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Birds affected by the Prestige oil tanker spill disaster (file image). EP
'Environmental crime comes cheap in Spain': Shocking figures reveal the cases that don't make it to trial
Environment

'Environmental crime comes cheap in Spain': Shocking figures reveal the cases that don't make it to trial

One of the maxims of EU and Spanish environmental legislation is "the polluter pays". In other words, companies that cause ecological damage are liable and must repair it and bear the related costs. In practice, however, this is not the case...

José A. González

Madrid

Tuesday, 9 April 2024, 10:13

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Some 4,902 cases of crimes against protected species in Spain recorded between 2015 and 2020 have only resulted in 327 court sentences, just 6.67% of the cases.

A total of 93% of the cases did not even make it to trial, the figures show. The data was compiled by WWF together with the International Centre for Environmental Law Studies (CIEDA-CIEMAT), the University of Granada (UGR) and the Institute for Advanced Social Studies (IESA-CSIC). "This is just the tip of the iceberg. Environmental crimes come cheap in Spain," Carlos Javier Durá, researcher at CIEMAT's International Centre for Environmental Law Studies (CIEDA) said.

And it is not because Spanish legislation does not include them, but "because there is a lack of resources and specialisation of judges and prosecutors", said Isabel Pont, director of the Institute of Environmental Science and Technology (ICTA-UAB). "The first reference to the environment in our laws is in the 1978 Constitution." she said. Specifically in article 45 of the Magna Carta which states in point one: "Everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it". And it adds in the third section that "for those who violate the provisions of the previous section, under the terms established by law, criminal or, where appropriate, administrative sanctions will be established, as well as the obligation to repair the damage caused".

However, it was not until 20 April 1995 that the first criminal sanction, the first prison sentence for an environmental crime, was handed down. The convicted person was Josep Puigneró, a businessman in the textile sector. He was punished for the dumping of polluting substances into several tributaries of the River Ter (Catalonia) between 1990 and 1993. He copped four years' imprisonment. This was an unprecedented case and later led to the reform of the penal code to make these offences more severe.

Then came Organic Law 10/1995 which imposed "prison sentences of six months to two years, fines and special disqualification for a profession or trade for a period of one to two years". In serious cases, the penalty was increased to five years. "In practice, few people have gone to prison, because the sentences hardly exceeded two years and if you don't have a criminal record you don't go to prison," Durá said. Or, directly, "responsibility is not determined", said Juan López de Uralde, environmentalist politician and founder of the Green Alliance party. "Many times these cases are closed because the perpetrator is not known," Durá said. "Or there is a business network behind them that makes it difficult to get to the person responsible," de Uralde added.

Reform of the penal code

The Puigneró case brought about a reform of the penal code. The Aznalcóllar and Prestige disasters modified article 325 , but it was not the last one. After that of 2003, came that of 2010 to arrive at the current one of 2015. "Our legislation is tougher than in other countries around us," said Pont. However, "they are not prosecuted with the same harshness as other crimes", the Spanish politician added. "It is still treated as a minor problem. Yes, there is a public prosecutor's office for the environment, but we have had interviews with public prosecutors who treat a case of gender violence just as they handle a case of birds, as they say," said Durá. The three of them once again pointed out a "lack of specialisation". "The new European directive that calls for more resources for judges, prosecutors and police tries to solve this," explained the UAB professor. "Many times they don't consider it a crime," Durá said. "Although they are simply shelved due to lack of knowledge," she added.

"Everyone understands that a murderer has to be convicted for the act he has committed, right? Well, everyone believes that an environmental offender should not be convicted, and that cannot be"

The researcher acknowledged that many files or complaints are processed through criminal proceedings. "But there are two types of liability, such as administrative liability," he said. It is true that most of the cases that are judged go through the administrative section and usually end in fines. However, "when they go through criminal proceedings and the case is closed because the perpetrator cannot be determined, the official should pass it on to the administrative body on duty and it doesn't happen," he added. "We have to raise awareness."

Who pollutes, pays?

One of the maxims of EU and Spanish environmental legislation is "the polluter pays". In other words, companies that cause ecological damage are liable and must repair it and bear the related costs. In practice, however, this is not the case. "There is a lot of legal chicanery and it is difficult to get to the guilty company," said Juan López de Uralde. "Remember the Prestige oil spill?"

A group of volunteers clean the beaches of Galicia in Muxía.
A group of volunteers clean the beaches of Galicia in Muxía. Jaime García

The public prosecutor's office in 2013 estimated the losses from this environmental catastrophe would reach 4.328 billion "in the medium term". The Supreme Court recognised Spain was entitled to compensation of 1.573 billion for the spill. However, only 1% of this figure has been received. "And what about Aznalcóllar," the Spanish environmentalist pointed out.

Toxic sludge

In April 1998, the tailings pond of the Aznalcóllar mine (Seville) and millions of cubic metres of toxic sludge and acidic water contaminated more than 4,500 hectares of Andalusian land. A disaster for which the Spanish government and the Andalusian regional government claimed 132.7 million euros from Boliden Apirsa, the subsidiary of the Swedish company Boliden. 26 years later, the public coffers have not received a single euro.

These are not the only cases in which nature and state coffers have been harmed. Fires, chemical pollution, toxic waste... The environmental entries in the national accounts are extensive, but the total amount paid in is zero euros.

The new board

The European Commission's new directive aims to put an end to this. "The aim is not to put more people in jail, but to dissuade them from committing crimes against the environment," said the director of the Institute of Environmental Science and Technology (ICTA-UAB). "It is a very interesting regulation that will make us reflect on its transposition into our legal system," she added.

Recently approved by the European Council, this regulation replaces 2008/99/EC and 2009/123/EC. "Brussels saw that they were poorly implemented in the member states," Pont said.

"Environmental crime is still treated as a minor issue in the courts"

The new text agreed in Brussels, which came into being under the Spanish presidency of the European Union, increases prison sentences to 10 years in some cases and the list of punishable crimes increases from nine to 20. In previous texts it was more extensive, Pont said. Since April in Europe, trafficking in timber, illegal recycling of polluting ship components and serious breaches of chemicals, among others, have been more punishable.

"This is a major breakthrough," said leading environmental organisations after the adoption of the text. In addition, offenders will be obliged to restore the damaged environment and face fines. For companies, these financial penalties will represent between 3-5% of their annual global turnover or, alternatively, 24 or 40 million euros, depending on the nature of the offence. "Yes, this is a step forward," said de Uralde. "But this problem is not solved with a directive, it is a problem of awareness. Everyone understands that a murderer has to be sentenced for the act he has committed, right? Well, everyone understands that an environmental criminal should not be condemned, and that cannot be."

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