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of December 10, 2004 No. 17

About court practice in cases on crimes and other offenses against the environment

According to the Constitution of Ukraine everyone has the right to the environment, safe for life and health, and to compensation of damage caused by violation of this right (the Art. 50) and not cause damage to the nature and pay the loss caused by it (the Art. 66).

Crimes and other offenses against the environment encroach on the public relations in the field of protection of constitutional right of citizens on the safe environment, and also in the field of protection, use, saving and reconstruction of natural resources, providing ecological safety, prevention and elimination of negative impact of economic and other activity of the person on the surrounding environment, preserving genetic fund of wildlife, landscapes and other natural complexes, the unique territories, and also the natural objects connected with historical and cultural heritage.

Having discussed materials of generalization of court practice, the Plenum of the Supreme Court of Ukraine notes that courts in general provide the correct permission of cases on violation of the law about environmental protection (the surrounding environment). At the same time in case of judicial review of these cases violations of both the material, and procedural law are still allowed.

For the purpose of ensuring the correct and identical application by courts of the legislation for the specified category Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts that timely and correct consideration of criminal cases about crimes, responsibility for which is provided by articles 236-254 of the Criminal code of Ukraine (далееУК), is important remedy of the right of citizens to the safe environment guaranteed by the Constitution, and also the public relations in the field of protection and reconstruction of the surrounding environment, rational use of natural resources, providing ecological safety of life activity of the person.

2. As the majority of Articles which provide responsibility for crimes and administrative offenses against the environment are blanket, courts should find out carefully what legislation regulates the legal relationship connected with use and protection of the appropriate natural resource (the earth, subsoil, waters, atmospheric air, plant and animal life and so forth).

3. Persons which reached 16-year age can be subjects of crimes against the environment. In cases of criminal prosecution for these crimes of the officials who made them with use of the official position, their action in the presence to that the bases shall be qualified also under the relevant articles of the Criminal Code which provide responsibility for crimes in the field of office activities, except the Art. 238, by the p. 2 of Art. 248 of UK.

Finding out circumstances of committed illegal act, it is necessary to check especially carefully whether there is causal relationship between it and the fact of damnification to the surrounding environment, whether harmful effects are caused by factors which did not depend on will of the defendant (natural disaster, the fire and so forth). Responsibility for crimes against the environment comes also in that case when the corresponding actions were made in connection with productive or other activity.

5. Resolving issue of whether the damage is essential (p.1 the Art. 244, of the Art. 246, p.1 of the Art. 248, p.1 of Art. 249 of UK), courts shall consider not only quantitative and cost criteria, and and other circumstances important for permission of this question.

Under serious consequences (Articles 236, of 237, parts 2 of Articles 238-243, of the p. 2 of the Art. 245, of Article 247, of 251, of the p. 2 of the Art. 252, p.1 Art. 253 of UK should be understood: death or mass disease of people; essential deterioration in ecological situation in this or that region (area); disappearance, mass death or serious illness of objects of animal and flora; impossibility to reproduce for a long time these or those natural objects or to use natural resources in certain region; genetic transformation of these or those natural objects; causing material damage in especially large sizes; and so forth.

Finding out question of whether death or disease of objects of fauna is mass, courts, in particular, shall research data on the number of animals, fishes, other organisms which died or ached, their prevalence in the territory of Ukraine or specific administrative and territorial unit.

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