THE ENVIROMENT PROTECTION ACCORDING TO THE CRIMINAL CODE OF THE REPUBLIC OF SERBIA

1. DRAGAN OBRADOVIĆ PRESIDENT DISTRICT COURT VALJEVO THE ENVIROMENT PROTECTION ACCORDING TO THE CRIMINAL CODE OF THE REPUBLIC OF SERBIA December 2008.

2. CONTENT: • INTRODUCTION • THE ENVIROMENT PROTECTION ACCORDING TO THE COMPARATIVE LAWS • CRIMINAL LEGISLATION OF THE REPUBLIC OF SERBIA • SOME CHARACTERISTICS OF THE CRIMINAL OFFENSES AGAINST THE ENVIROMENT • SMALL JUDICIAL STATISTIC • ABOUT THE JUVENILES IN SHORT • OFFICIAL STATISTICS FOR JUVENILES • OBSTACLES IN COURT PRACTICE • OBSTACLES IN COURT PRACTICE FOR JUVENILES • CONCLUSION • PROPOSALS

3. INTRODUCTION: • Every day the Media informs about diffrent kinds of conduct threatening the enviroment • There is variety of the enviroment protection in the Serbian Law. -The penal protection (in the widest sens) -The civil legal protection • The penal protection – three forms: Petty offenses Economic violetions Criminal offenses

4. THE ENVIROMENT PROTECTION ACCORDING TO THE COMPARATIVE LAWS: • RMNE in its Criminal Law has separate chapter prescribing the criminal offenses against the enviroment – 24 criminal offenses. It prescribes criminal liability for legal persons • RM in its Criminal Law has separate chapter prescribing the criminal offenses against the enviroment – 17 criminal offenses - it contains the rule of liability of legal persons for criminal offenses • RCRO in its Criminal Code has separate chapter prescribing the criminal offenses against the enviroment - 13 criminal offenses -it has the Act on the responsibility of legal persons for the criminal offenses • RSLO prescribed liability of legal persons for crimnal offenses, as well as Bosnia and Herzegovina

5. CRIMINAL LEGISLATIONOF THE REPUBLIC OF SERBIA • Two periods: I untill the Criminal Code was adopted and came into force II from that on • IIn the first period Serbia had general and particular criminal legislation - General criminal legislation: The General Crimal Law – two criminal offenses Criminal Law of the Republic of Serbia – did not have a chapter prescribing the criminal offenses against the enviroment (criminal offenses against the economy – 8 and criminal offenses against poeple’s health and man’s enviroment – 5) - Particular legislation: (numerous acts, but the two important) Act on Ionic radiation protection (1) Act on prohibition of building a nuclear plant in FRY (1) • IIFrom 1.1.2006. – when new Criminal Code came into force: By the first time all criminal offenses against the enviroment were placed in separate chapter: The criminal offenses against the enviroment (chapter XXIV)

6. SOME CHARACTERISTICS OF THE CRIMINAL OFFENSES AGAINST THE ENVIROMENT: • The main protective object – the enviroment • Some of these criminal offenses contain descriptive conceptions which are undefined - In higher measure - оn the wider range - big proportion - longer time and big expenses needed to remove the damage • In most cases a perpetrator shall be punished if he has acted with the intent or the negligance, but 9 criminal offenses from these chapter can be comitted only with intent. (articl. 162, 266-269, 274-277 of the Criminal Code) • Criminal proceeding for these criminal offenses is instituted ex officio by the public prosecutor • The Code prescribes, in some cases, that a perpetrator shall be punished for the atempt. (article 265-3. 266-1 and 275-1,2 of the Criminal Code)

7. SOME CHARACTERISTICS OF THE CRIMINAL OFFENSES AGAINST THE ENVIROMENT: • In some cases the Code explicitly provides possibility that suspended sentence can be applied with order for the perpetrator to take prescrbed measures to protect, preserve and improve the enviroment(remedy measures): Article 260-264 and 266 • For the criminal offenses of poaching game and poaching fish the Code prescribes forfeiture of: - The objects used in perpetration of the criminal offenses - The objects of the criminal offenses • The perpetrator of the criminal offenses: physical person • The Criminal Code has not prescribed criminal liability of the legal persons • Last month (November 2008) Bill of responsibility of legal persons for criminal offenses has been adopted

8. SMALL JUDICAL STATISTIC: There is not the official statistic in 2002-2005 period concerning the number of: - Submitted criminal proceeding reports - The accused - The convinced adults for the criminal offenses against the enviroment There are the first relevant datas for 2006. year - The number of submitted criminal proceeding reports for the criminal offenses against the enviroment make 1,90% of the all reports submitted for all of the criminal offenses prescribed by the Criminal Code and the particular acts – 105701 for the criminal offenses perpetrated by the adults; number of the indicments – 1430 for these criminal offenses make 2,58% of all accused - 55369 for all criminal offenses perpetrated by the adults The convinced for the criminal offenses against the enviroment – 1009 make 2,44% of all convinced in the Republic of Serbia – 41422 during 2006. year

9. SMALL JUDICAL STATISTIC: • From these group of criminal offenses: - Forest theft: the biggest number of perpetrations, indicments and convictions - Devastation of the forest: the second place in the number of reports and the convicts - Poaching game: the third place in the numberof the reports and the convicted - Poaching fish: the last one worth to be mentioned - 32 convicted persons

10. SMALL JUDICAL STATISTIC: • During 2006. - all other criminal offenses (14) - less then the criminal offense with the least perpetrations of the 4 criminal offenses previosuly mentioned – poaching fish, in the number of the accused and the convictions – 19 • The structure of the convicted during 2006. for all of the criminal offenses from these group: - forest theft – 80,57% of all convicted - devastation of the forest – 7,33% - poaching game – 7,04% - poaching fish – 3,17% - all other criminal offenses (19) – 1,89% • The structure of the criminal sanctiones imposed for these criminal offenses: - suspended sentece – 52,63% of all imposed criminal sanctiones - fine – 31,02% - imprisonment – 13,18% - admonition 2,08% - conviction without punishment – 1,09%

11. SMALL JUDICAL STATISTIC: • For 2007. year there are inspection datas concerning the number of the submitted criminal proceeding reports for some criminal offenses

12. ABOUT THE JUVENILESIN SHORT: All this data are for adults. What’s the metter with juveniles? A juvenile is a person who, at the time the criminal offense is comitted, is more then 14 years and less then 18 years old The juveniles: the younger ones and the older ones No criminal sanctions can be applied to the children – persons who, at the time the illicite act, which is prescribed by the Law as a criminal offense is comitted, are less then 14 years old A younger adult – a person who, at the time the criminal offense is comitted is less then 21 years old, and meets other conditions, prescribed by the Law on the juveniles, allowing corective measures to be imposed, as in case of the juveniles

13. OFFICIAL STATISTIC FOR JUVENILES: • Official statistics for 2006. show that the criminal offenses against the enviroment are not among thows mostly comitted by the juveniles. There are 6 the most present criminal offenses • On the bases of the datas we posses we can claim that no one juvenile, who comitted mentioned criminal offenses, was imposed by the criminal sanctions such are juvenil imprisonment, the corective measures sending to the Institut for correction , but only measures of guiding and warning

14. OBSTACLES IN COURT PRACTICE: As for these criminal offenses and the number of perpetration, we can notice some problems: - Basicaly the officials do not recognise the importance of the search – by getting fast to the spot immediately, directly percepting the facts, engaging the inspection and issuing order for expertise, it is possible to determine the cause of the enviroment damage, what is important fot the whole legal procedure - Existing undefined conceptiones, still not cleared by the Criminal department of the Supreme Court of Serbia, such as: in higher measure, on the wider range, big proportion, longer time and big expenses needed to remove the damage - The judges in their decisiones do not still recognize the essence of the criminal protection of the forest - The judges as well as the other officials have no clear picture of the importance of the enviroment, nature protection, biodiversity and protection of the rare plants and animals, according to the domestic law as well as according to the international law

15. OBSTACLES IN COURT PRACTICE FOR JUVENILES: We have noticed some obstacles in the practice of the District Courts • The judges and the prosecutores for the juveniles do not recognize the importace of these criminal offenses and specially of theones related with the protection of the forests • The judges and the prosecutors have no clear picture of the importance of the enviroment, nature protection, biodiversity and protection of the rare plants and animals • We can see minimizing the importance of these criminal offenses • The juveniles are not imposed the corective measures – special obligations - doing ecology work without payment

16. CONCLUSION • Criminal Code by the first time has prescribed the criminal offenses against the enviroment as a particular group of the criminal offenses • So far, dominate role have so called ’’classical criminal offenses’’ , but it is important that there were judgements against physical persons for the “other” criminal offenses from these group during 2006 • Law on the juveniles, that came in force on 1.1.2006., as well as the new Criminal Law prescribes as a new kind of the corective measures – special obligations – doing ecology work without payment, and it can be helpfull for the juveniles to gain better understanding of the importance of the enviroment protection

17. PROPOSALS • Permanent education of the officals (police investigatores, prosecutors and judges) is in the best interest of our country, as well as meetings with labour inspection in order to improve the understanding of the the enviroment protection problems • This goal can be achieved through theory and practical training • It is also needed to provide training for judges in the other fields of the penal protections (economic violations and petty offenses) as well as in the field of civil legal protection • I suggest that all of the officials dealing with the juveniles should be permanently trained regarding the crimnal offeses against the enviroment

18. Questions and Answers Dragan Obradović,PRESIDENTDISTRICT COURT VALJEVOmail: okinf@nadlanu.com THANK YOU FORYOUR ATTENTION!