The Spanish regulation of enviromental crime

The Spanish Criminal Code following the transposition of Directive 2008/99

Luis Ramón Ruiz RodríguezUniversity of Cadiz

Article 325 BEFORE DIRECTIVE UE1.Whoever, breaking the laws or other provisions of a general nature that protect the environment, directly or indirectly causes or makes emissions, spillages, radiation, extractions or excavations, filling with earth, noises, vibrations, injections or deposits, in the atmosphere, the ground, the subsoil or the surface water, ground water or sea water, including the high seas, even those affecting cross border spaces, as well as the water catchment basins, that may seriously damage the balance of the natural systems shall be punished with a sentence of imprisonment from six months to four years, a fine from eight to twenty-four months and with special barring from his profession or trade for a period from one to three years. Should there be risk of serious damage to the health of persons, the sentence of imprisonment shall be imposed in its upper half

2.Who willfully release, issue or enter ionizing radiation or other substances in the air, land or maritime, continental, surface water or groundwater, in amount that produces in a person death or disease which, in addition to a first medical assistance, required medical or surgical treatment or produce irreversible consequences, will be punished, in addition to the penalty that corresponds by the damage caused to persons, with imprisonment from two to four years.

Article 325 AFTER DIRECTIVE UEWhoever, breaking the laws or other provisions of a general nature that protect the environment, directly or indirectly causes or makes emissions, spillages, radiation, extractions or excavations, filling with earth, noises, vibrations, injections or deposits, in the atmosphere, the ground, the subsoil or the surface water, ground water or sea water, including the high seas, even those affecting cross border spaces, as well as the water catchment basins, that may seriously damage the balance of the natural systems shall be punished with a sentence of imprisonment from two to five years, a fine from eight to twenty-four months and with special barring from his profession or trade for a period from one to three years. Should there be risk of serious damage to the health of persons, the sentence of imprisonment shall be imposed in its upper half.

Paragraph 2 deleted

Article 326 BEFORE DIRECTIVE UE

A punishment higher in one degree shall be imposed, without prejudice to those that may be appropriate pursuant to other provisions of this Code, when commission of any of the acts described in the preceding Article takes place with any of the following circumstances concurring:

a) When the industry or activity is operating unlawfully, without having obtained the requisite authorisation or administrative approval of its facilities;

b) When the specific orders by the administrative authority on correction or suspension of the activities defined in the preceding Section have been disobeyed;

c) When information on the environmental aspects thereof has been forged or concealed;

d) When the inspection activity of the Administration has been hindered;

e) When a risk of irreversible or catastrophic deterioration has ensued;

f) When there has been unlawful extraction of water during a period of restrictions.

Article 326 AFTER DIRECTIVE UE

Unchanged

Article 327 BEFORE DIRECTIVE UE

In all the cases mentioned in the two preceding articles, the Judge and Court may agree to any of the measures referred to in points a) or e) of Article 129 of this Code

Article 327 AFTER DIRECTIVE UE

When, pursuant to the terms established in Article 31 bis a legal person is responsible for the offences established in the preceding two Articles, it shall have the following penalties imposed thereon:

a) Fine from two to five years, if the offence committed by a natural person has a punishment foreseen of imprisonment exceeding five years;

b) Fine from one to three years, in the rest of the cases.

Pursuant to the rules established in Article 66 bis, the Judges and Courts of Law may also impose the penalties established in Sub-Sections b) to g) of Section 7 of Article 33.

Article 328 BEFORE DIRECTIVE UE

A sentence of imprisonment of five to seven months, a fine from ten to fourteen months shall be imposed on whoever establishes deposits or landfills of solid or liquid waste or residues that are toxic or hazardous and may seriously damage the balance of natural systems or the health of individuals.

Article 328 AFTER DIRECTIVE UE1. A sentence of imprisonment of six months to two years, a fine from ten to fourteen months and special barring from profession or trade for a term from one to two years shall be imposed on whoever establishes deposits or landfills of solid or liquid waste or residues that are toxic or hazardous and may seriously damage the balance of natural systems or the health of individuals. 2. The same punishment foreseen in the preceding Section shall apply to whoever, breaching the laws or other general provisions, carries out exploitation of installations where a hazardous activity is perpetrated, or where hazardous substances or preparations are stored or used, that cause or might cause death or serious injury to persons, or substantial damage to the quality of the air, soil quality, water quality, or to animals or plants. 3. A sentence of imprisonment from one to two years shall be imposed on those who, when assembling, transporting, recycling, eliminating or recycling waste, including omission of the duty of surveillance of such procedures, seriously endanger the life, integrity or health of persons, or the quality of the air, ground or water, or animals or

plants.

4. Whoever, breaching the laws or other general provisions, transports a major quantity of waste, both in the case of one as well as several related transfers, shall be punished with a sentence of imprisonment from one to two years.5. When, due to the conduct foreseen in the preceding Sections, in addition to the risk considered, a result an injury that constitutes a felony ensues, whatever its seriousness, the Judges or Courts of Law shall only consider the most seriously penalised offence, applying the upper half of the punishment.6. When, pursuant to the terms established in Article 31 bis, a legal person is responsible for the offences defined in this Article, it shall have the following penalties imposed thereon:a) Fine from one to three years, or of two to four times the damage caused when the resulting amount is higher, if the offence committed by a natural person has a punishment foreseen of more than two years custodial sentence;b) Fine of six months to two years or of two to three times the damage caused if the resulting amount is higher, in the rest of the cases.Pursuant to the rules established in Article 66 bis, the Judges and Courts of Law may also impose the penalties established in Sub-Sections b) to g) of Section 7 of Article 33.7. When, in committing any of the acts foreseen in the preceding Sections of this Article, any of the circumstances established in Sections a), b), c) or d) of Article 326 concur, the penalties shall be imposed higher by one degree to those respectively foreseen, without prejudice to those that might be appropriate pursuant to other provisions of this Code.

Article 329 BEFORE DIRECTIVE UE1. The authority or public officer who, knowingly, has reported favourably on granting manifestly unlawful permits that authorise operation of the polluting industries or activities referred to in the preceding Articles, or who has silenced breach of laws or provisions of regulations of a general nature thereon during his inspections, shall be punished with the penalty established in Article 404 of this Code and, moreover, with that of imprisonment from six months to three years and a fine from eight to twenty- four months.

2. The same penalties shall be applied to the authority or public officer who, himself or as a member of a collegiate body, may have resolved or voted in favour of such granting, being aware of the injustice thereof.

Article 329 AFTER DIRECTIVE UE1. The authority or public officer who, knowingly, has reported favourably on granting manifestly unlawful permits that authorise operation of the polluting industries or activities referred to in the preceding Articles, or who has silenced breach of laws or provisions of regulations of a general nature thereon during his inspections, or who has omitted the carrying out of the mandatory inspections, shall be punished with the penalty established in Article 404 of this Code and, moreover, with that of imprisonment from six months to three years and a fine from eight to twenty- four months.2. The same penalties shall be applied to the authority or public officer who, himself or as a member of a collegiate body, may have resolved or voted in favour of such granting, being aware of the injustice thereof.

Article 330 BEFORE DIRECTIVE UEWhoever seriously damages any of the elements of a protected natural space that were used to classify it as such, shall incur a sentence of imprisonment from one to four years and a fine of twelve to twenty- four months.

Article 331 BEFORE DIRECTIVE UEThe acts foreseen in this Chapter shall be penalised, as appropriate, by the lower degree punishment, in their respective cases, when committed by serious negligence.

Article 330 AFTER DIRECTIVE UEUnchanged

Article 331 AFTER DIRECTIVE UEUnchanged

Common provisions

Article 338When the conduct defined in this Title affects any protected natural space, the penalties shall be imposed higher by one degree to those respectively foreseen.Article 339The Judges or Courts of Law, reasoned, could order adoption, at the expense of the doer, of the necessary measures aimed at restoring the ecological balance disturbed, as well as any other precautionary measure required to protect the assets safeguarded under this Title.Article 340Should the principal of any of the acts defined in this Title have voluntarily proceeded to repair the damage caused, the Judges and Courts of Law shall impose the lower degree punishment of those respectively foreseen.

Common provisions

Article 338Unchanged

Article 339The Judges or Courts of Law shall order adoption, at the expense of the doer, of the necessary measures aimed at restoring the ecological balance disturbed, as well as any other precautionary measure required to protect the assets safeguarded under this Title.Article 340Unchanged