Abstract
This report provides an overview of the main instruments, actors and institutions relevant in the fight against environmental crime in Italy. The study, based on the analysis of legislative documents, academic literature and case law, covers substantive and procedural aspects. Interviews with high-level practitioners (prosecutor, judge, specialised police, administrative authority) were conducted, in order to provide an assessment of the strengths and shortcomings of the regulatory framework and its enforcement and to formulate experience-based recommendations.
The enactment of Legislative Decree 3 April 2006, No. 152, the so-called Environmental Code, represents a milestone in Italian environmental legislation. It aimed to harmonise the sectorial laws that up to that moment had been regulating the main environmental issues: waste management, water pollution, air pollution. However, relevant environmental issues (such as e.g. the protection of flora and fauna) are covered by other statutes.
Criminal protection of the environment is almost entirely based on a series of misdemeanours (contravvenzioni), which fall outside the Criminal Code. Criminal offences on waste management, water pollution and air pollution are mainly provided for by the Environmental Code; however, offences in other relevant environmental sectors are provided for by different statutes.
Significant effects accompany the legislative choice to qualify the vast majority of environmental crimes as misdemeanours: if the misdemeanour model, on the one hand, implies that criminal conduct is relevant when committed either intentionally and negligently, on the other hand, it implies modest sanctions, and results in a restriction of the imposition of criminal sanctions due to general rules e.g. on the statute of limitation, which negatively affects their deterrent effect.
Some few felonies exist, the most relevant one being the felony of “Organised activities for the illegal trafficking of waste” provided for by Article 260 of the Environmental Code. This criminal provision could represent a significant model at European level for the prosecution of environmental crimes in which organised crime plays a role.
Legislative Decree 7 July 2011, No. 121, implementing Directive 2008/99/EC on environmental crime and Directive 2009/123/EC on ship-source pollution, did not bring a substantial reform of Italian environmental criminal law, as on the contrary expected by most of the scholars and by practitioners. However, it extended the system of “administrative liability” of legal persons and collective entities to listed environmental crimes committed in their interest or to their benefit; this innovation, although not fully satisfactory, represents a remarkable step in the development of instruments aiming at better fighting environmental crime.
A draft bill, approved by the Chamber of Deputies and currently under discussion in the Senate, aims at introducing four new felonies into the Criminal Code: pollution, environmental disaster, obstruction of controls, illegal transport and abandonment of radioactive materials. The new provisions, if approved, would be in addition to the misdemeanours provided by the Environmental Code and by other environmental statutes. The introduction of environmental felonies into the Criminal Code would represent the completion of a process of progressive recognition of the value and significance of the environment and its adequate protection; according to practitioners, such a reform would produce a relevant added value in terms of increased effectiveness of environmental legislation and its enforcement.
