Arbejdsrapport fra Miljøstyrelsen, 20/2005 – Undersøgelse af anvendelse af sanktioner m.v. i straffesager på natur-, miljø- og planområdet

Undersøgelse af anvendelse af sanktioner m.v. i straffesager på
natur-, miljø- og planområdet

Summary

Have environmental criminal cases been given lower priority?

A study of almost 250 criminal cases on infringements of the Environmental Protection Act, Nature Conservation Act and the Planning Act shows that only very few cases have resulted in really significant sanctions. As far as environmental cases are concerned, there has been a marked decrease in sanctions in serious cases. The study shows that to a large degree this is due to the fact that the supervisory authorities have almost not reported any very serious cases. The material does not show us whether or not this is due to the fact that such infringements no longer occur, or whether it is merely because they are not reported. The study only concerns the question of whether the sanctions imposed on those who are found guilty can be considered to be reasonable. The study primarily covers the size of fines, use of confiscation of possible profits, and whether the prosecuted parties are to a reasonable degree effectively made to restore the environment to a standard that once more meets the requirements of environmental legislation.

Background and objectives

The Minister for the Environment has started a number of initiatives to ensure better enforcement of the legislation. The objective of this study is to look at a number of criminal cases on nature conservation, environmental protection and planning legislation with a view to assessing the degree to which the processing of cases and sanctions are satisfactory.

The primary objectives of the study are to ascertain whether

the level of fines is uniform, and possibly whether these are equivalent to sanctions in other comparable areas e.g., infringements of the working environment legislation
the provisions in environmental legislation that include the possibility of more severe sentences for serious cases are used when it is possible to do so, c.f. e.g. Section 110(2) of the Environmental Protection Act
confiscation is used to an appropriate degree and whether profits earned or sought are taken into account when setting fines, c.f. e.g. Section 110(5) of the Environmental Protection Act
default fines are used to a sufficient degree and in a uniform manner.

The study

With the help of the Director of Public Prosecutions the Ministry of Environment has obtained 133 criminal cases on infringements of environmental legislation and 112 cases on infringements of planning legislation and nature conservation legislation. All cases were completed in 2003 and 2004 and resulted in court rulings, agreement to pay a fine in court or to the police. Therefore, the study does not contain material that can shed light on the reporting practices of the individual supervisory authorities.

Due to time restrictions, the study was carried out within a framework of 90 hours (115 in real terms). Professor Gorm Toftegaard Nielsen, University of Aarhus performed the study. The majority of the hours used was used on reading through the almost 250 cases, and the remainder of the hours was used to answer the four questions mentioned above. No literature studies or studies of other instances of case law have been carried out.

Main conclusions

Level of fines
The sanctions within the environmental protection area are characterised by the fact that there is no trace of the large fines that have formerly been given in the most serious cases. The largest fine in the material is DKK 150,000. According to the author, there are no cases in the material which ought to have resulted in a significantly higher fine than the DKK 150,000. Either the infringements that formerly resulted in large fines do not occur, or the environment authorities do not report them. In general, the fines in the less serious cases are small. This includes cases against both private individuals and against a number of commercial enterprises who have also been sentenced to pay fines of a few thousand Danish kroner. For example a pig farm with environmental approval received a fine of DKK 5,000 for having 39 livestock units more than he had permission for, whilst the minimum fine for infringements of the Working Environment Act is DKK 20,000.

The fines for infringements of the Planning Act and the Nature Conservation act are relatively uniform and small. The main problem in these cases is often restoration, which can be expensive. This seems to have had the consequence that the courts have dealt out fines of DKK 3,000-5,000 for commercial enterprises that clearly refuse to adhere to an order. This also applies to cases where the High Court in a civil case has confirmed the legality of an order. Fines of DKK 1,000 are issued both to those who fill their cars with rubbish and empty it outside a recycling centre, and to those who empty their cars in a forest.

Confiscation
Confiscation has only been utilised in two of the almost 250 cases. In one of the cases DKK 15,000 were confiscated, and in the other DKK 20,000 were confiscated. In several instances, the legislature has attempted to ensure that any possible profits be confiscated, or that a fine be set so high that any possible profits are collected through the fine.

The material shows that there are relatively few cases where there are grounds to believe that infringements have led to significant profits that can be calculated. Often, infringements are motivated by the prospect of making a profit, but if it is impossible to calculate, it cannot form the basis of a sanction. In several cases it is obvious that the supervisory authorities are not familiar with how profits should be calculated in accordance the Danish Penal Code confiscation rules.

Default fines
The study aims to document that default fines are used too extensively, and that this form of enforcement is probably quite unsuitable for this purpose. Examples are given of fundamental errors in the courts' treatment of these cases, just as individual examples show that rulings with sentences to pay default fines often do not have the desired effect. Likewise, examples are given of an almost Kafkaesque process prior to default fines being isssued. If a regional authority issues a fine, it can be sent to appeal in the Nature Protection Board of Appeal. If the Board of Appeal affirms the order, the fined party can launch a civil case in the High Court. If the High Court as a third instance affirms the order, a case on enforcement of the order starts in the city court, and following this can end up in the High Court for a second time, during which time the infringing party can continue infringing the order at no risk. As one of the examples illustrates, the guilty party can also continue in an unchanged manner after the second ruling of the High Court.

Lawyers have typically been interested in studying how we can achieve a given judicial result, in this case a court ruling, that ensures a former status is restored. The most significant matter is not the question of achieving a ruling with default fines, rather it is the establishment of a system that ensures that the former status is restored. The current system seems to be badly suited to this purpose, however to the best of my knowledge this has never been investigated. In consideration of the extremely large use of resources in these cases, a thorough investigation ought to be carried out as to how to ensure reasonable enforcement in this area. The current system is from 1842 and does not work well.

The Environmental Protection Act, Section 110(2)
This provision is considered and is used especially often in serious cases, but not to a wider degree in cases with fines of DKK 10,000. Use of Section 110(2) is a condition for inclusion in the Danish EPA register of environmentally irresponsible parties that have been issued a fine of at least DKK 10,000. It is noted that this problem seems to be the result of inappropriate legislation. A simple solution would be to place greater weight on the courts' assessment of the seriousness of an infringement committed by the party concerned, that is to say the size of the fine.

The Prosecution Service's treatment of cases
The material is characterised by the fact that for the most part the cases have ended with a fine that the accused party has agreed to. There are relatively few cases that have been brought to court because the accused believes the fine to be too high, with a view to achieving something by letting the case be judged by the court. All things being equal, this seems to indicate a cautious approach to sanctions. Likewise, it is also notable that there is not one case where the Prosecution Service has appealed for a more severe sanction. However, to a significant degree this may be connected with the fact that the Prosecution Service has had a very poor success rate in the relatively few cases where it has attempted to obtain more severe sanctions through an appeal in either the city court or in the High Court. Therefore, it must be concluded that much seems to indicate that the courts are not prepared to pass more severe sanctions on the basis of current legislation.