in the first two cases of dumping harmful substances in places of animal watering holes or in fishing waters with a framework of three to nine months or a fine of 100 to 200 quotas or both and if death or damage occurs in the referred species, the penalty is increased from 6 months to three years.
Law 21 of 1979
Given the importance of the conservation of the nation's cultural heritage, it was necessary to establish its penal protection in Law 21 of 1979.
Regarding the crime of water pollution, as can be seen, the wording given in the Social Defense Code is almost identical to the statement of Law 21, except that the latter included the innovation consisting of, "Whoever spills or discharges harmful substances for the national economy or waste containing such substances in the territorial waters or in the maritime economic zone of the republic, incur a fine of 1000 to 10 000 quotas.
It is noteworthy that Law 21 considered "Forest Devastation" and "Illegal Hunting" as a crime. These figures were not included in the current Criminal Law and were considered as administrative infractions. We believe that its non-inclusion as a criminal offense constitutes a limitation of the Current Code, since it removed from penal protection two very important components of the environment and the country's natural resources.
Law No. 62 Penal Code
On April 30, 1988, Law No. 62 Penal Code came into force, which repealed Law No. 21. This was produced by the decriminalization and adjustment of the criminal legislation, to the seriousness of the criminal acts and to an adequate individualization of the sanction.
Thus, the current Code, regarding the matter of our work, establishes criminal protection for a whole series of conduct infringement that causes damages to the natural environment.
The current Penal Code (Law 62) includes the crime of Water Pollution, which has been drafted in the same way as Law 21 preceding the current one, only that in the first sentence the maximum sanctioning limit was raised to one year and the maximum limit of the fine up to 300 quotas and in the second paragraph, the maximum limit was reduced to two years, keeping the wording of the articles the same.
As can be seen, in this crime the active subject can be any person who incurs in the action of dumping the harmful substance, not only in the case of a crime of danger, but also of results, by punishing in its basic type whoever throws the dumping (danger) and in the aggravated type, the death or damage to the health of the species is caused by the dumping (results) in addition to the other article that protects from the spill and dumping of harmful substances in the maritime economic zone of the Republic in territorial waters.
There are then two titles in the code that regulates ecological crime, the title "Crime against collective security" and "Crime against the national economy"; both titles protect different legal objectivities and the respective articles in each case have obviously common elements
In title V “Crime against the national economy”, there are also other chapters that frame conducts that affect the environment, in its chapter XIII it includes the behaviors that constitute infractions of the rules to prevent and combat diseases and pests of animals and plants.
In chapter XVII “Illegal activities with respect to the natural resources of the territorial waters and the economic zone of the republic. Article 241 of Decree Law 175/1997 establishes the sanction for the conduct of “Illegal exploitation of the economic zone of the Republic and Article 242 of Law 62 sanctions illicit fishing.
It is noteworthy that this chapter on illegal fishing is framed for specific people, only foreigners can be active subjects of this crime, that is, nationals are not the perpetrators of this crime, so we consider it necessary to regulate the legal action of the same to avoid damages in this area. Therefore, the figure of "Poaching" carried out by nationals in fluvial, acustic and maritime waters should be included in the criminal typology.
Title VI "Crime against cultural heritage" punishes conducts that please it in accordance with constitutional principles and Laws No. 1 and 2 of 1977.
Criminal law cannot foresee all infractions that affect the quality of our environment, since many of them occur permanently and in small proportions and their consequences are precisely those that most affect ecosystems, so they must be fundamentally combative with administrative and preventive measures.
The Cuban legislator should not take long to analyze the criminal treatment of the ecological crime that must be framed in an independent title where all the legal assumptions that protect the environment are not reflected in a unique way, which perhaps could be called, Crime Against Ecology.
The social interest to protect the environment must take precedence over economic or other interests; Protecting the life of the planet and its species must take precedence over other interests.
Professor Miguel Langón Cuñarro “The criminal protection of the environment. Dogmatic aspect and legislative techniques "Not without express reason that in these cases (referring to ecological crime)" the repressive route is necessary in order to achieve prevention, both general and individual, of contamination "and" the desire to seberize the punishment of environmental offenders with custodial sentences ”There is no doubt that ecological crime must be maintained, persecuted and strictly repressed. We cannot settle for passively contemplating the gradual destruction of nature; it is necessary to put it into practice since as industrial development increases, the penalization of these conduits will become more important.
CONCLUSIONS
After carrying out this work, we reached the following conclusions:
- That the Constitution recognizes the environment as a social value; It is not enough, for this to automatically lead to criminal law, but it will be necessary to analyze whether it is necessary for the asset-value, Environment to be criminally protected as a legal asset The legal asset Environment is a complete or synthetic legal asset, unifying other traditional assets, the current socioeconomic situation has led to the need to configure it as a specific asset to be defended with autonomy Environmental Law, which has not yet reached its maximum acceptance as a legal discipline that is just beginning to be configured, because it is not in the consciousness of the whole of society how important this science is and the need that the world has that we focus much of our attention on it.The protection of the environment has become the end of Criminal Law, one of the forms that have been taken for that purpose is the establishment in criminal matters of conducts that transgress that value.We can say that environmental criminal responsibility is one that is derived Of conduct classified as a crime, and is specified in the application of a penalty for the willful or culpable action or omission of the author of one or the other, is strictly personal The crime we know is any conduct of man that is sanctioned by law We are going to take crime as any conduct by man to the detriment of the environment that surrounds him, whether or not it is sanctioned by law, because currently and specifically in our penal code, there are criminal conducts in environmental matters, which have not yet been punished by the law.Despite the efforts made by the revolution during this period, new ones were added to the environmental problems inherited from the past, generated by the need for the impetuous development of the economy and aggravated by social ignorance in the use and care of nature. This has led to awareness by state institutions of the problems and effects of the environment and they begin to take measures to protect the environment.This has led to awareness by state institutions of the problems and effects of the environment and they begin to take measures to protect the environment.This has led to awareness by state institutions of the problems and effects of the environment and they begin to take measures to protect the environment.
RECOMMENDATIONS
In view of the future inclusion in the Cuban Penal Code of crimes against the Environment, according to the express approval of the Assembly of People's Power, and taking into account that many of its characteristics are beyond those common to other categories of crimes, which corroborates the specificity of criminal regulations in environmental matters. We proceed to give a series of useful recommendations when it comes to their inclusion in the Current Penal Code.
1. In environmental matters, crimes can be Crimes of Danger or Harm
The doctrine advises that: Crimes against the environment be typified by means of danger formulas, which are related to the nature of the legal asset to be protected, which makes it permissible to advance the punishment barriers to phases prior to the injury of the legal interest.
This decision is coherent, as QUERALT JIMÉNEZ points out: «if you think about the great destructive potential of some behaviors: waiting for the verification of the damage, in addition to being useless in terms of reparation because it is impossible, would have an undesired effect; the current risk of deterioration of the environment would increase exponentially, since only the production of the result would be punishable.
It must be taken into account that in environmental crimes, for the most part the crimes are culpable, that is to say, that although the result was not desired, the action was carried out voluntarily, be it due to negligence, recklessness or non-observance of Legal Provisions.
Guilt: In crimes against the environment, fraudulent actions must be punished, which are those whose result was foreseen and wanted, as well as culpable actions, those whose result was not wanted but could be foreseen and was not foreseen.
Crime of public action: The environmental crime is a crime of public action, if we take as reference Article 28 of the Organic Law of the Environment of Venezuela, "the criminal action that arises by virtue of the facts sanctioned in the aforementioned law, is public and proceeds by complaint or ex officio ”.
Active subject: He is the one who performs the action described in the legal type thus violated the protected property; Environmental crime, in principle, is a type of undetermined active subject, since it does not require any special circumstances to adapt its conduct to that specified in the model.
Taxpayer: There are two main theories in this regard: the taxpayer is the owner of the injured or endangered legal asset, or is the one injured by the crime. In environmental crime, the taxpayer is the community.
Material object: In the case that concerns us, the material object can be one of an element of the environment, any component of the wild fauna, not the environment in general, as an abstract entity protected.
The environment as a legal asset: The legal object of the crime is that asset that is criminally protected and threatened or injured by unlawful conduct.
In modern penal codes, crimes are classified according to the values they protect, that is; According to the legally protected good, in this way, the criminal law ensures by means of the sanction means of the sanction the protection of the assets recognized by the legislator as worthy protection.
Legal or moral persons: The criminal responsibility for behavior carried out from a company action must be redirected towards the persons who act on their behalf, as the only criminal imputation centers, however, it is legitimate to consider the legal person as a "center of secondary imputation ”regarding the consequences of an extra criminal nature derived from the behaviors produced from an action on their behalf.
In principle, it is clear that the highest level of polluting activity for the environment comes from industry, whose toxic waste can be extremely harmful to the environment.
Blank criminal law: Blank criminal laws or open laws to determine those types whose factual assumptions are established in another body of laws.
As the teacher BRAMON ARIAS states: "The blank law is limited to establishing that a type of conduct that must be punished with a certain penalty, delegating the structuring of the punishable action in another provision"
We can conclude that the country's environmental problems cannot be solved through criminal sanctions such as going to jail or paying a fine, but these are undoubtedly necessary; We would be very bad if the judges and prosecutors replace the Administration, and even less to suppose that the solution is in the hands of others. Each of us is called to act in favor of our survival, of the rational use and exploitation of Natural resources to guarantee their conservation and permanence over time.
BIBLIOGRAPHY
HASSEMER, HERZOG, ALBRECHT and in Spain by MUÑOZ CONDE and DE LA CUESTA AGUADO, who consider that collective legal rights constitute a clear example of the expansionist nature of Criminal Law.
ALVARADO MARTÍNEZ, Israel, Doctor of Law from UNAM, Professor at INACIPE. Vine. "Some considerations around environmental crimes", September 21, 2006).
HURTADO POZO, José. Criminal Law Manual. General Part, reprint of the second edition, Eddili, Lima, 1987, p. 35;
MUÑOZ CONDE, FRANCISCO. Criminal Law and Social Control (on the motivating function of criminal law), in: PRADO SALDARRIAGA, Víctor / BOJORQUEZ PADILLA, Uldarico & Solís Camarena, Edgar. (Comp.). Criminal law. General Part (Teaching Materials), first edition, Edit. Grijley, Lima, 1995, pp. 25 et seq.
MIR PUIG, SANTIAGO. “Legal Good and Criminal Legal Good as limits of ius puniendi”, in: Criminal Law in the Social and Democratic State of Law, Edit. Ariel, Barcelona, pp. 159 et seq.
CARO CORIA, Dino Carlos, Environmental criminal law. Crimes and Typification Techniques, first edition, Edit. Gráfica Horizonte, Lima, 1999, p. 260
QUERALT JIMÉNEZ, Joan, op. cit., pp. 552-553; TERRADILLOS BASOCO, Juan, Criminal Protection of the Environment.
CONSULTED LEGISLATION
Law 62 dated December 29, 1987, Updated Penal Code, Editorial Ministry of Justice, 2003.
Law 5 is dated August 13, 1999, Updated Criminal Procedure Law, Editorial Ministry of Justice, 2003.
Law 81 dated July 11, 1997, Environmental Law, GO Ext. July 11, 1997.
Criminal Law of the Environment, Republic of Venezuela, published in the GO of the Republic of Venezuela No. 4358 of January 3, 1992.
Criminal Law of the Republic of Brazil, Law No. 9.605, of February 12, 1998
Decree Law No. 802 dated April 4, 1936, Code of Social Defense, official publication, Ministry of Justice, 1973.
