Rapport de la Cour suprême de cassation de Bulgarie sur le droit pénal de l’environnement (version anglaise)

Madame Emanuela Konstantinova Balevska

Juge à la Cour suprême de Bulgarie

Le droit de l’environnement
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Bulgaria is a European state, whose citizens take few actions on a daily basis to protect the environment. According to a recent survey, 36% of all Bulgarians do not do anything for the environment. Very few households collect their waste separately, and only 38% of the interviewees cut back on power, and 24% cut back on water. This is caused by the high cost of power and water, so the reasons are economical, and not environmental. The government, with its bodies and institutions, is aware that these problems will have to be solved – each citizen will need to be made aware of the challenges of the negative trends of the environment and his own responsibility as an element and factor of this environment.

Global warming and negative impact of climate change, the industrial and household pollution of the air and water basins, require the government and individuals to protect and maintain natural resources by cutting back on power and water, waste treatment, production equipment safety, finding alternative sources of energy. The greatest current problems for Bulgaria are the extension of protected areas and ban on negative impact activities, disposal and limiting of emissions of industrial factories, and creating a set of adequate sanctions – both administrative and criminal – to limit the damage on the environment.

Harmonization of Bulgarian legislation with EU legislation in the area of environment requires knowledge and implementation of Directives, adopted in this area, and full compliance of domestic legislation with international conventions.

National Criminal Legal Protection of the Environment

The Criminal Code of the Republic of Bulgaria is divided into two parts – general and particular, and each part contains Chapters and Sections, detailing the respective material.

Chapter ІІ of the Particular part of the Criminal Code, sections III and, to some extent, V, contains the provisions ensuring protection against damage of the environment by individuals regarding various components of the environment.

Section III – Crimes against human health and environment contains general provisions for protection of the environment as a subject of criminal damage on the territory of the Republic of Bulgaria. The overall criminal and legal protection is regulated by the provisions of art. 352, art. 352a, art. 353, art.353a and 353b of the Criminal Code. Any individual (domestic or foreign) who pollutes or allows pollution of water basins, ground waters, or territorial or internal sea waters, soil, or air, resulting in hazard to people, animals, or plants, and making them unfit for use, shall bear criminal liability, and depending on the degree of the offense, the cumulative punishments may be imposed: imprisonment up to 5 years, and fine up to BGN 5000, /for average monthly salary of BGN 300-400 and exchange rate of USD 1= BGN 1.250 /. The quoted provisions of the Criminal Code regulate the criminal defense in the hypotheses of pollution of watershed areas in settlements and resorts, pollution with petrol-based products and their derivatives of territorial and internal sea waters and/or areas, under international agreements, signed by the Republic of Bulgaria. According to the Criminal Code, criminal liability shall be borne by any official who launches a factory or power plant before installation of treatment facilities, as well as an official who conceals information or disseminates false information on the quality of environment – air, soil, water, or sea territories. (This a provision, introduced in the code after the disaster with the nuclear power plant in Chernobyl, Ukraine, and the subsequent effects on the environment in Bulgaria. )

In Chapter VI, section I General economic crimes, and section II, Crimes in different industries, although different sectors and goods of the economy are subject to protection, these bear the characteristics of environmental elements, and thus they are ensured an indirect protection from the viewpoint of environmental protection. Thus, the provisions of art. 278c, art. 221a, art. 236, art. 237, art. 238, art.239, and art.240 of the Criminal Code, serve to provide criminal legal protection against acts of commission and/or omission, which violate regulatory requirements on storage, supervision, and/or management of a business activity, deliberate or careless permission of illegal construction in protected areas, destruction or damage of the areas, and grazing land or agricultural land. The quoted provisions of the Criminal Code, protect the environmental components – soil, air, water against any activity without due permission, against cutting wood in protected forests, destruction or damage of young trees and protected forest species; protect against hunting without permission, of large game, and fishing by explosives, in a protected aquatic area, and/or endangered species, during the reproductive period. An example of such is fishing in the territorial waters of Black Sea, fishing of turbot, etc.

The role of judiciary institutions in Bulgaria – courts, prosecution, and investigation - for the implementation of the established criminal legal protection, described in this report, is crucial. Institutions strictly monitor the correct implementation of the law, both in letter and in spirit, in the context of international standards, which postulate the main regulations for protection of the environment in which we live and rear our children, for future generations. Although the environmental protection rules are not in the focus of attention of law-enforcement authorities, Bulgaria’s accession to the European Union in 2007, and its adoption of common European values, where the environmental protection and limiting the harmful consequences of global warming and other climate changes, are a priority, creates a new direction and attitude to this issue.

International conventions and domestic law impact on environmental protection

The Republic of Bulgaria is a country which is a part to numerous international conventions, as well as multi-lateral and bilateral agreement (mainly with Romania, Greece, and FYROM) in the area of environment, like the following:

Biological Diversity Convention of 1992, signed in Rio de Janeiro, and ratified by the Republic of Bulgaria in 1996. In compliance with the commitments under the convention, Bulgaria has prepared two national strategies for biological diversity protection, and five-year plans for their implementation.

The Convention on International Trade of Endangered Species of Wild Flora and Fauna (CITES, Washington, 1973), ratified in 1991, the Agreement for protection of migrating water birds from Africa and Eurasia, and the CONVENTION for protecting cultural and biological heritage, Paris, 1972, ratified as early as 1975, and other conventions, caused the Bulgarian party to define as natural heritage: National Park Pirin, a beautiful mountain with varied natural landscapes from the Rila-Rhodopi massif, and the Srebarna Reservation, near the Danube delta, which is a habitat and migration site for many diverse bird species.

THE Framework Convention of UN on climate change (Kyoto Protocol), the Vienna Convention for protection of ozone layer (Montreal Protocol on Substances that Deplete the Ozone Layer), the Convention on cross-border air pollution, and other conventions, play an important part and are crucial for the increased activities of Bulgarian legislators (the Bulgarian Parliament) on a national level. For the implementation of international conventions and agreements, which, by force of the Constitution of the Republic of Bulgaria, become part of national legislation, the last ten years have seen the adoption of a number of laws and regulations. For example, in implementation of international agreements on clean air and soil, the Parliament of the Republic of Bulgaria adopted the Clean Air Act, Environmental Protection Act, Prevention of Soil Pollution Act, and others laws, and it signed bilateral inter-institutional agreements with neighboring countries, such as the Agreement between the Ministry of Environment and Water of the Republic of Bulgaria, and the Ministry of Environment and Water Management of the Republic of Romania, for cooperation in the area of water, signed in 2005.

As a result of international commitments in the European Union, Bulgaria is subject to enhanced international control of the implementation of these commitments. The European Commission strictly monitors the compliance with Commission Directives on Integrated Prevention and Control of Pollution. Failure to conform to the provisions of the environmental legislation and international standards, may lead to penalties, imposed on Bulgaria, as a subject of international environmental legislation.

The Republic of Bulgaria is a member of the great European family, and covers and area of 111, 000 sq. km. It is located on the Balkan Peninsula, and has distinctive natural resources. Keeping nature for future generations is an important task both for the government and the citizens, as part of the worldwide effort to ensure an environment without pollution and harmful substances.