The Environmental Crimes Act of 1998

The Environmental Crimes Act, No. 9,605, approved by National Congress on February 13th 1998, represents a major advance for the Brazilian Nation and its environment. It establishes and defines new forms of crime in the context of technological advances and the globalization of the world economy. It incorporates the guiding principles of modern penitentiary policy and penal theory in its emphasis on preferring penalties that restrict rights rather than imprisonment. It also restructures the previous legislation dealing with environmental crimes, a substantial part of which was inadequate, poorly defined or out of date. Among the main distortions were the lack of definition of exactly which activities were harmful to the environment and those having major impacts on the quality of life, the lack of legal norms and excessive severity towards crimes with only minor legal or social consequences. This meant that the majority of cases taken to court were improperly dealt with, and consequently no resolution for the environmental damage caused.

The new law seeks to streamline sentences, making their duration more just and more compatible with the offence, as well as defining more clearly the circumstances that should increase or mitigate the penalty. Another aspect is the criminal responsibility of companies, which have to answer for infringements of the environmental law however they may have been committed, whether by decision of their legal or contracted representative, of their board in the interest of the company, or of anyone who by any means contributed to the crime, in proportion to their degree of responsibility. Similar legislation already exists in a number of countries, including the United States, Canada, France, New Zealand. The law also punishes any director, administrator, member of a technical council or board, auditor, manager, agent or representative of a company who knew of the criminal conduct but did nothing to prevent it.

The so-called restricting rights penalties (penas restritivas de direito), or simply alternative penalties, to replace prison sentences, places an excellent instrument at the Judge's disposal, allowing him to select the most appropriate option for the case, from the point of view of dealing both with the culprit and the environmental damage caused. Examples of options include: community service, making the guilty party do unpaid work in parks, public gardens or protected areas; temporary loss of rights, banning the culprit from entering any contractual relations with the state, receiving tax incentives or any other benefits and taking part in bidding processes for a period of five years; partial or total suspension of activities, in cases where there is negligence or disregard for legal rules and restrictions; financial service, which consists in the monetary payment of a sum fixed by the Judge to the victim or to the public or private institution involved; and, finally, house arrest, based on the culprit's self-discipline and sense of responsibility, allowing him to work, attend a course or take part in any authorized activity without custodial supervision, but requiring him to spend his free time in his home or other place where he habitually lives, as determined by the Judge.

The new law also provides for the compulsory liquidation of any company set up or used for the purpose of facilitating or hiding any environmental crime, and the transfer of its assets to the National Penitentiary Fund; it introduces the cancellation of punishment in exchange for reparation of the damage to the environment, highlighting the concept of environment versus the loss of liberty; emphasizing the concept of prevention, by introducing the crime of danger, which is expressed as the need to prevent dangerous conduct or activities; the criminalisation of any act that aims to kill, chase, hunt, catch or use native or migratory wildlife, without a license from the appropriate environmental authority; criminalisation of ill-treatment of domestic and non-native animals; and finally it decriminalizes hunting for reasons of hunger, in a state of necessity, in view of social and cultural imbalances, including the age-old tradition of subsistence hunting.

It severely punishes practices harmful to Brazilian wildlife, such as destroying or damaging native or non-native forest or forest for permanent preservation; causing direct or indirect damage to protected areas; causing fires; letting loose fire balloons that might set fire to the forest or other vegetation; extractivist activities in forests set aside for permanent preservation; interfering with natural regeneration; receiving or acquiring timber and other plant products without a license; making hardwood into charcoal and using power-saws without authorization.

Pollution, toxic substances, the disposal of solid, liquid and gaseous wastes, residues, and oil or oily substances are also carefully dealt with in the Law of Environmental Crimes. Anyone who causes pollution of any kind to a point where it may result in harm to human health, or who causes the death of animals or the destruction of flora, can be punished with one to six years' imprisonment. The law also criminalizes conduct considered reprehensible, such as defacing public property with graffiti, and carrying out large-scale construction work without an environmental impact study.

This legislation has also given the agencies that administer environmental policy a powerful instrument to contain the depredation of nature, with a number of possibilities for applying administrative reprimands: warnings, simple fines, daily fines; the confiscation of animals, products and by-products of plants and animals, tools, equipment or vehicles of any kind used in the unlawful activity; destruction of the product, or rendering it useless; suspension of the sale and manufacture of the product; embargo on the work or activity; demolition of the construction; partial or total suspension of activities; suspension or cancellation of registration, license or authorization; loss or reduction of tax incentives and benefits; loss or suspension of participation in lines of credit from official bodies; and banning from contracts with the Public Administration for a period of three years.

The new law highlights international co-operation for the preservation of the environment by stating that, except in cases affecting national sovereignty, public order or good customs, the Brazilian Government will offer all necessary co-operation to any other country, without onus, when asked, for the production of evidence, examination of objects and places, temporary presence of any prisoner whose evidence may be relevant to the decision of a case, and other forms of assistance permitted by the legislation in force or by the treaties to which Brazil is a party.