Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.39 N° 70
2021
Recibido 14/06/2021 Aceptado el 28/08/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
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Vol. 39, Nº 70 (2021), 617-639
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Prevention of crimes against the
environment: the experience of Ukraine
DOI: https://doi.org/10.46398/cuestpol.3970.37
Viktoria Babanina *
Oleksandr Mykytchyk **
Olena Matiushenko ***
Viktoria Ladniuk ****
Abstract
General social measures for the prevention of crimes against
the environment, which include general processes of economic
development, science, technology, which create the possibility and
increase the eectiveness of special criminological measures and,
in contrast, do not directly aect but indirectly the criminogenic
environment, eliminating or neutralizing the common, most
signicant and common causes of behavior criminal in the eld
of ecology. The article analyzes Ukraine’s experience in the
eld of preventing crimes against the environment. It also analyzes the
measures taken in the country aimed at the prevention of environmental
crimes. A documentary methodology close to content analysis was used.
It is concluded that liability for environmental crimes is an important
component of the legal provision of environmental management, the
restoration of ecological objects and the protection of the environment.
Legislation on criminal liability for violation of the right to use a natural
object was developed within the framework of the general legal rules on
liability for violation of environmental legislation.
Keywords: ecological crime; crimes against the environment; ecological
safety; environmental protection; experience of Ukraine.
* Professor of Criminal Law Department of the National Academy of Internal Aairs, PhD in Law,
Associate Professor, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-4173-488X. Email:
v774910@gmail.com
** Professor of Criminal Law Department of the National Academy of Internal Aairs, PhD in Law,
Associate Professor, Kyiv, Ukraine, ORCID ID: https://orcid.org/0000-0002-4973-2670. Email:
mikitchuk@bigmir.net
*** Acting Head of Department of Criminal Law of National Academy of Internal Aairs, PhD in Public
administration, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-8216-5316. Email: lena_
matushenko@ukr.net
**** Associate Professor of the Department of Administrative, Financial and Banking Law of the
Interregional Academy of Personnel Management, PhD in Law, Kyiv, Ukraine. ORCID ID: https://
orcid.org/0000-0002-7411-8242. Email: viktoria.ladnuk@gmail.com
618
Viktoria Babanina, Oleksandr Mykytchyk, Olena Matiushenko y Viktoria Ladniuk
Prevention of crimes against the environment: the experience of Ukraine
Prevención de delitos contra el medio ambiente: la
experiencia de Ucrania
Resumen
Las medidas sociales generales para la prevención de delitos contra
el medio ambiente, que incluyen procesos generales de desarrollo
económico, ciencia, tecnología, que crean la posibilidad y aumentan la
ecacia de medidas criminológicas especiales y, en contraste, no afectan
directa sino indirectamente el medio ambiente criminogénico, eliminando
o neutralizando las causas comunes, más signicativas y comunes del
comportamiento criminal en el campo de la ecología. El artículo analiza
la experiencia de Ucrania en el campo de la prevención de delitos contra
el medio ambiente. También se analizan las medidas tomadas en el país
encaminadas a la prevención de delitos ambientales. Se hizo uso de una
metodología documental próxima al análisis de contenido. Se concluye
que, la responsabilidad por delitos ambientales es un componente
importante de la disposición legal de la gestión ambiental, la restauración
de objetos ecológicos y la protección del medio ambiente. La legislación
sobre responsabilidad penal por violación del derecho a utilizar un objeto
natural se elaboró en el marco de las normas jurídicas generales sobre
responsabilidad por violación de la legislación ambiental.
Palabras clave: delitos ecológicos; delitos contra el medio ambiente;
seguridad ecológica; protección del medio ambiente;
experiencia de Ucrania.
Introduction
Nature forms the external environment that surrounds human. It is
a set of conditions that form the natural basis, the sphere of existence of
mankind, while being the source of human life, well-being and prosperity.
The interaction of society with nature has always been and remains the most
important condition for human existence. Everything that we produce and
consume is created through the use of natural resources. Therefore, the role
of nature in people’s lives is constantly growing. It is no coincidence that its
protection is a requirement xed at the level of the Constitution of Ukraine.
Despite the measures taken, the severity of environmental safety has
not decreased. Today it is almost impossible to name such phenomena and
environmental processes that have not been aected by human activities.
Since the emergence of mankind, nature provides a favorable environment
for its existence. However, gradually such negative phenomena as the
depletion of natural resources, environmental pollution, disruption of
ecological ties in ecosystems, has been creating ecological crises and other
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catastrophic phenomena. One of the examples of such phenomena is the
Chernobyl catastrophe, as a result of which the living of people in large areas
not only of Ukraine but also of other countries, in particular, in some areas
of the Republic of Belarus and Russian Federation, became impossible.
Along with economic, biological, technical, and other areas of
environmental development, legal issues arise and develop in the
environmental eld, i.e., in the eld of ecology. At the state level,
regulations are adopted that establish requirements on the rational use
of natural resources, environmental protection from pollution and are
aimed at protecting the life and health of the population from dangerous
natural phenomena, i.e., to ensure environmental safety for humans and
the environment. Thus, a system of homogeneous legal norms and legal
institutions is gradually being formed.
Crimes against the environment belong to the category of criminal
encroachments, the social danger of which, as a rule, is not conrmed by
ocial statistics, but is based mainly on such objective indicators that
cannot be ignored or hidden (environmental degradation, ecosystem
destruction, pollution environment), and authoritative expert assessments.
Environmental protection is an important function of our state.
Therefore, in the Special Part of the Criminal Code of Ukraine there is a
special section devoted to environmental protection. This section is entitled
«Crimes against the environment» and establishes liability for the most
dangerous oenses in the eld of environment. Also, some general social
measures are taken in Ukraine to prevent environmental crimes.
1. General social measures to prevent crimes against the
environment
The task of protecting the environment from criminal encroachment
can be achieved in two main ways:
1. criminal-repressive direction – the application of state coercion to
the oender (punishment, correction, and re-education).
2. criminological, i.e., prevention of violation of criminal law on
environmental protection and the creation of appropriate conditions
that would exclude the commission of crimes of an environmental
nature (prevention of environmental crime).
The social value of preventing crimes against the environment includes
not only reducing the scope of criminal law, but also reducing the cost of
environmental crime, i.e., reducing its harmful eects. Given the extremely
high degree of public danger of crimes against the environment, the
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Viktoria Babanina, Oleksandr Mykytchyk, Olena Matiushenko y Viktoria Ladniuk
Prevention of crimes against the environment: the experience of Ukraine
impossibility of eliminating in many cases the consequences of criminal
encroachments on the environment (environmental pollution, destruction
of ora and fauna, disease, death), in our opinion, their prevention should
be the priority.
Starting any theoretical research, it is necessary to rst turn to the
conceptual apparatus, with which you can reveal the phenomena being
studied. Considering the terms used in the scientic literature to dene
this area of social activity, it should be noted that among criminologists
there is no consensus on the use of the terms «ght against crime», «crime
prevention», «impact on crime», «crime control» and other similar
expressions. In our opinion, we should agree with the authors (Martsev
and Maksimov, 1989), who consider the use of the term «ght against
crime» not entirely successful, because it is hardly possible to «overcome»,
i.e., eradicate, destroy crime in general. With regard to the use of the term
«prevention of crime», some scholars note, that it is hardly appropriate to
apply it to a phenomenon that actually exists and is inherent in any society.
In this regard, it is worth noting that the term “crime prevention” does
not seem quite correct: it is impossible to prevent crime (unlike specic
crimes), it can be limited, reduced. It is possible to prevent not the existing
phenomenon - crime, but its specic manifestations in the conditions of
place, time, etc. (Ismailov, 1990).
However, taking into account the positions of other scholars, as well as
the consolidation of the term “crime prevention” in legislation, in particular
Part 1 of Art. 1 of the Criminal Code of Ukraine, we consider it appropriate
to use this term in our study. In the criminological literature, this concept
is considered as an activity aimed at preventing the implementation of
criminal intent of a particular person before the encroachment at the stages
of detection of intent or preparation for crime (Pavlenko, 2005).
Considering preventive activities in the eld of environmental protection,
we can identify the following specic features:
1. Complexity, which nds its expression in two forms:
• a plurality of subjects of prevention, namely environmental,
controlling, judicial and law enforcement agencies, whose
coordinated activities are aimed at protecting the environment.
In the conditions of building the rule of law in Ukraine, its
protection presupposes strict fulllment of obligations by all
subjects of ecological relations and strict observance of their
rights.
• a variety of measures aimed at achieving the goals of crime
prevention against the environment.
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2. The close correlation between the regional and national aspects of this
activity, as attempts to control environmental crime in a particular
region can only be limited and temporary: the environmental crisis
in some areas of the country will inevitably aect the environment of
other regions.
3. Signicant opportunities for successful implementation of measures
of a general social nature to prevent crimes against the environment.
Traditionally, in the criminological literature, preventive activity is
considered as a complex concept that includes:
• national measures of social, ideological, cultural, and
educational order, legislative, legal nature, which combine
methods of persuasion and coercion in the ght against crime.
• activities of state bodies and public organizations related
to identifying the causes and conditions of crimes and the
application of measures to eliminate them, disclosure,
investigation, trial of crimes, punishment of criminals, their
correction and re-education; as well as the implementation of
other measures due to the circumstances of the commission of
specic crimes (Hetman and Kostytsky, 2012).
Some authors believe it is inappropriate to consider social measures as
one of the types of crime prevention since economy, education, culture is
not aimed at overcoming crime, and although overcoming the economic
and spiritual crisis will help control crime, socio-economic and cultural
development go far beyond criminology, and solving these problems cannot
be seen as a kind of targeted crime prevention (Walters, 2010).
These general social measures to prevent crimes, in particular against
the environment, are not aimed directly at eradicating the causes of
environmental oenses (including crimes), nevertheless, they contribute to
solving this problem by creating conditions that reduce or neutralize the
impact of criminogenic factors and thus lay the foundations and form the
possibility of special criminological prevention, determining its content
and the rate of reduction of the number of crimes against the environment.
General social measures to prevent crimes against the environment
include general processes of economic development, science, and
technology, which create the possibility and increase the eectiveness of
special criminological measures, and in contrast not directly but indirectly
aect the criminogenic environment, eliminating or neutralizing general,
the most signicant and common causes of criminal behavior in the eld of
ecology (Avanesov, 1980).
In reality, general social prevention of crimes against the environment
is a complex system, the content of which forms a set of dierent elements,
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Viktoria Babanina, Oleksandr Mykytchyk, Olena Matiushenko y Viktoria Ladniuk
Prevention of crimes against the environment: the experience of Ukraine
consisting of blocks that characterize the relevant areas of preventive
activities in the eld of ecology. In our opinion, depending on the nature
and direction of the measures, the following blocks should be distinguished:
moral and educational measures; informational measures; economic
measures; technical measures; social measures; legal measures.
The group of measures of moral and educational nature are aimed
at improving the environmental awareness of society as a whole and
individual citizens through environmental education, environmental and
legal advocacy, raising the moral and cultural level, as they determine the
lawful behavior of people in various spheres of society.
The importance of environmental education is dicult to overestimate
because environmental moral norms, learned from childhood,
subconsciously determine human behavior, its attitude to nature. They
create an invaluable baggage that allows people to navigate in dicult
situations of choosing a course of action, when moral norms compensate
for ignorance of the law. Environmental and legal norms are more eective
if they are based on moral norms and belong to the system of internal
regulators of behavior (Pogorelova, 1993).
The tasks of environmental and legal education and advocacy include
acquaintance with the norms establishing responsibility for ecological
oenses; clarication of the procedure for exercising legal liability; ensuring
internal and external consent of people with legal means of coercion;
belief in the need to prevent environmental oenses; increasing the social
activity of citizens and their intolerance to these oenses (Konovalova and
Matusovsky, 1994).
Environmental propaganda, which includes the publication of popular
science magazines, exhibitions, posters, environmental festivals and
competitions, excursions, despite the large amount of material used
(including in the media), is not eective enough. This is due not only to the
diculties in obtaining environmental information, but also to the fact that
global development concepts are poorly linked to the values and economic
motivations of a particular person (compliance with environmental
requirements should be not only prestigious but also cost-eective).
Surveys show that often environmental values do not occupy a proper
place in the value orientations of an individual citizen (Vershok, 2003).
Environmental education contributes to raising the level of general
education and culture, forming the necessary social base to ensure
environmentally safe, sustainable development of the country, and
should be considered as one of the priorities of public policy in the eld
of environmental protection and education. It must solve the problem of
training educated young people who are able to make conscious decisions
in areas of life where the problems of the individual, society and the
environment are combined.
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Environmental and legal education is an integral part of general
education and is an independent element in improving public perceptions
of environmental legislation and, in contrast to legal advocacy, provides
for the following features: availability of a special educational program;
permanent composition of students; the presence of a set of pedagogical
tools, control over the knowledge of students.
In the legal literature, professional environmental and legal education,
and non-professional education (Karakash et al., 2001) are considered
separately.
In the structure of non-professional environmental and legal education,
the most important is the environmental and legal education of minors, the
main tasks of which should include the following aspects: understanding
the interdependence of all natural phenomena; belief in the inadmissibility
of impunity for the release into the environment of polluting materials,
both natural and articial; the inevitability of liability for actions harmful
to nature; awareness of the leading role in the economy of the concept of
waste-free production and the complexity of the use of natural resources;
awareness of the need to actively combat encroachments on the environment.
According to scholars, it is the legal education of minors that is a priority
in terms of general crime prevention (Karakash et al., 2001).
The professional component of environmental and legal education is
one of the main factors determining the eectiveness of environmental
activities.
After all, the application by law enforcement ocials who perform their
duties in the eld of environmental protection of legal norms establishing
liability for environmental encroachment requires a thorough knowledge
of national and international environmental law, to which the relevant
provisions of criminal and administrative law refer. These realities place
high demands on the training of environmental lawyers, necessitate the
introduction of new courses and special courses for students specializing
in forestry, agriculture, land, natural resources, recreational law. An urgent
problem is to improve the environmental education of professionals who
are already working and whose activities are related to the impact on the
environment.
According to Article 7 of the Law “On Environmental Protection”
(Verkhovna Rada of Ukraine, 1991), the increase of ecological culture of
society and professional training of specialists are provided by general
compulsory comprehensive education and upbringing in the eld of
environmental protection, including in preschool institutions, in system of
general secondary, vocational, and higher education, advanced training and
retraining. Ecological knowledge is a mandatory qualication requirement
for all ocials whose activities are related to the use of natural resources and
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Viktoria Babanina, Oleksandr Mykytchyk, Olena Matiushenko y Viktoria Ladniuk
Prevention of crimes against the environment: the experience of Ukraine
lead to the impact on the state of the environment. Art. 9 of the mentioned
law enshrines the right of citizens to receive environmental education.
Signicant attention is paid to the improvement and dissemination of
environmental and legal education in the “Main directions of state policy of
Ukraine in the eld of environmental protection, use of natural resources
and environmental safety” (Verkhovna Rada, 1998). This resolution
provides for the expansion of the system of environmental legal institutions,
development of new curricula, improvement of methods of teaching
environmental law and special courses in environmental law disciplines in
modern conditions, creation of the Scientic Center of Environmental Law
and Legislation for comprehensive environmental law research.
There is a link between environmental legislation, on the one hand,
and the actual behavior provided for or prohibited by these regulations,
on the other hand. This factor is environmental legal awareness. In our
opinion, it is the ecological legal awareness of citizens, i.e., the system of
spiritual reection of legal reality in the eld of ecology, which is a relatively
independent element of general social prevention of environmental crime,
ultimately determines its eectiveness.
The level of individual environmental legal awareness depends on the
individual, his or her values, needs and interests. Various structures can
be the means of forming ecological legal consciousness - television, radio,
editorial oces of magazines and newspapers, other mass media, literary
works, lectures, seminars, etc. It should be noted that the process of forming
environmental awareness as a factor that stimulates the activity of citizens
in assisting law enforcement agencies in combating environmental crime,
should be carried out in close cooperation of its elements - environmental
law education and advocacy (Karakash et al., 2001).
When considering the structure of environmental legal awareness, there
are three levels that dier in the nature and depth of reection of reality -
everyday (real), professional (systematized) and theoretical (scientic).
Professional environmental legal awareness, i.e., the idea of
environmental law, which is formed in jurists, employees of environmental
and law enforcement agencies, based on knowledge and practical
experience of environmental legislation, in our opinion, largely determines
the eectiveness of prevention of environmental oenses and crimes.
Particular attention should be paid to the formation of environmental
awareness among law enforcement ocers performing their duties in the
eld of environmental protection. The attitude of some police ocers,
prosecutors and courts to the case of environmental protection as secondary,
common cases of unreasonable refusal to initiate criminal proceedings for
encroachment on the environment or termination of already initiated cases
on the grounds of insignicance of acts objects of nature and undoubtedly,
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signicantly reduces the eectiveness of law enforcement and preventive
activities in the eld of ecology (Kornyakova, 2000).
Information components of environmental crime prevention are an
important factor in optimizing the state’s environmental protection and
improving the ecological culture of society and include measures to collect,
process, evaluate information on the state of the environment, availability,
prevalence, quality of natural resources (monitoring systems, natural
resources), determination of ecological capacity and reproductive capacity
of the environment, forecasting of changes in its condition. In addition,
the information base for the prevention of environmental crime should
create the necessary understanding: on the nature, intensity, prevalence,
and development of determinants of environmental crime; dynamics and
tendency of ecological oenses and crimes, their prevalence in the region,
at the enterprises, in establishments and the organizations; means of
inuencing them, law enforcement practice in the eld of environmental
protection.
An important source of environmental information, including at the
regional level, is the data of monitoring of the environment and individual
natural objects. The monitoring system eliminates many factors that
contribute to criminal pollution, improves the control over the behavior of
ocials and other persons performing duties in enterprises whose activities
are associated with man-made environmental impact. Ukraine has a well-
developed regulatory framework for monitoring, which emphasizes the
importance of this activity for the country.
An important factor in optimizing the state’s environmental protection
and improving the ecological culture of society is environmental information,
which can provide dierent levels of ecological knowledge, dierent depth,
thoroughness depending on individual psychological characteristics, age,
life experience, professional aliation, social and moral position of the
individual. Impartial knowledge leads to the formation and development of
only a distorted ecological consciousness.
Solving the problems of eective environmental protection depends
primarily on improving the economic situation in the country and
appropriate funding for environmental protection. Considering the
economic and nancial component of general social prevention of crimes
against the environment, it should be noted that the legal norms governing
the economic mechanism of environmental protection were introduced by
the Law of Ukraine “On Environmental Protection”, and later were available
in legislation on land, subsoil, forests, water, atmospheric air, fauna.
According to Section 10 of the Law of Ukraine “On Environmental
Protection”, economic measures must provide for: the relationship of
economic activity of enterprises with the rational use of natural resources
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Viktoria Babanina, Oleksandr Mykytchyk, Olena Matiushenko y Viktoria Ladniuk
Prevention of crimes against the environment: the experience of Ukraine
on the basis of economic levers; identication of sources of funding for
environmental protection measures; setting limits on the use of natural
resources; setting standards for fees and payments for the use of natural
resources; providing enterprises with tax, credit and other benets in the
implementation of low-waste, energy and resource-saving technologies;
compensation for damages caused by violations of environmental
legislation.
Economic development is directly related to the state of people’s well-
being, the growth of which will reduce the severity of social problems
(Nekit, 2021).
The introduction of ecological and economic levers of the economic
mechanism of nature management creates incentives for the rational use of
natural resources, as well as additional sources of funding for environmental
activities.
In Ukraine the basic elements of the economic mechanism of nature
management and nature protection activity are developed and legally
established. The most important of them are: the fee for pollution of the
natural environment, the system of fees for the special use of natural
resources, compensation for damages caused by violations of environmental
legislation, etc.
Promising in this regard is the development of environmental
entrepreneurship, the main directions of which in developed countries
are the production of a wide range of equipment for air, gas and water
purication, resource conservation, collection, processing and disposal
of waste, pollution control (Oleksenko et al., 2021). This also includes
the production of natural food, environmentally friendly furniture, car
engines, household chemicals, harmless paints and more. Many companies
are engaged in the development and implementation of environmentally
friendly technologies in all areas of industrial production, treatment
of contaminated soil, reservoirs and groundwater, landscaping and
aorestation, restoration of terrestrial and aquatic ecosystems. Other
commercial entities make good money on the collection, sorting and
processing of production and consumption waste.
The nancial component of the economic mechanism of nature
management and environmental activities is based on the system of budget
planning and provides for the use of appropriate tools for both revenues
and expenditures of the State budget. Analysis of the implementation of
programs and measures approved by the Cabinet of Ministers of Ukraine,
by central executive bodies, regional and local administrations, shows that
due to the unsatisfactory state of funding, the vast majority of them are not
implemented (National Institute for Strategic Studies, 2013).
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To eliminate the shortcomings of the system of nancing environmental
activities, it is advisable, in our opinion, to apply the following measures:
purposeful activity of law enforcement bodies to prevent cases of misuse
of funds from the Environmental Protection Fund of Ukraine; the
establishment of an independent Environmental Fund, the use of which
would be controlled by representatives of various sectors of society - the
executive, business, producers and the public; introduction of material
incentives for greening of production activities of enterprises.
Technical measures to prevent crimes against the environment are
carried out in order to move to more modern technological processes
that ensure waste reduction and their maximum utilization, creation and
operation of high-eciency treatment facilities (Kovaleva, 2015).
Precautionary measures of a social nature are the development and
implementation of regional social programs aimed at solving the most
acute problems of depressed areas, primarily on employment, job creation,
improving the eciency of employment services, organization of proper
control over the implementation of such programs.
2. General legal ways to prevent crimes against the environment
One of the central components of general social prevention of crimes
against the environment is the law, which acts as an eective regulator
of environmental relations in society and ensures the interests of the
individual and social justice in the eld of ecology.
It is known that the very publication of a normative act, the existence of a
criminal law prohibition can regulate the behavior of people and is marked
by a warning, restraining property. The general preventive property of
criminal law is not directly manifested in the restrictions on the rights of
citizens, but is a factor that aects their consciousness, will and emotions,
i.e. it is perceived subjectively and restrains the negative manifestations
of the person. The eectiveness of this inuence largely depends on the
eectiveness of the application of criminal law. Today, the statement that
has been repeatedly expressed in the legal literature that the deterrent
eect of criminal law largely depends not on the severity of punishment,
but on the inevitability of liability based on legal practice (Polischuk, 2002).
Modern criminological science shows a close connection between
the preventive function of criminal law and a similar function of law
enforcement practice (Martsev and Maksimov, 1989). In fact, the boundary
between them is quite conditional and, in our opinion, these phenomena
are interdependent. Both the deterrent eect of criminal legislation on
environmental protection and the practice of its application by criminal
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Prevention of crimes against the environment: the experience of Ukraine
justice bodies are part of the state policy in the eld of combating crime,
including environmental crime.
Considering the conditions for improving the eectiveness of the
preventive eect of criminal law in the eld of environmental protection,
there are two main areas:
1. improvement of legislation in this area.
2. activities to acquaint the public with the rules establishing liability
for environmental oenses.
Considering the rst direction, it should be noted that the improvement
of legislation governing various aspects of combating criminal
encroachment on the environment should, in our opinion, include primarily
the improvement of criminal and environmental legislation, which are the
main means of implementing criminal policy in the eld of environmental
protection. natural environment.
The improvement of criminal legislation in this area is crucial. It is the
criminal law that contains a list of socially dangerous encroachments on the
environment and denes them as crimes, as well as establishes sanctions
that contain a criminal threat that deters many people from committing a
crime. Improvement of criminal legislation in the eld of environmental
protection should be understood as optimization of the Special Part of
criminal legislation, i.e., such changes in its content, which will create the
most favorable conditions for improving the eectiveness of preventive
measures governing criminal law against environmental crime. In addition,
a number of articles of the General Part of the Criminal Code of Ukraine
have a preventive eect. Thus, the rules dening the concept of self-defense
(Article 36 of the Criminal Code), detention of a person who committed a
crime (Article 38 of the Criminal Code), extreme necessity (Article 39 of the
Criminal Code), encourage citizens to actively resist and stop criminal acts.
It is expedient to dwell on the peculiarities of the preventive eect of
criminal law, depending on the type of their disposition. Almost all the
dispositions of the articles in the section “Crimes against the Environment”
are blanket, which causes a relatively small preventive and educational
eect of the articles in this section, as many of the regulations they refer
to are unknown to the majority of the population. Of course, this does not
apply to articles that provide for a special subject of crime, because people
who perform a certain job professionally must be well aware of the relevant
rules and regulations governing this type of activity.
In the current Criminal Code of Ukraine, the legislator did not provide
for administrative prejudice for crimes against the environment, only
naming their consequences, some of which - environmental pollution,
negative impact on human health, signicant damage, other serious
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consequences, are evaluative categories and are set taking into account
specic circumstances of the case, also based on the relevant environmental
regulations. Undoubtedly, it is completely impossible and inexpedient to
abandon blanket dispositions.
It is necessary to make the criminal law in the eld of environmental
protection clearer and more accessible to the general public. In our opinion,
this can be done by improving public perceptions of legislation and codifying
environmental legislation.
Considering the educational and preventive impact of criminal law on
citizens, scholars note that most people nd support in their own legal
consciousness, others receive information that inuences the motivation
of actions, some refuse temptation, and those, who ignore the ban, are
punished by the court. Studies in this area have shown that the dominant
role in the promotion of legal knowledge, including environmental, today
belongs to the media (Dovgan, 2015). It should also be noted that in
periodicals and television programs more attention is paid to the practice
of criminal law, giving them a sensational, detective nature. It is possible
to correct the distorted perception of readers and viewers about the eect
of criminal law by forming a holistic view of criminal law, which is dicult
to do without explaining the relevant criminal law with the comment of a
specialist. Of course, this is possible only on the pages of specialized legal
publications and television programs.
3. Special criminological measures to prevent crimes against
the environment
Special criminological measures to prevent crimes against the
environment are systematic activities aimed at preventing the commission
of individual crimes and crime prevention in general.
According to the Law of Ukraine “On Environmental Protection” (Articles
10, 16), the responsibilities for conducting environmental measures are
assigned to all state bodies and public organizations.
Special criminological prevention is purposefully carried out by state
bodies and public organizations, which, among other functions, are
specially designed to prevent environmental and other related oenses.
The implementation of this activity requires the use of special methods and
tools, as well as special professional knowledge of environmental and legal
nature.
Considering the system of subjects of special criminological prevention
of crimes against the environment, depending on the content of functions,
it is possible, in our opinion, to distinguish four groups of subjects: judicial,
law enforcement, controlling and public.
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Viktoria Babanina, Oleksandr Mykytchyk, Olena Matiushenko y Viktoria Ladniuk
Prevention of crimes against the environment: the experience of Ukraine
The peculiarity of law enforcement activities of judicial bodies in the
eld of ecology, in particular courts of general jurisdiction and commercial
courts, is that, rstly, they contribute to the proper resolution of cases, and
secondly, aect law enforcement activities in general. Moreover, the circle
of persons aected by the practice of courts is much wider than the circle of
those in respect of whom a court decision has been rendered.
The precautionary role of courts of general jurisdiction is primarily to
take administrative or criminal penalties against violators of environmental
laws. Consideration of cases on environmental oenses requires from court
employee’s special knowledge and some experience in the application of
environmental law (Kotelevets, 2002).
Courts assume unjustied concessions to criminals when sentencing is
imposed, as a result of which bringing violators to justice and sentencing
them for violating environmental legislation does not fully fulll its punitive
and preventive function.
In view of this, the proposals expressed in the scientic literature on the
formation of specialized environmental courts are quite relevant. The IX
UN Congress on Crime Prevention, held in Cairo, recommended that the
participants of the forum study the possibility of establishing specialized
environmental courts or panels of courts, forming a list of jurors in cases
related to environmental protection.
Given the special status of the courts, which is the autonomy of the
judiciary and the independence of judges, it would be inappropriate to talk
about the coordination of courts with other subjects of preventive activity.
But interaction with them can take place, in our opinion, in the following
forms: mutual information on the state of crime and convictions for
crimes against the environment; use of information from judicial statistics
and materials of judicial practice in the development of precautionary
measures; analysis of the eectiveness of measures to eliminate the
causes and conditions identied during the trial of criminal cases of this
category; holding joint seminars and conferences on environmental issues;
participation of relevant specialists in the training of law enforcement and
regulatory authorities; preparation and sending to the relevant authorities
of certicates, information letters.
It should be noted that the precondition for the implementation of these
measures at both the national and regional levels is, in our opinion, the
analysis of judicial practice. In the regions of the Ukrainian Black Sea coast,
where crimes related to illegal shing, animal or other water extractive
industries are widespread, the lack of generalizations of case law in this
category is a shortcoming that reduces the eectiveness of preventive
activities in this area.
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In the legal literature, dierent views are expressed on the understanding
of the concept of “law enforcement agencies” (Kotelevets, 2002). Based on
the denition of law enforcement agencies as functioning in society and the
state institutions and organizations, whose main task is to ensure the rule of
law, ght crime and other oenses, in our opinion, law enforcement agencies
in the eld of environmental protection should include prosecutors, in
particular, Specialized Environmental the Prosecutor’s Oce, the National
Police of Ukraine, the Security Service of Ukraine and customs authorities,
border guards. These bodies, as well as courts of general jurisdiction, are
part of the bodies of criminal justice, i.e., state institutions established
to combat crime through the application of criminal laws and special
criminological prevention of crimes.
The National Police of Ukraine plays a signicant role in preventing
crimes against the environment. Analysis of the provisions of the Law of
Ukraine “On the National Police” (Verkhovna Rada, 2015) shows that the
implementation of legal activities by the police on environmental protection
is: detection and termination of oenses, carrying out proceedings in
cases with them; bringing violators of environmental legislation to justice,
and thus ensuring the implementation of nature users of their aairs,
performance of duties, removal of obstacles that may interfere with this;
strengthening the rule of law in this area through prevention of violations
of environmental legislation (identication of causes and conditions that
contribute to the commission of oenses, taking measures within their
competence to eliminate them, participation in the legal education of the
population); delivery, in cases and in the manner prescribed by law, and
detention of persons who have committed oenses in the eld of protection
of natural resources and use of natural resources.
Based on this, it should be noted that the set of measures carried out
by the National Police of Ukraine is quite meaningful and developed,
which has a positive eect on reducing the level of oenses in the eld of
environmental protection.
Given the fact that crimes against the environment pose a direct and real
threat to the national security of the state and society, the security authorities
within their competence are also responsible for detecting, preventing,
and stopping acts that aect the environmental interests of society and
are social and environmental hazard. According to intelligence analysts,
the quality of the environment, the rational use of biological and mineral
natural resources is becoming factors of national security. Deterioration of
the ecological situation begins to progress and becomes a negative factor
in the processes of socio-economic development. There is an indirect
and, in some cases, a direct link between environmental crises and the
development of economic, social, interethnic, and territorial conicts based
on them. In the future, a long-term relationship between environmental
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Prevention of crimes against the environment: the experience of Ukraine
degradation, depletion of natural resources and uncontrolled migration
processes, escalation of large-scale violence, and an increase in the number
of environmental oenses is predicted.
Security forces must be focused on combating biological and technological
terrorism. Biological terrorism is understood as a type of special terrorism
that uses various biological objects - microorganisms, viruses, pathogens
of mass infections, biological products, advances in genetic engineering,
cloning, etc. - in order to cause epidemics, epizootics, dramatically weaken
the body human, to change the psycho-emotional sphere of his personality.
In turn, technological terrorism is understood as the use of nuclear,
chemical, bacteriological weapons or its components, nuclear, radioactive,
highly toxic chemicals, pathogens or capture, decommissioning of nuclear,
chemical and other objects of increased hazards, life support systems of
cities and industrial centers in order to achieve political, selsh and other
goals (Tislenko, 2012).
It should be noted that although these crimes are not normatively related
to environmental, but represent an increased environmental risk. Closely
related to this is the preventive activities of security agencies to identify the
preconditions for emergencies, illicit tracking in potentially dangerous
substances and materials.
Together with the customs control authorities, the security authorities
implement a set of measures to block the channels of penetration into the
domestic market of Ukraine from abroad dangerous to human life and
health household goods, environmentally harmful industries, technologies
and materials, export of strategic raw materials, as well as landlling of
hazardous waste in Ukraine. According to experts, in the eld of illegal waste
movement there are organized criminal structures with the participation of
citizens of the former USSR, Central and Eastern Europe (Balyuk, 1997).
The preventive activity of the border guards is primarily to stop the
poaching of foreign shing vessels.
The preventive activity of the bodies of the State Emergency Service of
Ukraine is to eliminate emergencies in order to ensure public safety and
negative impact on the environment. The state re supervision bodies of the
State Emergency Service of Ukraine supervise industrial facilities in order
to maintain a high level of their re safety. Performing a protective function
to protect forests from res, the state re supervision authorities ensure
re safety of logging facilities and other enterprises and organizations
that perform work or carry out other activities in forests. The situation is
complicated by the spread of the facts of intentional burning of forests for
selsh purposes.
Implementation of environmental control is a statutory activity of state
bodies and specialized formations of public environmental organizations,
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aimed at monitoring and verifying compliance by legal entities and
individuals with the requirements of environmental legislation, as well as
the application of measures to prevent environmental oenses.
Environmental control bodies, which, unlike judicial and law
enforcement agencies, perform environmental protection functions
directly within the natural environment and for which the protection of
the environment (or its individual objects) is the main function, have the
greatest preventive capabilities.
This group of subjects of prevention of crimes against the environment
should include: Ministry of Ecology and Natural Resources of Ukraine, State
Agency of Forest Resources of Ukraine, State Agency of Land Resources of
Ukraine, State Agency of Water Resources of Ukraine, State Sanitary and
Epidemiological Service of Ukraine, State Agency of Fisheries of Ukraine,
Ministry of Agrarian Policy and Food of Ukraine.
Among this group of subjects of prevention of crimes against the
environment, the Ministry of Environment occupies a central place. As a
specially authorized central executive body for environmental protection,
environmental safety and hydrometeorological activities, the Ministry
carries out its preventive activities by monitoring all activities of enterprises,
institutions and organizations, as well as compliance with the protection
and use of natural resources through administrative and legal methods
aimed at ensuring compliance with environmental and legal requirements
in the planning, location of productive forces, construction and operation
of enterprises and other economic facilities.
In particular, the administrative inuence on the subjects of
environmental relations is carried out by: determination of conditions and
granting of permission for special nature use; establishment of ecological
restrictions on production activities (approval for enterprises of standards
of maximum permissible emissions (discharges) of pollutants, etc.);
establishment of nature protection and sanitary protection zones; control
over compliance with environmental and legal requirements; restriction
or cessation of production activities that become a threat to human health
and the environment; application of administrative nes to violators of
environmental legislation.
Unlike the Ministry of Environment, the protective functions of other
regulatory bodies in the eld of environmental protection are limited to
one of the areas - compliance with legislation on protection and use of
forests, land, subsoil, water, fauna, ora, air, nature reserves, sanitation,
and epidemiological well-being of the population, etc.
Preventive activity of the bodies of the State Agency of Forest Resources
of Ukraine is carried out in three main directions:
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Viktoria Babanina, Oleksandr Mykytchyk, Olena Matiushenko y Viktoria Ladniuk
Prevention of crimes against the environment: the experience of Ukraine
1. protection of forests from res.
2. protection of forest strips and forests from illegal logging and
damage.
3. protection of fauna of Ukraine.
Bodies of the State Agency of Land Resources of Ukraine exercise
state control over the use and protection of land. The number of crimes
related to pollution, damage, and misuse of land (Articles 239 and 254 of
the Criminal Code of Ukraine) has a steady upward trend. The dynamics of
bringing the perpetrators to justice for administrative oenses in the eld
of land protection, the objective side of which, except for the consequences
specied in the provisions of Articles 239, 254 of the Criminal Code of
Ukraine, is similar to this criminal law.
Bodies of the State Agency of Water Resources of Ukraine in accordance
with paragraph 12 of Art. 16 of the Water Code of Ukraine exercise control
over compliance with the modes of operation of reservoirs and water
management systems, surface water quality and economic activity on the
lands of the water fund of Ukraine.
State Sanitary and Epidemiological Service of Ukraine in accordance with
Art. 39 of the Law of Ukraine “On Ensuring Sanitary and Epidemiological
Welfare of the Population” supervises the implementation of state policy on
disease prevention, monitoring the implementation of programs related to
the prevention of harmful eects of environmental factors on public health
and supervision of sanitary legislation (Verkhovna Rada of Ukraine, 1994).
The essence of preventive activities of regulatory authorities in the
eld of environmental protection is to inspect controlled objects in order
to identify violations of environmental legislation, draw up acts on the
results of inspections, apply precautionary measures to violators and bring
perpetrators to justice (Hetman, 1999).
An important role in the prevention of crimes and other oenses related
to encroachments on shery resources is played by shery protection bodies
that are part of the State Agency of Fisheries of Ukraine.
Characterizing the current state of sheries in Ukraine, it should be noted
the growing number of poachers, frequent violations of shing rules and
unauthorized shing, the considerable scope of the shadow business and
more. The rapid growth of the number of shing organizations complicates
the control of shing and increases the anthropogenic pressure on the
fauna of reservoirs. One of the directions of nature protection activity of
sh protection bodies is counteraction to concealment from the account of
the actual volumes of the caught sh and sea products by shing and other
commercial enterprises.
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The eective implementation of shery protection measures is hampered
by the unsatisfactory technical condition of the eet and other vehicles of
the state sh inspections, which are not updated due to insucient funding.
As rightly noted in the scientic literature and periodicals, without close
cooperation with law enforcement agencies and NGOs, it is impossible to
conduct large-scale sheries, which are carried out not only on water bodies,
but also on highways and local markets. Poaching of valuable sh species
in the Azov-Black Sea basin, with criminal groups with the assistance of
corrupt ocials of state control structures, should be combated especially
uncompromisingly (Chernik and Gerashchenko, 2005).
Independent public organizations, movements and parties advocating
for the preservation of the environment (for clean air and water, against
the nuclear threat, etc.) are playing an increasingly active role in solving
important problems of Ukraine’s environmental security and preventing
crimes and other oenses against the environment.
An important social factor that draws the attention of the general public
to security issues is the activity of numerous informal social movements
and groups at the local and regional levels.
As a rule, public activities are of a recommendatory nature and are
implemented in the following forms: organizational (submission of
proposals to the relevant state bodies); environmental information (holding
pickets, speeches in the media, environmental propaganda publishing
activities); controlling (inspections of the fund’s environmental objects,
examinations); legislative (introduction of new bills, additions or changes
to existing ones for consideration of the subjects of legislative initiative)
(Tymchuk, 2016).
According to experts from the National Institute for Strategic Studies,
Ukraine still lacks an eective mechanism for cooperation between NGOs,
movements, parties and the government in addressing environmental
security issues, which signicantly reduces the eectiveness of civic
initiatives. In addition, as the analysis of their program documents showed,
the degree of processing and quality of program applications leave much to
be desired. They do not depend on the political orientation of the parties.
The measures proposed there are well developed, brought to the list of
laws that need to be adopted and the development of which the parties
(movements) are going to do. However, most often the constructive part
of the program looks like a list of individual theses of a fairly general
nature. Virtually none of them answer the question: how to solve complex
environmental problems.
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Viktoria Babanina, Oleksandr Mykytchyk, Olena Matiushenko y Viktoria Ladniuk
Prevention of crimes against the environment: the experience of Ukraine
Conclusions
Liability for environmental crimes is an important component of the
legal provision of environmental management, restoration of ecological
objects and environmental protection. Legislation on criminal liability
for violation of the right to use a natural object was developed within the
framework of general legal norms on liability for violation of environmental
legislation.
Specic features of crimes against the environment allow to consider
them as an independent group of crimes, which was realized with the
adoption of the current Criminal Code of Ukraine. This, as well as the
position of the public concerned about the state of the environment, the
number of regulations and bodies that must apply them, are optimistic.
In fact, there is rather sad situation due to the presence of large-scale
environmental crime in Ukraine. The eectiveness of the ght against it lies
not only in the perfection, balance of criminal law, but also in the activities
of environmental authorities.
The impact on criminogenic factors that determine the existence
of environmental crime should be systemic, and the activities of all
bodies involved should be coordinated. Only under such conditions can
the processes that give rise to crimes and other oenses in the eld of
environmental protection become controlled and managed. Understanding
this, we propose to create and implement a system of environmental justice,
which would provide for comprehensive cooperation of governmental and
non-governmental institutions and organizations to identify the factors
that give rise to crimes against the environment, their eective prevention
and adequate response.
It is obvious that the creation of a system of environmental justice in the
country is a complex and long process that requires addressing a number of
issues of legislative, organizational, personnel and nancial support.
The need for active public participation in environmental prevention
activities is obvious. The solution of many problems related to environmental
protection is impossible without the appropriate attitude to these issues of
public opinion and a radical active position of the broadest sections of the
population. The concept of “public participation” is one of the clear signs of
democratization of society. Public participation in environmental activities
is of particular importance and is a necessary condition for ensuring the
eectiveness of environmental policy.
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