1. What are the strategies for defending innocence in environmental pollution crimes?
The innocence defense strategies for environmental pollution crimes mainly include:
Effective defense strategies for environmental pollution crimes ⅰ. The dispute between active remedy and subsequent damage
According to " Article 5 of the Interpretation, the crimes of environmental pollution, illegal disposal of imported solid waste, and unauthorized import of solid waste have just reached the standards for criminal liability. However, if the perpetrator takes timely measures to prevent the expansion of losses, eliminate pollution, compensate for losses in full, and actively restore the ecological environment, and it is the first offense, the case may be deemed to be minor and the case may not be prosecuted or criminal punishment shall be waived; if a criminal penalty is indeed necessary, the perpetrator shall Leniency of punishment.
The above provisions are considered to be one of the applicable situations of the policy of balancing leniency with severity for environmental pollution crimes, that is, after accepting the entrustment, the criminal suspect's behavior complies with the provisions of the "Interpretation" and there is evidence to prove that he constitutes the above three crimes. .
In this case, if the pre-trial defense is prepared in a timely manner, the perpetrator is informed to take timely measures to prevent the expansion of losses, eliminate pollution, compensate for the losses in full, and actively repair the ecological environment, it can be deemed as minor. If the case is in the review and prosecution stage, the public prosecutor may not prosecute; if the case is in the trial stage, the court may make a judgment exempting criminal punishment. Even if criminal punishment is indeed required, the above measures can be used as sentencing circumstances to provide leniency.
At the same time, the above-mentioned measures taken by criminal suspects are also making up for their own mistakes, which is conducive to protecting the natural environment on which we live to a certain extent and giving full play to the deterrent and educational functions of criminal law.
Effective defense strategies for environmental pollution crimes 2. Debate over whether it constitutes serious environmental pollution (one of the eighteen types)
According to Article 338 of the Criminal Law, the crime of environmental pollution refers to the discharge, dumping, and disposal of radioactive materials in violation of national regulations. Waste, waste containing infectious disease pathogens, toxic substances or other harmful substances. Generally speaking, illegality is difficult to constitute an effective defense, so the defense strategy should mainly focus on whether there is any discharge, dumping or disposal behavior and whether the object of the behavior is radioactive waste, waste containing infectious disease pathogens, toxic substances or other harmful substances .
Whether to implement behaviors that pollute the environment is one of the key strategies for effective defense. Generally speaking, behaviors carried out in a polluted environment are related to production and business activities, because they involve all aspects of social production and life and involve a wide range of knowledge, which places high demands on judicial personnel. If they are not familiar with the relevant fields, it is very likely that the direction of the investigation will be wrong, and the evidence system constructed will also collapse due to professional errors. In this link, the defense must have an in-depth understanding of the relevant background knowledge of the case, re-examine the implementation behavior identified by the prosecutor, and the causal relationship with the pollutant monitoring data and pollution consequences.
If there is no causal relationship in criminal law, it does not constitute a crime. "Severe pollution of the environment" raises the issue of how to determine whether there is a causal relationship between the act of polluting the environment and the damage results in criminal law. Since some environmental pollution crimes often affect victims or their property through environmental media, environmental pollution behaviors are mostly indirect behaviors; there may be many reasons for casualties or property losses, which may be the result of multiple pollution behaviors, and there are many causes of pollution. ; In the causal chain of pollution behaviors and damage results, some pollution behaviors play a direct role, some play an indirect role, and the causal chain is complex.
This prompts the defense lawyer to study the causal relationship between the behavior and the result. 18 Severe environmental pollution cases mostly involve popular science knowledge such as physics and chemistry. Criminal lawyers with science and engineering backgrounds should defend suspects who pollute the environment, and their work should be more comfortable and natural. So this requires us to truly understand the relevant knowledge background and put forward a defense point that goes straight to the point, rather than scratching the itch.
Effective defense strategies for environmental pollution crimes 3. Debate on Serious Harmful Consequences
Judging from the basic manifestations of the crime of environmental pollution, harmful consequences are one of the constituent elements. Therefore, the basic crime of environmental pollution crime is result crime, not behavioral crime or dangerous crime.
Although the Interpretation defines a conviction standard of 18 for serious environmental pollution crimes, in order to lower the threshold for conviction, the conviction standard in some cases has been expanded to behavioral offenders.
However, from the perspective of the legislation itself, the consequences of behavior are still the primary consideration in conviction and sentencing. This part of the defense strategy should focus on whether the evaluation of the harmful consequences is correct and the causal relationship between the consequences and the behavior. It is worth mentioning that Article 3, Item 14 of the Interpretation, as an aggravated clause, is based on "other circumstances causing particularly serious consequences". The understanding of this basic clause is easily expanded in practice.
A search on the Judgment Documents Network shows that over the past three years, courts across the country have used this clause to increase the defendant’s sentence. The facts are directly identified as "other circumstances causing particularly serious consequences."
The amount of discharge far exceeds the standard for incrimination and still falls within the scope of criminal circumstances. It cannot be directly inferred whether the "consequences" are serious. In the case of crimes with "aggravated consequences" clearly stipulated in the criminal law, even if the emissions are large, it is only the "circumstances" that are particularly serious rather than the "consequences" that are particularly serious.
In addition, the same interpretation rules should be followed when interpreting the underlying clauses, that is, "When the meaning of a word used in criminal law is unclear, the terms attached to the attributive should be determined based on the same or equivalent degree of the matters involved in the attributive. The meaning of general terms. "From the perspective of the principle of legality of crime and prohibition of analogies that is not conducive to the defendant, in the absence of clear provisions in law and judicial interpretation, it is not appropriate to arbitrarily break through and identify it as "other situations with particularly serious consequences" and aggravate them. The defendant did not deserve the punishment.
In addition, some courts will apply this clause as a consequence of environmental pollution damage based on the environmental pollution damage appraisal report. According to "The actor has directly caused damage to regional ecological environment functions and natural resources, and the repair costs of artificial intervention measures taken to reduce the risk of pollution to an acceptable level will far exceed the cost of directly treating the pollutants." It stipulates that the environmental pollution in this case should be determined to have "particularly serious consequences."
In addition, since the conclusion reached in the evaluation report is not an appraisal conclusion in the sense of criminal proceedings, it can only be used as an appraisal opinion on the validity of the evidence. It is necessary to strictly examine the subject, procedure and basis, as well as whether the conclusion is objective and scientific. If necessary, the defense can also provide expert opinions on the same issue for the court's reference.
Effective defense strategies against environmental pollution crimes. Controversy over the determination of pollutant standards
As for the defense strategies of the litigation targets, by studying the 18 cases of the first criminal standard in the "Interpretation", it will be found that the specified pollutants are different: including radioactive waste , waste and toxic substances containing infectious disease pathogens; hazardous waste; pollutants containing heavy metals, persistent organic pollutants, etc. that seriously endanger the environment and human health. Therefore, as a defensive strategy, we should check whether the criminalized pollutants meet the scope of the corresponding standards.
First, can ordinary pollutants constitute a crime?
There are many types of toxic and harmful substances that pollute the environment, and the degree of toxicity of different pollutants to the environment varies greatly. Except for "other serious environmental pollution cases" specified in item 18 of this article, administrative penalties can only be imposed in accordance with the law. For example, the pollutants in the case did not contain heavy metals and persistent organic pollutants, but there were relevant national emission standards. Can this provision be applied, and exceeding the emission limit by more than three times can be used as a basis for conviction? Comparing the "Comprehensive Wastewater Discharge Standard" (GB 8978-1996), we can find many examples, such as chemical oxygen demand, ammonia nitrogen, fecal coliform, etc., which all have corresponding discharge standards and can be considered pollutants in a general sense. However, if the content of these pollutants exceeds the standard by more than three times, convicting the defendant for environmental pollution crimes is obviously against the current legal provisions.
Second, the identification of “other” toxic and harmful substances.
Article 15 of the "Interpretation" stipulates that "the following substances shall be recognized as "toxic substances" stipulated in Article 338 of the Criminal Law:
(1) Hazardous waste refers to Wastes with hazardous characteristics that are included in the national list of hazardous wastes or identified in accordance with national hazardous waste identification standards and methods;
(2) Substances listed in the annex to the Stockholm Convention on Persistent Organic Pollutants ;
(3) Pollutants containing heavy metals;
(4) Other toxic substances that may pollute the environment. "Other toxic substances that may pollute the environment" are also derived from the bottom up. With the addition of "other harmful substances" to the criminal law, it is not clear which institutions and standards should be used to identify these two substances, which can easily cause disagreements in judicial practice and is destined to become the focus of disputes between the prosecution and the defense.
Effective Defense Strategies for Environmental Pollution Crimes 5. The Struggle for Proof of Administrative Environmental Monitoring Data
Environmental pollution crimes are typical administrative and criminal crossover cases in order to strengthen the relationship between administrative law enforcement and criminal justice for environmental protection. Effectively connect and unify the understanding of relevant departments. According to the relevant provisions of the Criminal Procedure Law, Article 12 of the "Interpretation" clarifies that the monitoring data collected by the environmental protection authorities and their subordinate monitoring agencies during the administrative law enforcement process can be used as evidence in criminal proceedings. . The data obtained by the public security organs, either alone or in conjunction with the environmental protection department, to extract pollutant samples for testing can also be used as evidence in criminal proceedings.
However, defense lawyers can consider these monitoring and testing data from four aspects. Conduct review: first, review of the qualifications of the collection subject; second, review of the collection point; third, review of the collection procedures (selection and cleaning of sampling containers, cross-contamination of sampling equipment, requirements for instantaneous sampling and unstable sampling, sampling liquid level selection, overflow of collected sewage, addition of preservatives, and pasting of water sample notes to ensure the identity of the samples); fourth, the legality review of the monitoring procedures (review of procedures for accepting counterfeit products, review of qualifications of monitoring personnel, monitoring methods Basis review, monitoring process review, monitoring report signatory review) This is a review method worth learning and promoting, which lays a good foundation for substantive defense work.
Contaminant monitoring data. , we must focus on whether the sampling and inspection procedures are legal, whether the sampling points are representative, whether the samples are mixed, and whether the inspection results meet the standards for conviction. At present, the country has successively promulgated a series of environmental protection standards, such as water environment protection standards and atmospheric environment protection. Standards, soil environmental protection standards, etc., and there are sub-standards between major categories, which are not incomplete. For example, the Ministry of Environmental Protection promulgated the "Airbag Law for Sampling Volatile Organic Compounds in Exhaust Gas from Stationary Pollution Sources" and "Recycled Copper, Aluminum, and Lead". , Zinc Industry Pollutant Emission Standards" and other relevant documents have detailed regulations on pollutant collection tools, collection points, collection procedures, enterprise boundaries, emission standards, etc. Defense work must be carried out in conjunction with these regulations.
Effective defense strategies for environmental pollution crimes
Article 14 of the "Interpretation" stipulates that "if it is difficult to determine the specific environmental pollution issues involved in the case, the evidence issued by the judicial appraisal agency shall be used." Appraisal opinions, or reports issued by institutions designated by the environmental protection department of the State Council and the public security department, shall be used in conjunction with other evidence for appraisal.”
In this regard, if the environmental protection department or public security agency reaches a determination opinion based on the national list of hazardous wastes or organizes expert research and judgment, it must state the name of the unit involved, the cause of the case, and the reasons for the identification and identification of the items involved, and issue a "Determination of Inadequacy" Belong to hazardous waste, waste code" format conclusion, stamped with the official seal.
Article 13 of the "Interpretation" stipulates: "Waste included in the "National List of Hazardous Wastes" can be classified based on the source of the material involved, the production process, the defendant's confession, the witness testimony, and the approved or registered environmental impact The assessment documents shall be determined based on the written opinions issued by the environmental protection authorities and public security organs. The amount of hazardous waste may be determined based on the defendant's confession, the production process, material consumption, energy consumption and approved or filed environmental impact assessment documents of the enterprise involved. Determined.
In judicial practice, other toxic substances and other harmful substances are identified through instructions issued by the environmental protection department.
Article 13 of this article only clarifies the subject and requirements for the issuance of monitoring data, while the first paragraph should be applied as a special issue, that is, the judicial appraisal institution shall issue an appraisal opinion, or the institution designated by the environmental protection department of the State Council shall issue an inspection report, instead of Simply rely on written materials provided by environmental protection departments and monitoring agencies.
Effective defense strategies against environmental pollution crimes. Arguments about inconsistent crimes in non-unit crimes
In many cases, environmental pollution crime cases belong to unit crimes, and those responsible for unit crimes involving other crimes are often lighter than individual crimes. However, Article 11 of the Interpretation stipulates that when an entity commits environmental pollution-related crimes, the same conviction and sentencing standards as for individual crimes shall apply. The framers of the judicial interpretation believe that environmental pollution-related crimes committed by units often have greater social harm and should be severely punished.
In addition to unit crimes, in practice there are also some cases that do not constitute unit crimes. However, people at different levels in the enterprise are accused of environmental pollution crimes, so it is particularly necessary to grasp the * * * elements of the crime.
According to the provisions of the Criminal Law: "* * *An accomplice is an intentional crime committed by two or more people." First, there is no intention of contact. Second, before there is nothing, there is no conspiracy. Third, there is a subjective mentality of hope or laissez-faire. Fourth, there is no cooperation to implement the behavior. If the superior or subordinate does not commit the above * * * crime of endangering the environment of others, he cannot be held criminally responsible simply because of internal division of labor.
Effective defense strategies against environmental pollution crimes. The dispute over whether the administrative investigation is a surrender.
2065438+2007 65438+On October 25, the Ministry of Environmental Protection, the Ministry of Public Security, and the Supreme People's Procuratorate issued the "Measures for the Coordination of Environmental Protection Administrative Law Enforcement and Criminal Justice" (hereinafter referred to as the "Measures"), which mentioned The collaboration mechanism between the environmental protection department, the public security agency, and the People's Procuratorate, combined with the characteristics of cases transferred by administrative law enforcement in practice, is based on the provisions of relevant judicial interpretation documents, such as the "Opinions on Several Specific Issues in Handling Surrenders and Meritorious Service" issued by the Supreme People's Court in 2010 》 (hereinafter referred to as the 2010 Opinions), there are three main situations in which administrative law enforcement cases are automatically surrendered:
1. Surrender to the public security, procuratorate, court and other judicial organs, or the criminal facts and criminal suspects are not discovered Anyone who surrenders to the relevant administrative law enforcement department before the crime facts and criminal suspects are discovered may be deemed to have surrendered.
2. The criminal facts and criminal suspects have been discovered, but before the criminal suspect is investigated and interviewed by the case-handling agency or investigative measures are announced, surrender to the public security, procuratorial organs, courts and other judicial organs, or to If the relevant administrative law enforcement department surrenders, it can also be regarded as surrender.
3. If the criminal facts and suspects have been discovered during the inspection, and the case has been opened for investigation by the administrative law enforcement department, and then surrendered to the public security and other judicial organs, it cannot be regarded as automatic surrender.
If a truthful confession is made during a routine investigation by an administrative agency, thus saving judicial resources, it should be considered a surrender.
At present, the country attaches great importance to the environment, and at the same time requires citizens in the form of belief not to destroy it casually. Otherwise, criminal penalties will be used to regulate illegal citizens and compensate them or even detain them. However, some citizens accused of polluting acts do not actually commit crimes and need to use various defense techniques to minimize penalties.