EU Forum of Judges for the Environment Annual Conference 2016
The ECHR, ICCPR and EU-Charter as beacons in environmental prosecution and adjudication
Bucharest, 18 and 19 November 2016
Introduction
In European environmental law and law enforcement, the European Convention on Human Rights
(Rome, 4 November 1950) (‘ECHR’) and the International Covenant in Civil and Political Rights (New York,
19 December 1966) (‘ICCPR’) occupy an intriguing place. Through a couple of provisions, as interpreted
by the European Court of Human Rights (‘the Court’) and, to a lesser extent, the Human Rights
Committee, these human right treaties provide (1) a common layer of fundamental procedural and
material guarantees to respect while conducting criminal proceedings and punishing, and (2) a common
measure of environmental protection through the protection of the right to respect for private and
family life and, ultimately, the right to life as such. The provisions involved are, firstly, the Articles 6 and 7
ECHR, the Articles 2 to 4 Seventh ECHR-Protocol (Strasbourg, 22 November 1984) and the Articles 14
and 15 ICCPR. The provisions involved are, secondly, the Articles 2 and 8 ECHR and 6 and 17 ICCPR.
Since a couple of years, the protection offered by the ECHR and the ICCPR is backed by the Charter of
Fundamental Rights of the European Union. The EU-Charter has been legally binding since 1 December
2009. It binds Member States when they act within the scope of EU law, thus, for instance, when dealing
with offences against legislation implementing EU environmental directives. A young source of law, the
EU-Charter is steadily gaining legal importance in the decisions of the EU courts (General Court, Civil
Service Tribunal and CJEU). Its Chapter VI Justice, contains provisions – Articles 47 to 50 – that echo the
guarantees for criminal proceedings and punishing offered by the ECHR and the ICCPR, adding to those
the requirement of proportionality of penalties. Next to the right to life provided by its Article 2 and the
right to respect for private and family life granted by its Article 7, the EU-Charter also explicitly states a
right to environmental protection by means of its Article 37.
Worth mentioning, is Article 52 §3 EU-Charter: “In so far this Charter contains rights which correspond to
rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the
meaning and scope of those rights shall be the same as laid down by the said Convention. This provision
shall not prevent Union law providing more extensive protection.”
This year’s annual conference is devoted to the impact of this common layer of guarantees and rights on
environmental adjudication, especially environmental adjudication through criminal proceedings against
environmental offences.
We intend to explore the following aspects of the aforementioned provisions:
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The right to be tried within a reasonable time (Articles 6 §1 ECHR and 14 §1 ICCPR; Article 47 (2) EUCharter);
The right to a fair trial as including the right to respect of judgements / implementation of
judgements (Articles 6 §1 ECHR and 14 §1 ICCPR; Article 47 (2) EU-Charter);
The right to be presumed innocent (Articles 6 §2 ECHR and 14 §2 ICCPR; Article 48 EU-Charter);
The privilege against self-incrimination (Articles 6 §1 ECHR as interpreted by the Court and 14 §3, g)
ICCPR);
The protection against double jeopardy (Articles 4 Seventh ECHR-Protocol and 14 §7 ICCPR; Article
50 EU-Charter);
The environmental outreach of the right to respect for private and family life (Articles 8 ECHR and 17
ICCPR; Article 7 EU-Charter);
The environmental outreach of the right to life (Articles 2 ECHR and 6 ICCPR; Article 2 EU-Charter);
The right to environmental protection (Article 37 EU-Charter).
National rapporteurs may pay attention also to similar rights contained in national constitutions.
1/ The right to be tried within a reasonable time
Treaty provisions
ECHR, Article 6 §1: “ In the determination … of any criminal charge against him, everyone is entitled to a
… hearing within a reasonable time …”
ICCPR, Article 14 §3, c): “In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality: … To be tried without undue delay …”
See also EU-Charter, Article 47 (2):
“Everyone is entitled to a …hearing within a reasonable time …”
Background
The right to be tried within a reasonable time is an extremely important aspect of the right to a fair trial.
Indeed, it has rightfully been observed that “Justice delayed, is justice denied”. Timely adjudication is a
cornerstone of justice.
The ECtHR provided relatively early in the development of its case-law precisions on the starting point of
the relevant period. Through time its position has hardly changed. A rather recent judgment confirms it
as follows: “The Court recalls that the period to be taken into account in the assessment of the length of
the proceedings starts from an official notification given to an individual by the competent authority of
an allegation that he has committed a criminal offence or from some other act which carries the
implication of such an allegation and which likewise substantially affects the situation of the suspect (…)
According to the Court’s constant case-law, a person has been found to be subject to a ‘charge’, inter
alia, when a preliminary investigation has been opened in his case and, although not under arrest, the
applicant has officially learned of the investigation or has begun to be affected by it.” (Kangasluoma v.
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Finland (2004), §26). Important: the starting point of the ‘reasonable’ timespan is at once that point at
which all guarantees for criminal proceedings start to apply. The relevant period ends with a final
judgement, served on the accused. The ECtHR assesses the reasonableness of the length of the
proceedings in the light of the particular circumstances of the case and having regard to criteria such as,
most importantly, the complexity of the case, the conduct of the applicant and the relevant authorities,
and the importance of what is at stake for the applicant in the litigation.
Questions
1.1. What usually triggers, in your country, the opening of a file on an environmental offence at the
public prosecutor’s office? The reception of a notice of violation recording the offence? Other
triggers?
1.2. What is on average the time required in your country in criminal proceedings to go from a citation to
a first instance judgment and to an appeal judgment?
1.3. What procedural steps can take time?
1.4. Are you aware of difficulties with this guarantee?
1.5. What are the legal consequences of undue delay in your legal system?
Please illustrate your answer with case-law examples.
2/ The right to a fair trial as including the right to respect of judgments / implementation of
judgments
Treaty provisions
ECHR, Article 6 §1: “… everyone is entitled to a fair … hearing …”
ICCPR, Article 14 §1: “… everyone shall be entitled to a fair … hearing …”
See also EU-Charter, Article 47 (2):
“Everyone is entitled to a fair … hearing …”
Background
The guarantees granted by Art. 6 ECHR and Art. 14 ICCPR would be illusory if a final judicial decision is
allowed to remain inoperative. This is especially the case for judgements in civil / administrative cases,
where very often the applicant hopes to obtain something positive. It, however, is also true in criminal
proceedings, where the ECtHR explicitly dealt with the issue in cases regarding acquittals (see for
instance Assanidze v. Georgia (2004)). Reasonably it has to be assumed that the requirement of the
respect of judgments, their implementation, extends to the honored claims of civil parties: damages,
remedial sanctions. One could argue that it also extends to remedial sanctions imposed on behalf of the
public interest, whether requested by the prosecution or inflicted ex officio by the court.
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Questions
2.1.What do you know about the implementation of judgments in your country? Are punitive sanctions
(prison sentences, fines, other) implemented? Are remedial sanctions (reinstatement of the
environment, compensatory action, other) implemented? Who is in charge? What goes well, wrong?
2.2.Can criminal courts also impose remedial sanctions in your country? If so, can they do so ex officio or
only on request by the prosecution or a civil party?
2.3.Worldwide NGO’s play a significant role in the prosecution of environmental offences. Can they be a
civil party in criminal proceedings under the law of your country? Do they have an easy access to criminal
proceedings or are there severe conditions to meet? Can they obtain damages? Can they request
remedial action?
Please illustrate your answers with case-law examples.
3/ The right to be presumed innocent
Treaty provisions
ECHR, Article 6 §2: “Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.”
ICCPR, Article 14 §2: “Everyone charged with a criminal offence shall have the right to be presumed
innocent until proved guilty according to law.”
See also EU-Charter, Article 48 §1:
“Everyone who has been charged shall be presumed innocent until proved guilty according to law.”
Background
The ECtHR explains this guarantee as follows: “… the principle of the presumption of innocence …
requires, inter alia, that when carrying out their duties, the members of a court should not start with the
preconceived idea that the accused has committed the offence charged; the burden of proof is on the
prosecution and any doubt should benefit the accused. …” (Barberà, Messegué & Jobardo v. Spain (1988))
The principle thus holds two requirements:
- a procedural one -- the burden of proof is on the prosecution;
- a material one -- in the appreciation of evidence by the court, doubt benefits the accused. In practice
this requirement operates at the level of the decision of conviction/acquittal regarding each alleged
offence but also, when convicting, at the level of the assessment of factual elements relevant for the
sentencing decision.
Questions
3.1. What are the basic principles of evidence in the criminal law of your country? Are the means of proof
free or restricted? What evidence is most often used in environmental cases? What type of evidence
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creates troubles (too costly, too difficult to obtain, too easily mismanaged by environmental
inspectorates, …)
3.2. How do you see the impact of the principle of innocence on the prosecution policy? Do you feel it
has an overly restrictive impact, in general, for some type of cases?
3.3. How do you see the impact of the principle on the assessment of facts and guilt (intentional /
negligence) in the conviction decision ? Do you feel it has an overly restrictive impact, in general, for
some type of cases?
3.4. How do you see the impact of the principle on the sanctioning decision? Do you feel it has an overly
restrictive impact for some type of sanctions?
Please illustrate your answer with case-law examples.
4/ The privilege against self-incrimination
Treaty provisions
ECHR: <ECtHR – case-law regarding Article 6 §1>
ICCPR, Article 14 §3, g): “In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality: … (g) Not to be compelled to testify
against himself or to confess guilt”
See also EU-Charter, Article 47:
“[… ]Everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal previously established by law. […]”
Background
Art. 6 ECHR and 47 of the EU Charter contains no provision similar to Art. 14 §3, g) ICCPR. But the ECtHR
has extended the right to a fair trial stipulated by Art. 6 §1 ECHR as encompassing “the right … to remain
silent and not to contribute to incriminating himself” (Funke v. France, 1993). As this ruling shows, the
right to remain silent is part of a wider privilege against self-incrimination. This privilege against selfincrimination is one of the more complex aspects of the right to a fair trial. It is of special interest for
environmental law enforcement because (a) environmental laws make an extensive use of selfmonitoring and -reporting routines, reporting duties for accidental spills and other incidents and because
(b) some environmental inspection legislations also provide sanctioned interrogation rights that interfere
with the right remain silent. Information obtained through self-reporting can generally be used for
criminal proceedings, whenever already available to the authorities. In Saunders v. the UK (1996) the
ECtHR decided that information obtained thanks to a sanctioned interrogation right in tempore non
suspecto (before whatever criminal charge) cannot be used in later criminal proceedings.
Questions
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4.1.Does the environmental law in your country make (an extensive) use of self-monitoring and reporting obligations? Does it provide in inspection rights to ask for information, sanctioned when not
complied with?
4.2.If so, are you aware of prosecution difficulties caused by the privilege against self-incrimination? Is it
easy to draw the boundaries between evidence that can be used and evidence that cannot be used
because of this privilege? Please illustrate your answer by case-law.
5/ The protection against double jeopardy
Treaty provisions
Seventh ECHR-Protocol, Article 4 – Right not to be tried or punished twice:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been fully acquitted or convicted in accordance
with the law and penal procedure of the State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance
with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered
facts, or if there has been a fundamental defect in the previous proceedings which could affect the
outcome of the case.”
ICCPR, Article 14 § 7: “No one shall be liable to be tried or punished again for an offence for which he has
already been finally convicted or acquitted in accordance with the law and penal procedure of each
country.”
See also EU-Charter, Article 50:
“No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or
she has already been finally acquitted or convicted within the Union in accordance with the law.”
Background
The ECtHR-case law regarding the protection against double jeopardy has been balancing between
different interpretations since 1995, the year of the first judgment with regard to this guarantee. As the
case-law stands now, the Zolotoukhine criterion governs the scope of the guarantee: “… the Court took
the view that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a
second ‘offence’ in so far it arises from identical facts or facts which are substantially the same.”
(Zolotoukhine v. Russia (2009)). This case-law is subject to criticism, especially with regard to tax
offences, and might be subject to further evolution. It is wise to be watchful for what comes.
It should be stressed that the guarantee not only encompasses double punishment but extends to
double trial.
In environmental adjudication it is increasingly important because of the rise of administrative
sanctioning, especially administrative fining.
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Questions
5.1. Are criminal courts in your country confronted with double jeopardy when dealing with
environmental offences? If so, what is the typical case-set: a combination with administrative
fines, with penalties from other policy areas such for instance as agricultural policies?
5.2. Are there discussions with regard to the scope of the guarantee? Areas of doubt, vagueness?
What, for instance, about EU-regulations regarding extensive farming and mandatory cuts in the
income support to farmers when infringing the cross-compliance conditions?
Please provide a case from your country to discuss this guarantee.
6/ The right to proportional penalties
Treaty provisions
EU-Charter, Article 49 (3):
“The severity of penalties must not be disproportionate to the criminal offence.”
Background
For practitioners active in the field of environmental law enforcement, Article 49 (3) EU-Charter sounds
like an old song. Indeed, the requirement of proportional sanctioning has been put forward by the CJEU
and environmental regulations and directives since a few decades. Since its milestone judgement in the
Greek Maize case (1989) the CJEU has steadily ruled that Member States have to take measures to
ensure that all infringements of EU-embedded law “are penalized under conditions, both procedural and
substantive, which are analogous to those applicable to infringements of national law of a similar nature
and importance and which, in any event, make the penalty effective, proportionate and dissuasive”. The
requirement has been codified in many environmental regulations and directives, rather recently in a
very visible way in the Eco-crime Directive (2008): member states had to take the necessary measures to
ensure that the offences listed in its Articles 3 and 4 are punishable by “effective, proportionate and
dissuasive” penalties.
Yet, there is a specific dimension to Article 49(3) EU Charter. As a provision of the EU-charter, it stresses
the citizen side of the requirement, the protection it offers to the offender. Indeed, under the
aforementioned case law and legislation, proportionality takes along disproportionality because of too
severe as well as because of too soft. The EU-Charter requirement focuses on one of both dimensions.
Questions
6.1. Have you noticed, in your practice, environmental cases where the penalties inflicted were too
severe?
6.2. If so, could you elaborate and tell why you felt the penalty was too severe?
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6.3. At the level of the Council of Europe, Recommendation No. R (92) 17 of the Committee of Ministers
tot member states concerning consistency in sentencing states, in its point B.7.a: “As a matter of
principle, every fine should be within the means of the offender on whom it is imposed.” Do you consider
that proportionality in punishment requires to have consideration for the extent to which the penalty
hurts the offender, implying, for instance, that for identical offences a firm with healthy finances should
be punished with quite higher fines than an individual with a low income? What is the punishing practice
in this regard in your country?
7/ The right to respect for private and family live
Treaty provisions
ECHR, article 8:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others.”
ICCPR, article 17:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honor and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.”
See also EU-Charter, Art. 7:
“Everyone has the right to respect for his or her private and family life, home and communications.”
Background
As is widely known, this fundamental right has become very important to environmental law. Over time,
the ECtHR has become consistent in its case law under Art. 8 in environmental cases. The rights
guaranteed under that provision may be violated either by direct infringement or by failing to protect
them. Drupsteen (2010) sketches the general outline of the ECtHR-approach for both cases: “ … a fair
balance has to be struck between the interests involved. This balance is disturbed by environmental
nuisance or damage. Not every environmental nuisance will breach the rights protected under Article 8.
The nuisance or damage has to be real and has to exceed a certain level. Domestic standards are applied
to decide whether the nuisance breaches Article 8 or not. States do have a wide margin of appreciation in
tackling environmental problems.”
Questions
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7.1. Have you noticed an impact of the right to respect for private of family life on the environmental
adjudication in your country? If yes, could you please provide examples form the case-law illustrating
this influence?
7.2. Would you be willing to use this right in support of environmental adjudication and, if so, in which
type of cases?
8/ The right to life
Treaty provisions
ECHR, Article 2:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save
in the execution of a sentence of a court following his conviction of a crime for which this penalty is
provided by law.
2. …”
ICCPR, Article 6:
“1. Every human being has the inherent right to life. This right shall be protected. No one shall be
arbitrarily deprived of his life.
3. …”
See also EU-Charter, Art. 2 §1:
“Everyone has the right to life.”
Background
Lahore High Court (Pakistan) Green Bench Orders of August-September 20151 demonstrate with
painstaking clarity that in some types of environmental cases the right to life is at stake. The case the
orders dealt with concerns climate change, in a country where mountain slopes and wide river delta
prone to floods endanger the livelihood of rural populations.
Questions
8.1. Have you noticed an impact of the right life on the environmental adjudication in your country? If
yes, could you please provide examples form the case-law illustrating this influence?
8.2. Would you be willing to use this right in support of environmental adjudication and, if so, in which
type of cases?
9/ The right to environmental protection
Treaty provisions
1
http://sys.lhc.gov.pk/greenBenchOrders/WP-Environment-25501-15-31-08-2015.pdf
http://sys.lhc.gov.pk/greenBenchOrders/WP-Environment-25501-15-08-09-2015.pdf
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EU-Charter, Article 37:
“A high level of environmental protection and the improvement of the quality of the environment must
be integrated into the policies of the Union and ensured in accordance with the principle of sustainable
development.’
Background
This right is rather vague. Yet, the zest of the message is clear: a high level of environmental protection
and the improvement of the quality of the environment are considerations to be taken along in decision
making.
Questions
9.1. Do you consider this right to have impact on environmental adjudication?
9.2. Do you agree with the proposition that, in environmental adjudication, it is only fit to impact on the
sanctioning policy, meaning choice and level of sanctions inflicted?
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Questionnaire
Please note that if similar provisions of your national Constitutions than the Treaty Provisions referred
to are used, you may off course include those in your report
1/ The right to be tried within a reasonable time
3.1.
What usually triggers, in your country, the opening of a file on an environmental offence at the
public prosecutor’s office? The reception of a notice of violation recording the offence? Other triggers?
3.2.
What is on average the time required in your country in criminal proceedings to go from a
citation to a first instance judgment and to an appeal judgment?
3.3.
What procedural steps can take time?
3.4.
Are you aware of difficulties with this guarantee?
3.5.
What are the legal consequences of undue delay in your legal system?
Please illustrate your answer with case-law examples.
2/ The right to a fair trial as including the right to respect of judgments / implementation of judgments
2.1.
What do you know about the implementation of judgments in your country? Are punitive
sanctions (prison sentences, fines, other) implemented? Are remedial sanctions (reinstatement of
the environment, compensatory action, other) implemented? Who is in charge? What goes well,
wrong?
2.2.
Can criminal courts also impose remedial sanctions in your country? If so, can they do so ex officio
or only on request by the prosecution or a civil party?
2.3.
Worldwide NGO’s play a significant role in the prosecution of environmental offences. Can they be
a civil party in criminal proceedings under the law of your country? Do they have an easy access to
criminal proceedings or are there severe conditions to meet? Can they obtain damages? Can they
request remedial action?
Please illustrate your answers with case-law examples.
3/ The right to be presumed innocent
3.5. What are the basic principles of evidence in the criminal law of your country? Are the means of
proof free or restricted? What evidence is most often used in environmental cases? What type of
evidence creates troubles (too costly, too difficult to obtain, too easily mismanaged by
environmental inspectorates, …)
3.6. How do you see the impact of the principle of innocence on the prosecution policy? Do you feel it
has an overly restrictive impact, in general, for some type of cases?
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3.7. How do you see the impact of the principle on the assessment of facts and guilt (intentional /
negligence) in the conviction decision ? Do you feel it has an overly restrictive impact, in general, for
some type of cases ?
3.8. How do you see the impact of the principle on the sanctioning decision? Do you feel it has an overly
restrictive impact for some type of sanctions?
Please illustrate your answer with case-law examples.
4/ The privilege against self-incrimination
4.1. Does the environmental law in your country make (an extensive) use of self-monitoring and reporting obligations? Does it provide in inspection rights to ask for information, sanctioned when
not complied with?
4.2. If so, are you aware of prosecution difficulties caused by the privilege against self-incrimination? Is it
easy to draw the boundaries between evidence that can be used and evidence that cannot be used
because of this privilege? Please illustrate your answer by case-law.
5/ The protection against double jeopardy
5.1. Are criminal courts in your country confronted with double jeopardy when dealing with
environmental offences? If so, what is the typical case-set: a combination with administrative fines,
with penalties from other policy areas such for instance as agricultural policies?
5.2. Are there discussions with regard to the scope of the guarantee? Areas of doubt, vagueness?
What, for instance, about EU-regulations regarding extensive farming and mandatory cuts in the
income support to farmers when infringing the cross-compliance conditions?
Please provide a case from your country to discuss this guarantee.
6/ The right to proportional penalties
6.1. Have you noticed, in your practice, environmental cases where the penalties inflicted were too
severe?
6.2. If so, could you elaborate and tell why you felt the penalty was too severe?
6.3. At the level of the Council of Europe, Recommendation No. R (92) 17 of the Committee of Ministers
tot member states concerning consistency in sentencing states, in its point B.7.a: “As a matter of
principle, every fine should be within the means of the offender on whom it is imposed.” Do you
consider that proportionality in punishment requires to have consideration for the extent to which
the penalty hurts the offender, implying, for instance, that for identical offences a firm with healthy
finances should be punished with quite higher fines than an individual with a low income? What is
the punishing practice in this regard in your country?
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7/ The right to respect for private and family live
7.1. Have you noticed an impact of the right to respect for private of family life on the environmental
adjudication in your country? If yes, could you please provide examples form the case-law
illustrating this influence?
7.2. Would you be willing to use this right in support of environmental adjudication and, if so, in which
type of cases?
8/ The right to life
8.1. Have you noticed an impact of the right life on the environmental adjudication in your country? If
yes, could you please provide examples form the case-law illustrating this influence?
8.2. Would you be willing to use this right in support of environmental adjudication and, if so, in which
type of cases?
9/ The right to environmental protection
9.1. Do you consider this right to have impact on environmental adjudication?
9.2. Do you agree with the proposition that, in environmental adjudication, it is only fit to impact on the
sanctioning policy, meaning choice and level of sanctions inflicted?
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