Legislative Decree No. 1351, within the various amendments made to several articles of the Criminal Code, proceeded to leave without effect the first part of the first paragraph of section 304 of the aforementioned body of law, referring to the base type of the crime of Environmental Pollution, eliminating the requirement of the regulatory qualification that had to be mandatorily granted by the Environmental Authority in order for the delimited crime to be configured.
With the proposed amendment, the purpose is to typify the qualification of the conduct of the active subject of the crime according to the criminal type analyzed, now that the requirement of the regulatory qualification issued by the Environmental Authority does not exist, which was previously essential to determine the damage to the environment or its endangerment, with the sole purpose that the Specialized Prosecutor in Environmental Matters may cover his action, at a preliminary level at first and later, if it is the case of a formalization, go to the preparatory investigation stage or to the trial before the respective Court of Preparatory Investigation, We must specify that at present it will depend on the performance of the Environmental Experts of the Public Prosecutor’s Office, members of the Special Forensic Team on Environmental Matters -EFOMA- and the Environmental Forensic Laboratory -LAFOA-, who at a national level must participate from the diligence of the Technical Prosecutorial Inspection, then verify other actions and finally issue their Prosecutorial Expertise according to what is established in the General Manual of Performance of Environmental Experts in the processes of investigation of environmental crimes of the Public Prosecutor’s Office and in other investigations they will also request the support of the OEFA.
Now we must first ask ourselves: Will there be enough environmental experts in the Public Prosecutor’s Office to cover the requirements of the number of investigations and prosecutions of environmental contamination crimes at a national level? I believe that categorically the answer is no. Secondly, we must also ask ourselves, will the environmental experts have an approved budget to be able to travel to different places and cover travel expenses and logistics in general? I also believe that they do not have the budget to carry out their expert work.
Likewise, within this group is interference, as a particular assumption of the duty to save; therefore, a duty of guarantor is triggered by interference for anyone who organizes something dangerous (precedent action), and must avoid the damages resulting from such action. The basis of this obligation is clear: “whoever organizes a special risk must also bear the duty to save”. For example, whoever opens a ditch in a public street without securing it has the duty to save whoever falls into it. It is evident that by means of the preceding action a space of freedom of others is usurped; therefore, the required rescue has no other meaning than to revoke such usurpation.
Finally; and, regardless of the legal positions, the consequences of this fact, which do not constitute a fiction, should call us to the following reflection. Although as people in society we have freedom of organization (using vehicles, machines, animals, etc.), we also have duties to ensure that it does not give rise to risks that exceed what is permitted.
1] Criminal Lawyer of Estudio Linares Abogados. Master in Criminal Law. University Professor.
2] “Whoever, after an automobile accident or other similar accident in which he has been involved and which has resulted in injuries or death, leaves the scene to avoid identification or to evade the necessary verifications or leaves for reasonable reasons, but fails to report immediately to the authorities, shall be punished with imprisonment of not less than six months nor more than four years and with ninety to one hundred and twenty days-fine”.
3] Article 126 of the Criminal Code describes it as follows: “Whoever omits to provide assistance to a person who has been injured or incapacitated, endangering his life or health, shall be sentenced to imprisonment for a term not exceeding three years”.
Hegel, George Friedrich Wilhelm, Grundlinien der Philosophie des Rechts – oderNaturrecht und StaatswiyssenschaftimGrundriysse, Berlin, 1821, ed. with care of Eva Moldenhauer and Karl Markus Michel, 6th ed.
5]Jakobs, Günther, “La omisión: estado de la cuestión”, trans. Javier Sánchez-Vera, in Roxin, Claus (et al.), Sobre el estado de la teoría del delito (Seminario en la Universitat Pompeu Fabra), Madrid 2000, p. 140.
6] Cf. Jakobs, Action and omission, cit.