An effective new regulatory tool has been
added to Israel’s enforcement toolbox
Environmental legislation in Israel is
enforced through administrative, civil
and criminal measures. In fact, many
environmental laws empower the
Ministry of Environmental Protection to
impose administrative orders such as
temporary and permanent shutdowns
of a business, cleanup and remediation
orders and permit revocation in order to
prevent anticipated hazards or to stop
and remove existing hazards. Yet, when
administrative measures fail, recourse
to criminal proceedings has often been
necessary.
Criminal response is an especially
significant deterrent since it personally
affects those who are prosecuted and
carries a social stigma. However the
criminal process itself – from investigation
through indictment to proof beyond
a reasonable doubt – is lengthy and
complex. The high evidentiary threshold
for criminal prosecution, which brings in
its wake a criminal record, social stigma
and possible imprisonment, is difficult to
reach.
In recent years, an effective new
regulatory tool has been added to Israel’s
enforcement toolbox – the administrative
financial sanction.
Introducing Administrative
Sanctions to Environmental Law
First used by financial regulators such as
the Israel Securities Authority, the Israel
Money Laundering and Terror Financing
Prohibition Authority and the Anti-Trust
Authority, administrative financial sanctions have been increasingly used by
regulators in Israel in recent years, including environmental regulators, especially
in cases where violations are associated
with economic benefit. Nine environmental laws – in such fields as recycling,
hazardous substances, marine pollution,
pollutant release and transfer registers
and asbestos – already incorporate provisions on the imposition of such sanctions,
and new bills with similar clauses are in
the pipeline in additional areas, including pest control operators, contaminated
land, construction and building waste,
contingency plans for preparedness and
www.environment.gov.il
response to combating marine oil pollution, and a ban on the free distribution
of lightweight carrier bags. The intention
is to introduce variable administrative
fines for many environmental offenses in
order to make enforcement more timeefficient and monetary sanctions more
proportionate to non-compliance.
What is an Administrative
Financial Sanction?
An administrative financial sanction
is a monetary fine imposed by an
administrative authority for breach of a
provision of a law (which is designated
as one for which such a sanction
may be imposed). When it comes to
environmental legislation, fixed amounts
are set for each type of offense, including
continuing or recurring violations, with
no discretion given to the administrative
authority to decide on the amount of
the sanction. However, grounds for
possible reduction are set in reduction
regulations, which are based on specific
criteria including, for example, absence of
previous violations, proactive reporting
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Haifa Bay/Photo: Ilan Malester
ADMINISTRATIVE FINANCIAL
SANCTIONS: ISRAEL’S NEW
ENFORCEMENT TOOL
by the offender, implementation of
steps to prevent future violations and,
in the case of individuals, personal
circumstances. Similarly, warnings of the
intention to impose a sanction are issued
under the law to allow the offender the
right to submit his arguments prior to the
imposition of the sanction.
Criminal Proceedings vs. Sanctions
Like criminal proceedings, administrative
sanctions are designated to achieve
both compliance and deterrence. Unlike
criminal proceedings, they are faster, less
costly and more effective.
One of the main differences between
a criminal process and a sanction is
duration. Whereas the criminal process is
lengthy and difficult, the sanction process
is much shorter – usually extending
from a few months to a year. Unlike the
long delay between the offense and the
punishment in the criminal justice system,
which reduces deterrence, the short time
period of the sanction process highlights
the link between deed and punishment.
an administrative sanction chapter,
and on the Ministry of Environmental
Protection’s website, as stipulated in more
recent legislation. This is due both to the
importance attributed to transparency
by the competent authority and to the
impact of “naming and shaming” as
a means of motivating the regulated
entities to comply with the law.
The decision on the route to take in case
of environmental offenses is based on
the type of offense, its recurrence, impact
and gravity. The trend today is for criminal
proceedings to be instituted in more
severe cases of environmental offenses
and for financial sanctions to be used in
other cases when warranted.
The Administrative Sanction:
An Evolving Procedure
Administrative sanctions allow regulators
to deal more proportionately with
violations of environmental legislation,
without need for indictment, criminal
record and social disgrace, although
financial sanction amounts are often
higher than fines imposed by the courts,
says Att. Dalit Dror, the Chief Legal
Advisor to the Ministry of Environmental
Protection.
“Unlike criminal law which developed
over hundreds of years, this is a new
area of law, which is still evolving – and
a uniform format for this kind of sanction
has yet to be created and shaped. We are
learning from other regulators who use
this sanction while teaching others based
on our own experience.”
Att. Dror goes on to emphasize that “special care must be taken when initiating
an administrative sanction process because the process is not adversarial, and
the sanction is imposed by the regulator
rather than by the court. However, in all
cases, offenders are informed about the
intent to impose a sanction, have the opportunity to present their arguments, and
may petition the court against imposition
of the sanction. When used with care,
proportionate administrative sanctions
can play a major role in promoting environmental compliance.”
Secondly, the discretionary powers in
the two types of enforcement systems
differ. Unlike the discretion of a court in a
criminal case, the sanction is imposed by
a competent administrative authority and
its amount is not open to the discretion
of the authority. This requires the offense
to be clear-cut and easily proven –
for example, was an annual report
submitted or not – without a mental state
requirement and without difficult to prove
external elements.
Thirdly, while a court conviction leads
to a criminal record and social stigma,
this is not the case for an administrative
sanction. Nevertheless, the imposition of
a sanction does not go unnoticed. The law
specifically stipulates that the sanction
must be publicized – in newspapers
as stipulated in early laws that include
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Sampling water/Photo: Ilan Malester
ISRAEL ENVIRONMENT BULLETIN
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