Environmental inspections as coordinated by Belgian Environmental Prosecutors

1. Environmental inspections as coordinated by Belgian Environmental Prosecutors Dr. Carole M. Billiet U.Gent, Center for Environmental and Energy Law & Flanders Environmental Enforcement Court Malta, IMPEL-Conference 1-4 October 2013

2. Informal system-induced coordination of environmental inspections by prosecutors • Introduction • The public prosecutor’s system position: some essential features • Dependency of the criminal sanctioning track from the input of inspections / police • Cost-effectiveness issues higher up should shape the work bottom down: the proof issue • Informal complementarities creating coordination

3. I. Introduction • Enforcement pyramid: • sanctions (punitive, remedial), ‘teeth of the law’ • Public prosecutors decide about the access to criminal sanctions (principally punitive) • Environmental Lawforce project (2007-2011) • A.o. database criminal sanctioning track • Full environmental case-load of the resort of the Court of Appeal of Ghent in 2003-2007 • 1156 judgments, 1882 defendants, 3561 accusations

4. II. The public prosecutors system position: some essential features 1/ Dependency from environmental inspections and police: a case-load by notices of violation 2/ A legally protected privilege/duty to develop an enforcement policy (no prosecution guideliness) Prioritized offences - Agreement 2000 and 2012 3/ A system-position as sanctioning playmaker Untill 1999/2009: 3 options Since then: 4 options (+ administrative fining) 4/ Necessity of cost-effectiveness Too scarce means for too much work 5/ Burden and risk of proof in accordance to the presumption of innocence (art. 6(2) ECHR)

5. III. Dependency of the criminal sanctioning track from the input of inspections/police Far reaching dependency of the criminal sanctioning track from the input of environmental inspections and police Some empirical data

6. III. …III.1. Notices of violation open files • General descriptive statistics (2007) • 98% of the environmental files is opened because of a notice of violation (NOV) • The remainder (direct complaints): 2% • Confirmation – Data Flemish Region 2010 • NOV police: 65,5% • NOV environmental inspections: 29% • Other (NOV too): 4,5% (other files, …) • Direct complaint: 1%

7. III. …III.2. The focus of inspections • Not a single accusation regarding • Non-ionizing radiation Act 1985 • Environmental Taxes Act 1993 • Ionizing radiation Act 1994 • Ecolabel Act 1994 • Cooperation Agreement 1995 on Packaging Waste • Product Standards Act 1998 • Marine Environment Act 1998 • Seveso II Cooperation Agreement • Near to no accusations regarding • Air Pollution Act 1964 • European environmental regulations in general

8. III. …III.2. The focus of inspections … • Many accusations regarding • Environmental Permitting Act 1985 (38%) • Waste Act 1981 (31%) • Manure Act 1991 (9%) • Noise Act 1973 (5%) • Accusations regarding • Pesticides Act 1969 • Surface Water Act 1971 • Groundwater Act 1984 • General Environmental Policy Act 1995 • Soil Cleanup Act 1995

9. III. …III.3. The quality of notices of violation • Data 1993-2002: 57% dismissals, of which half for technical reasons (lack of proof of the illegal facts, the offender (‘unknown offender’)) • 2010 (Flemish Region):55% dismissals, of which still 40% for technical reasons

10. III.III.4. For discussion What to make about the non-existence of half of the (EU-based) environmental legislation in the sanctioning process? The drafting technique of notices of violation keeps needing conceptualisation (‘NOV’s for Dummies’) and training • For local police only?

11. IV. Cost-effectiveness issues higher up (should) shape the work bottom-down The issue of proof - of the illegal behavior/facts and of the criminal liability - is at the heart of the prosecution decision, shapes the prosecution policy, in terms of cost-effectiveness too.

12. IV. …IV.1. The burden and risk of proof • Art. 6(2) ECHR: “Everyonechargedwith a criminaloffenceshallbepresumed innocent untillprovedguiltyaccordingtolaw” • Barberà, MesseguéandJebardo v. Spain (1988) • Burden of proof • Risk of proof • Proof of the constitutive elements of the offence

13. IV. IV.2.Enforceability of legal provisions Proof of the constitutive elements of the offence Someexamples • Air planenoise (Brussels) • Forestprotectiondecree (FlemishRegion) > Be aware of thiscrucial point whendraftingNOV’s

14. IV. …IV.2. Enforceability of legal provisions The technical side of the formulation of standards Someexamples: • Noise • Constatationthrough the senses • as opposedtomeasurements • Emissionandimmission standards - specificphysical/chemical/microbiologic parameters • in specific units, simpleto more complex • + specified levels (instantaneous vs. calculated, avarage/ percentile over given time spans)

15. IV. …IV.3. Alpha provisions • ‘Alphaprovision’: the concept • Three categories • … • Obligationto have anauthorization (‘permit’, …) • Secundary standards thatcontributeto the transmission of information to the administration • Examples • Remember Al Capone

16. IV.IV.4. For discussion The drafting of a NOV serves the prosecution (punitive sanctioning). As such, an eye for the issue of proof matters, even if it means a selection of the offences reported in the NOV

17. V. Informal complementarities creating informal coordination Oneexample: the use of the prosecutiondecisiontoachieve remedial action EnvironmentalLawforce project • PO: opportunity dismissalsand transaction proposals are linkedto remedial action, • EPA: a systematicpractice of preciserecommendationsfor remedial action linkedtodelays, leadingtoremediation in +90% of cases Since 2009?

18. V. …For discussion Informal complementarities need to be detected and taken into account in policy development by enforcement actors

19. Thankyouforyour presenceand attention