(Richtlinienvorschlag zum strafrechtlichen Schutz der Umwelt – Richtlinie 2008/99/EG – Çevre Ceza Hukuku AB Yönerge Taslağı 2008/99 Yönergesi Mülgası)
In the fight against environmental crime, including climate protection, the Directive Proposal has made a number of proposals, focusing on the main field of criminal law, from substantive criminal law to criminology.
One of the most important issues that the Directive Proposal draws attention to in terms of substantive criminal law is that the penalties for environmental offences are far from deterrent and that the penalties must be increased. It would not be correct to say that this determination is valid for German environmental offences, but it is accurate for Turkish environmental offences.
The penalty for the offence of intentional pollution of the environment is imprisonment from six months to two years. In the case of qualified forms of the offences, the amount of the penalties increases, but even in the most severe cases, the penalty is stipulated to be not less than five years. In the offence of pollution of the environment by negligence, the penalty is far from being an effective deterrent instrument, since the penalty in this offence is not a freedom-restrictive penalty, on the contrary, it is only a judicial fine. There are only two offences in the Turkish Criminal Code that only provide for a judicial fine, and negligent pollution is one of them.
The Commission wants countries to revise their legal arrangements in many other aspects of substantive criminal law. For example, punishing the attempt in environmental crimes, punishing the participants in these crimes, the extension of limitation periods for environmental offences, stipulating sanctions for legal persons, enacting new types of crimes related to dangerous acts that create threats on the environment as well as crimes of result having severe consequences such as “ecocide” are among the suggestions made.
In addition, it was suggested that the fight against environmental crime should be made more effective in criminal proceedings and that cooperation between Member States should be facilitated in the investigation of crimes. The Commission criticises the lack of reliable statistical data on environmental crimes in the Member States. An effective fight may be carried out only on the basis of healthy statistical data. Data flow should be ensured through co-operation in investigations between countries. The Commission states that the fight against environmental crimes should be considered within the scope of the fight against organised crime and points out that appropriate criminal procedure measures should be put in place. One of the most important of these measures is the introduction of measures such as the appointment of secret investigators, technical surveillance, etc. also for environmental crimes. One of the most meaningful proposals in the field of criminal procedure law is the inclusion of expanding provisions for participation in the proceedings concerning environmental crimes. Member States shall ensure that members of the public concerned have appropriate rights under their national legal systems to participate in criminal proceedings.
Which improvements need to be made, particularly with regard to the enforcement of corporate responsibility?
Since the 2008 Directive, the Commission has been demanding that legal persons should also be held responsible for environmental offences and that serious measures and sanctions should be taken against them. The Turkish Criminal Code provides that measures can be taken against legal persons only in the qualified form of the offence of intentional pollution of the environment. In the simple or pollution by negligence offence, there are no measures against legal persons.
In Turkish criminal law, since the imputation of fault can only be made against real persons, it is not possible for an abstract entity such as a company or an institution to commit an offence on its own. In Türkiye, a person behind the offence is sought. On the other hand, it is possible to impose administrative sanctions on legal entities in case of misdemeanours.
In the case of legal entities, where a company director or employee commits an offence by acting on behalf of the company, criminal law instruments should be developed both to identify the responsible person and to ensure that the responsible person is punished. In addition, taking into account the recommendations of the Commission, the types of measures to be applied in case of offences committed on behalf of a legal person should be developed in a way to ensure deterrence. At this point, the Commission proposes some types of measures that can be applied to Member States.
The most effective way to prevent the commission of offences on behalf of legal entities is the development of primary prevention strategies. In this regard, it is important to develop external auditing by the state and mandatory corporate internal auditing (like compliance) mechanisms. Emission trading practices, especially those developed within the scope of combating climate change, also pave the way for the emergence of new types of corruption. For this reason, it is necessary to develop new types of offences based on action-hazard offences for violating the measures and obligations here, and company-based special sanction types specific to these offences. These sanctions should not only be nationally based, but also internationally based in a way to enable countries to demand the punishment of those involved.