Prosecuting a suspected case of illegal traffic

Workshop for Central and Eastern Europe countries on the prosecution of illegal traffic of hazardous and other wastes under the Basel Convention

Juliette KohlerUNEP Secretariat of the Basel Convention

26 and 27 June 2012

Contents

1. Why prosecute?2. Defining elements of the

crime3. Whom to prosecute and for

what?4. Obtaining evidence 5. Cooperation and assistance 6. Penalties and sentencing7. Staying informed about

illegal traffic

Why prosecute?

• Why do people carry out illegal shipments?

– To save money or to make profits at the expense of human health and the environment

– By ignorance of applicable laws and regulations

Why prosecute?

• Why enforce laws pertaining to illegal traffic of waste?

– Negative consequences on our health and our environment

– Deter and punish violations of environmental law

– Strengthen the credibility of environmental requirements and the rule of law

– Ensure fairness to those complying with the law (equal level playing field)

Possible consequences:

– Out-of-court settlements

– Administrative sanctions

– Civil measures

– Criminal procedures

Why prosecute?

Administrative sanctions

• Usually applicable where there are deficiencies in the application of the specific movement and notification process

• De minimis offence (eg. low quantity of waste involved)• Expeditious procedure• Possible consequences:

– notices requiring actions to be taken (or ceased) – fines or sanctions (eg. loss of license)

Why prosecute?

Civil measures• To address reparation of the damage caused (restoration

and/or compensation)• The flexibility of civil measures may help to promote

improved compliance without involving the legal requirements of prosecution

• Civil undertakings and outcomes may be more proportionate, cost-effective and

can be dispensed more rapidly

Why prosecute?

Criminal prosecution– Jurisdiction?– Trigger: ex officio or following a complaint?– Opportunity of prosecuting? (if applicable)

• Weigh the extent of the damage against that of the culpable conduct

• Which jurisdiction has the best chances of leading to a conviction?

• Consider the reasonable chances of success of a prosecution, eg.

– complexity of the case– what are the possible, and most appropriate, remedies– have other offences under domestic legislation been

committed?– the availability of resources to conduct investigations and

gather evidence

Why prosecute?

Constitutive elements of the crime• Whether a substance or good is a ‘waste’• Whether the waste is ‘hazardous’ or ‘other’• Whether a ‘transboundary movement’ has

occurred• Whether any of the elements in (a) to (e) in

Article 9, paragraph 1 is deemed to have taken place

Defining elements of the crime

Proving the existence of a ‘waste’ that is ‘hazardous’ or ‘other’

• Often difficult to prove as the definition relies partly on subjective elements (the “intention” to dispose)

• Wastes are often mixtures of various substances, whose contaminating or hazardous components may only be revealed by further laboratory testing

• Legal frameworks sometimes do not provide sufficient clarity

Defining elements of the crime

• Whether a ‘transboundary movement’ has occurred: what is the State of export, are their transit States?

Defining elements of the crime

Illegal traffic?• If one of the elements listed in Article 9,

paragraph 1 is satisfied, the transboundary movement is deemed to be illegal traffica) Without notification

b) Without consent

c) With consent obtained through falsification, misrepresentation or fraud

d) Doesn’t conform with the documents

e) Results in deliberate disposal

Defining elements of the crime

1. 1. Who can potentially be prosecuted: individuals or legal entities?

• Generator, exporter, importer, intermediaries (freight forwarder, broker, shipping facilitator, coordinator etc), shipper/transporter, disposer, public authorities

• 2. For what offenses? • Offenses in addition to the illegal traffic: e.g. theft, assault,

falsification of records, forgery, manslaughter

• 3. With what level of culpability?• Principal offender committing the crime • Accessory to the crime (offender aiding or abetting to commit the

crime of illegal traffic)• Offender conspiring or attempting to commit or participating in the

commission of the crime

Whom to prosecute and for what?

Cooperation between investigating authorities, enforcement agencies and prosecutors within and between different jurisdictions

• Case management

Article 9, paragraph 5:• ‘…Parties shall co-operate with a view to

achieving the objects of this article’.

Obtaining evidence

See ‘Basel Convention Training Manual on Illegal Traffic for Customs and Enforcement Agencies’ for guidance on the collection of evidence

Obtaining evidence

• Different approaches exist in relation to investigation and enforcement– European Union: overarching regulation to implement

the Basel Convention– England and Wales: Environment Agency’s own

prosecution service– The Netherlands: environmental crimes as economic

crimes; all criminal investigations overseen by Prosecution service

– Norway: National Authority for Investigation and Prosecution of Economic and Environmental Crime

Cooperation and assistance

International cooperation: obtaining evidence from abroad

1.Mutual legal assistance • Mutual obligations arising from bilateral or multilateral

agreements

2. Informal cooperation (mutual administrative assistance)• Between law enforcement agencies (underpinned by

a memorandum of understanding)• To exchange information taken from public access

databases in the country concerned

Cooperation and assistance

• Sentences are a matter for the relevant court or tribunal

• Maximum penalties are typically found in the relevant national legislation

• Mitigating and aggravating circumstances may be taken into account

• Sentencing guidelines are available in some jurisdictions

• Consistency in sentencing is important

Penalties and sentencing

a) Basel Convention website

b) ECOLEX

c) Institutions involved in enforcement

d) National associations of lawyers

e) Specialized training from governmental and non-governmental organizations

f) Judges Programme (UNEP)

g) Prosecutor and judge networks

Staying informed about illegal traffic

For more information:

See the Instruction manual for the legal profession on the prosecution of illegal traffic (UNEP/CHW.10/12/Add.1)