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ASIAN REGIONAL SYMPOSIUM. ENVIRONMENTAL LAW AND ENFORCEMENT IN BRAZIL Manila, Phillipines , 27-28, July , 2010. Vladimir Passos de Freitas Former Chief Judge of Federal Court of Appeal 4th. District ; Professor PhD of Environmental Law.
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Vladimir Passos de Freitas
Former Chief Judge of Federal Court of Appeal 4th. District; Professor PhD ofEnvironmental Law
Administrative penalties are ruled by federal and state laws (sometimes by municipal laws). E.g.: if someone pollutes a river, he must pay between US$ 2,500 and US$ 25,000,000 (depending on the effects).
Civil penalties. The responsibility is objective. The convicted person has to repair the damage and pay damages to a Fund of Environmental Protection. We have thousands of precedents.
Criminal penalties. Law 9.605, 1998. More serious crimes, such as pollution (prison between 1 and 5 years), can result in prison. Corporations are convicted by environmental crimes.
Brazil doesn´t have Administrative Justice as in France, so all the environmental problems go to the Judiciary Power.
The Judiciary Power has administrative and financial autonomy (Constitution, clause 99). We have around 15,000 judges. They receive good salaries and have guarantees, such as lifelong function and can’t be removed from their local of work.
Brazil is a Federal State and has federal and state judges (like US, Australia, Argentina, etc.)
In 1973, in a popular action, Judge Rabello decided a case about a building, constructedwithoutsanitarytreatment, thatdischargedsewageintothesea. Judge Rabello prohibitedthebuilding to behanded to theowners. Butlater, theCourtofAppealreversedthispioneerdecision.
(Itanhaém, SP, StateDistrictCourt, suit nº 1.700/73, in 15/4/1974)
Civil appeal. Public civil action. Environmental law. Non prescriptible. Appeal granted.
1. Prescription is the temporal institution that limits the creditor’s right to perform his intention, so that the debtor won’t be ad aeternum subject to charge. 2. However, environmental rights, due to their transcendental importance for the future generations, aren’t prescriptible. 3. Appeal received and sustained to revoke the prescription indictment.
(Minas Gerais State Court, Apel. Cível 1.0188.07.063974-8/001, 2nd. Civil Panel, Judge Caetano Levi Lopes, j. 22/09/2009)
THE FEDERAL COURT DECIDED THE FIRST APPEAL IN BRAZIL CONVICTING A LEGAL ENTITY - ENGINEERING COMPANY THAT EXTRACTED SAND FROM A RIVER WITHOUT THE LICENSE OF THE COMPETENT ORGAN, DESTROYING THE LOCAL VEGETATION. THE COMPANY DIDN’T STOP ITS ACTIVITIES EVEN AFTER BEING NOTIFIED. AT LAST IT WAS SENTENCED TO PAY AROUND US$ 5.000 AS MONETARY PENALTY, WHICH WAS MEANT TO REPAIR THE DAMAGE.
THE DIRECTOR OF THE COMPANY WAS ALSO CONVICTED. HIS PENALTY WAS 1 YEAR IN PRISON, CONVERTED TO COMUNITARY WORK
The evidences will be more and more technologic.
NGO AMAR AND ASSOCIAÇÃO ATMOSFERA X MUNICIPALITY OF CURITIBA AND FEDERAL ENVIRONMENT AGENCYJUDICIAL ACTIVISM: FEDERAL ENVIRONMENTAL COURT OF CURITIBA, PARANÁ STATE
partners, the State of Santa Catarina
and the Federal Union, aiming the
recovery of the environmental
damages caused by the
exploitation of mineral coal in
the south region of the State
convicted the coal enterprises and, in the
hypothesis of their insolvency, their
Public hearings and creation of monitoring.
Creation of a technical assessment group to the district court. The discussion becomes technical, not judicial.
This is a successful case in the enforcement of a complex environmental judgement.
because in the conflict between the
interests of the families and the possible
lack of water in the future for the
population, the protection to the millions
of inhabitants of São Paulo should prevail.
But: a) there are 250 families in theareaandit´s verydifficult to move them out; b) the legal decisionhasn’tbeencompliedwithup to themoment.
Environmental Court of Appeal, Stockholm
(more 5 EnviromentalDistrictCourts)
FIRST ENVIRONMENTAL DISTRICT COURT
CIVIL AND CRIMINAL COMPETENCE INCLUDES THE CAPITAL CITY AND SOME CITIES NEARBY.
THE COURT OF APPEALS OF SP (PERHAPS THE BIGGEST IN THE WORLD, WITH 360 JUDGES) CREATED IN 2005 A SPECIALIZED ENVIRONMENTAL BOARD.
IT DECIDES ONLY CIVIL DAMAGES CASES.
THE DECISIONS ARE TAKEN IN A SHORT TIME, WITH A GOOD TECHNICAL QUALITY.
This year 4 Federal Environmental District Courts were created by the Federal Council of Justice in the Amazon Region, in different States.
This is a real change of mentality.
1) To include Environmental Law in the program of public exams for judges and organize capacity building courses for them.
Besides the judges, also for the servants of the Judicial Power, because (in Brazil) they help the judges in their decisions.
2) To reconstruct the story of the Environmental Law, by interviewing judges who gave the first decisions and paying tribute to them. The initiative could be taken by environmental agencies, UNEP, NGOs and environmental foundations, universities or corporations.
3) To organize essay contests for judges on Environmental Law. It is a wonderful way to motivate judges to study Environmental Law. The prizes may be the participation in international congresses
4) To invite the stakeholders of the Judiciary Power and the leadership of judges to participate in some activities (e.g. to be examiners in essays contests or to chair panels in congresses), so that they would be introduced into Environmental Law and would be able to evaluate its importance.
5) To encourage the extensive application of International Agreements for crimes of “money laundry”, namely “Palermo Convention”, to environmental crimes whose effects, directly or indirectly, cross the borders and affect people of other countries. It meansresponsibility of corporations, confiscation of assets, extradition and mutual judicial assistance and simplified gathering of evidence.
6) To be an example, the Judiciary, as a public power, should adopt the practice of environmental management. Thus, in their administrative action, Tribunals should encourage the economy of electricity, water and paper, e.g. by introducing the use, even partial, of non-chlorinated paper.
“ In the Phillipines, land of the leading case about environmental protection for the future generations (A. Oposa x Factoran, 1993) I wish I had left the hope in the power of the Law to change the devastation.”
and to the organization for
Vladimir Passos de Freitas