Prosecuting a suspected case of illegal traffic Workshop for Central and Eastern Europe countries on the prosecution of illegal traffic of hazardous and other wastes under the Basel Convention Juliette Kohler UNEP Secretariat of the Basel Convention 26 and 27 June 2012
20
Embed
Prosecuting a suspected case of illegal traffic Workshop for Central and Eastern Europe countries on the prosecution of illegal traffic of hazardous and.
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Prosecuting a suspected case of illegal traffic
Workshop for Central and Eastern Europe countries on the prosecution of illegal traffic of hazardous and other wastes under the Basel Convention
Juliette KohlerUNEP Secretariat of the Basel Convention
26 and 27 June 2012
Contents
1. Why prosecute?2. Defining elements of the
crime3. Whom to prosecute and for
what?4. Obtaining evidence 5. Cooperation and assistance 6. Penalties and sentencing7. Staying informed about
illegal traffic
Why prosecute?
• Why do people carry out illegal shipments?
– To save money or to make profits at the expense of human health and the environment
– By ignorance of applicable laws and regulations
Why prosecute?
• Why enforce laws pertaining to illegal traffic of waste?
– Negative consequences on our health and our environment
– Deter and punish violations of environmental law
– Strengthen the credibility of environmental requirements and the rule of law
– Ensure fairness to those complying with the law (equal level playing field)
Possible consequences:
– Out-of-court settlements
– Administrative sanctions
– Civil measures
– Criminal procedures
Why prosecute?
Administrative sanctions
• Usually applicable where there are deficiencies in the application of the specific movement and notification process
• De minimis offence (eg. low quantity of waste involved)• Expeditious procedure• Possible consequences:
– notices requiring actions to be taken (or ceased) – fines or sanctions (eg. loss of license)
Why prosecute?
Civil measures• To address reparation of the damage caused (restoration
and/or compensation)• The flexibility of civil measures may help to promote
improved compliance without involving the legal requirements of prosecution
• Civil undertakings and outcomes may be more proportionate, cost-effective and
can be dispensed more rapidly
Why prosecute?
Criminal prosecution– Jurisdiction?– Trigger: ex officio or following a complaint?– Opportunity of prosecuting? (if applicable)
• Weigh the extent of the damage against that of the culpable conduct
• Which jurisdiction has the best chances of leading to a conviction?
• Consider the reasonable chances of success of a prosecution, eg.
– complexity of the case– what are the possible, and most appropriate, remedies– have other offences under domestic legislation been
committed?– the availability of resources to conduct investigations and
gather evidence
Why prosecute?
Constitutive elements of the crime• Whether a substance or good is a ‘waste’• Whether the waste is ‘hazardous’ or ‘other’• Whether a ‘transboundary movement’ has
occurred• Whether any of the elements in (a) to (e) in
Article 9, paragraph 1 is deemed to have taken place
Defining elements of the crime
Proving the existence of a ‘waste’ that is ‘hazardous’ or ‘other’
• Often difficult to prove as the definition relies partly on subjective elements (the “intention” to dispose)
• Wastes are often mixtures of various substances, whose contaminating or hazardous components may only be revealed by further laboratory testing
• Legal frameworks sometimes do not provide sufficient clarity
Defining elements of the crime
• Whether a ‘transboundary movement’ has occurred: what is the State of export, are their transit States?
Defining elements of the crime
Illegal traffic?• If one of the elements listed in Article 9,
paragraph 1 is satisfied, the transboundary movement is deemed to be illegal traffica) Without notification
b) Without consent
c) With consent obtained through falsification, misrepresentation or fraud
d) Doesn’t conform with the documents
e) Results in deliberate disposal
Defining elements of the crime
1. 1. Who can potentially be prosecuted: individuals or legal entities?