13.6.1. Indictment of enterprises:
The Danish regulations make it possible to indict enterprises per se, and this is the normal procedure. The majority of Danish enterprises are organized as public limited companies or partnership companies, i.e. EC regulated forms. The cases are therefore brought against the company, and it can be fined or other economic sanctions can be imposed.
When a criminal case is brought against a company per se, it is sufficient grounds for conviction if the prosecutor proves that the organization acted negligently or wilfully. He does not need to be able to identify the person who acted wrongly or the faulty routines at the enterprise.
13.6.2. Indictment of Municipalities:
Until 1987 it was not possible to penalize Municipalities, and until 1992 it was not possible to penalize the State. However, it was felt in Denmark that private, municipal and state enterprises should be placed on an equal footing as far as concerns pollution. The Municipalities mainly run sewage treatment plants, incineration plants and landfills, while the State has the Ministry of Defence and the Danish State Railways, both of which are major polluters. If Municipalities or the State are convicted the fine is paid from the public purses, but the stigma of having acted environmentally wrongly can have repercussions for the responsible politicians or civil servants.
Since 1987, approx. 20 fines have been imposed on Municipalities, mainly because of breaches of authorization requirements at sewage treatment plants. The largest fine so far given for a poor sewage treatment plant is DKK 150,000. The largest fine to a Municipality, though, concerned a case in which a Municipality was bound to remove beached oil but instead ploughed it into the sand. This cost a fine of DKK 200,000, which was equivalent to the sum the Municipality saved by its unlawful action.
No criminal case against state enterprises has yet been recorded.
13.6.3. Indictment of individuals:
Since the majority of farms are run as single person businesses, criminal environmental cases are directed at the farmer personally. Where an enterprise is charged, albeit a public limited company, a partnership or a municipal enterprise, charges can in certain cases also be brought against individuals who have played a decisive role in the breach of law.
The most common instance is management responsibility: If a Managing Director or equivalent leader of an enterprise has ordered an unlawful act or has knowingly looked the other way while it took place, charges are brought against the leader personally. If the whole Board of Directors has voted for an unlawful act, each member risks being charged personally. Such leaders have hitherto been fined up to DKK 40,000.
Charges are not usually brought against the man on the shop floor that has done something like turn some valves in the wrong direction. Charges are only brought in cases of extreme neglect of duty, for example if he was drunk or ignored instructions in an irresponsible manner.
13.6.4. Local politicians - dereliction of duty:
If municipal politicians with responsibility for environmental matters manage them so badly that unnecessary breaches of the law take place, they can be held responsible in the following way:
The prosecution or the Danish EPA puts the question of the responsibility for the dereliction of duty to the municipal supervisory body. In cases concerning municipal politicians the body is comprised of the County Prefect (a state civil servant) and 4 members of the County Council. In cases concerning county politicians, the Ministry of the Interior is the supervisory body. If the supervisory body is in agreement with the authority raising the question (i.e. the prosecution or the Danish EPA), it requests the prosecution to bring charges.
The possibility has existed since 1984. To date only 2 cases have been prosecuted. One was the case mentioned above concerning the ploughing-in of beached oil; this ended with fines of DKK 5,000 to the Mayor and the chairman of the committee for technical and environmental matters, where the decision to undertake the unlawful action was made. In the other case a committee for technical and environmental matters comprised of 5 members knowingly ignored the fact that the largest employer in the municipality (600 workplaces) had been discharging up to 6,000 PE of sewage more than was authorized for a period of 3 years. The technical administration department had on 3 occasions recommended reporting the breach of discharge limits to the police, but the committee politicians instead chose to negotiate with the enterprise about a new jointly owned sewage treatment plant. The fines imposed were DKK 1-2,000.
13.6.5. Simple negligence:
In the most important penal provisions in the Environmental Protection Act, simple negligence is punishable. The lower limit for punishable negligence is illustrated by the following case:
In 1980, a pesticide manufacturer renovated its pipe system as part of environmental improvement measures. In 1983 it was found that some of the pipe couplings were leaky because they had not been made in a technically correct manner. As a result, 5 tonnes of the insecticide dimethoate had run out into the groundwater and thereafter to the nearby fjord. The enterprise cleaned up and laid a new system of pipes, all at a cost of several million Danish crowns. The High Court nevertheless ruled that the enterprise had acted negligently because it is of a considerable size, and has a high degree of expertise at its disposal with respect to hazardous processes and substances with dangerous properties. It should therefore have been more careful with the pipe system. The fine imposed was DKK 40,000.
In those cases brought to court, there are no examples of acquittal on the grounds that a discharge was accidental.
Great demands as to vigilance also apply in the case of the agricultural sector, both with respect to the handling of polluting fluids, the condition of the equipment and the way the equipment is used. However, if the emission is due to a weakness in an approved system, there may be grounds for acquittal.
13.6.6. Analyses and measurements:
Prosecutors and judges are very fond of analyses and measurements. They are considered "hard facts", while oral descriptions of say the biological condition of a watercourse are not accorded the same significance.
In the routine situation, the analyses or measurements will have been carried out by an accredited laboratory. Things do not go automatically in Danish courts, however: The court is not forced to unconditionally accept such measurements. The Danish courts are free to evaluate the evidence as they think fit, and the situation has arisen that a noise measurement has been rejected because it did not harmonize with the other information in the case. On the other hand, the situation can also arise where the court decides to believe a noise measurement provided by an amateur if it fits with the other information in the case. Nonetheless, the main tendency is of course that the courts are most inclined to believe analyses and measurements carried out by an accredited laboratory.
The courts attach great importance to an analysis being carried out as prescribed in the authorization conditions. If, for example, they prescribe weighted daily samples, and the prosecution can only base its case on instantaneous samples, the case will be dismissed.
As previously mentioned, the defense cannot claim sampling error because the latter is already taken into account when setting the authorization conditions. This is important because sampling error is 15-50% with many environmental measurements.
13.6.7. 5-year statute of limitations:
Until 1984 the statute of limitations was 2 years, this being the normal rule with cases punishable by fine. In Denmark the statute of limitations is counted from the time of the offence. However, since quite some time may easily pass before a breach of environmental law is discovered, and since the cases can be so complicated that the police and environmental authorities need plenty of time to complete their investigations, the decision was made in 1984 to extend the statute of limitations to 5 years.
13.6.8. Summary:
The above mentioned elements of Danish practice in criminal environmental cases probably solve most questions, thereby leaving only one - to mete out a suitable punishment. This question is examined further below in Section 13.7.
It is a clear advantage that the charges are brought against the enterprise per se. It is generally felt by all parts of Danish society that it is reasonable to penalize the organization whose deficiencies have resulted in the breach of law. Then when personal charges are brought against managers in serious cases, the publicity has considerable impact. That is really something that managers do not like.
It is probably also an advantage that conviction in Danish criminal
environmental cases requires negligence to be proved. This means that there is something
to reproach the enterprise for, something that is difficult to explain away to the media.
It might seem tempting to introduce strict liability, but it could easily have
disadvantages too. Firstly, it would be difficult to get Danish courts to impose large
fines on the basis of strict liability, and secondly, it would be easier for enterprises
to claim to the press that the event was just an accident, and that the regulations alone
were the reason for the fine.