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Types of Offense and Degress of Responsibility for the Violations of the Laws on use and Protection of Water Resources
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3. TYPES OF OFFENSE AND DEGREES OF RESPONSIBILITY FOR THE VIOLATIONS OF THE LAWS ON USE AND PROTECTION OF WATER RESOURCES
Types of offense and degrees of responsibility are laid down in the Water Code of the Republic of Belarus.
Following are the reasons for committing environmental offence:
1. incomplete and imperfect laws;
2. ineffective economic basis for the observance of legal and environmental rules;
3. drawbacks in organization and implementation: to many ministries perform different environmental functions, the law does not provide for coordination of their actions;
4. insufficient level of environmental education.
Violation of water legislation can be of two types:
1. Violation of the property rights for water bodies:
- unauthorized appropriation of a water body
- unauthorized water use
- assignment of the right for water use
- other transactions violating the property right of the Republic of Belarus.
According to the Water Code all of the above actions are deemed illegal; water bodies, appropriated without the authorization, are returned to their legal owner without any recovery of expenses to the appropriator.
2. Violations of the rules of water use and protection:
- implementation of the projects subject to state environmental expert examination without a positive decision of commission of experts;
- pollution and/or littering of water bodies, violation of the rule of maintenance of water protection zones and riverside;
- unauthorized implementation of hydrotechnical projects;
- water collection exceeding the established limits, etc.
There are two types of actions: legal and economic. Economic actions are taken in case of lawful activities of a polluter to provide chiefly financial incentives for waste reduction. Legal actions are taken in case of illegal activities of a pollutant to bring the polluter to administrative and legal responsibility. Economic responsibility is based on the financial interest of a polluter to reduce or completely remove harmful impacts on the environment . At present, legislation provides for the following types of economic responsibility: compulsory payments of the enterprises for standard and excessive emissions, pollutant discharges into water bodies, and industrial water use.
Legal proceedings for the violations of environmental legislation can be of the following types:
- administrative;
- criminal;
- civil;
- disciplinary.
The administrative proceedings consist in actions taken by specially authorized bodies or officials to impose administrative penalties on the violators of water and environmental legislation according to the established order. The administrative responsibility is provided for by the following environmental laws: the Codes of the Republic of Belarus on land, natural deposits, forest and water, the law “On environmental protection”, etc. Its types are specified in the “Code of administrative violations”.
Criminal proceedings are instituted against the offenders guilty of significant damage to the natural environment. The types of crimes are specified in the Criminal Code of the Republic of Belarus as crimes infringing the rules of water use and protection. Belarusian legislation also provides for responsibility for other violations of the water legislation of the Republic of Belarus.
In addition to the legal responsibility, the violators of laws on water use and protection may bare economic responsibility. Thus, the law “On tax on use of natural resources (environmental tax)” provides for such penalty as the increase of the rates for the discharges of untreated wastewater in excess of the established limits.
A significant gap in the water legislation is lack of a complete list of possible violations in the following fields: use of water, protection of water bodies, use of natural resources, economic activity, management of water bodies, environmental safety, economic tools regulating the use and protection of water bodies.
Following improvements must be made to the Criminal Code of the Republic of Belarus;
- to expand and more clearly outline the scope of possible subjects of criminal actions and specify their list: environment in general and its elements (water, atmosphere, animals, plants, forests, etc.)
- to bring into accord criminal and specialized environmental laws, including competent use of specialized terms, expansion of the scope of subjects of the criminal and legal protection;
- In most of the cases, responsibility for environmental crimes is described in blanket rules: lawmakers widely use the term violation of the rules. As a result, the problem of unlawfulness of the environmental crimes is settled neither in theory, nor in practice; moreover, it has become even more acute. In terms of legal practice, the new Criminal Code gives a very complex descriptions of corpora delicti, which makes their interpreting and application very difficult;
- According to the Belarusian legislation administrative violation is a legal fact entailing possible criminal actions against the violator and determining their type. Abolition of the administrative prejudice will help eliminate the need of distinguishing between criminal and administrative offenses.
Generally, Belarusian legislation specifies practically all types and degrees of responsibility for offenses committed in the field of use and protection of water resources, nevertheless it needs several amendments.
The Water Code provides for the administrative, criminal and other actions against those guilty of unauthorized appropriation of water bodies, unauthorized use of water and other illegal transactions violating the property rights of the Republic of Belarus for water as well as for other offenses in the field of use and protection of water resources. The administrative actions, specified in the Code of Administrative Offenses, are taken in case of offenses involving the infringement of the state property right in water and offenses involving the violation of the established order of use and protection of water resources.
According to Article 39 of the Code of Administrative Offenses, pollution and littering of water bodies, violation of the rules of maintenance of water protection zones of rivers, ponds and watercourses, and violation of the water protection rules at water collection areas which entails their pollution, water erosion of the soil and other harmful impacts, are penalized with the fines in the amount ranging from one to 10 minimum wages for individuals and from 3 to 25 minimum wages for administrators. Putting into operation of industrial, municipal or other plants without the installment of facilities or equipment preventing water pollution or littering or harmful impacts on the environment is penalized with the fine of 5 to 50 minimum wages imposed on plant administrators, whereas their putting into operation without the facilities or devices measuring, recording and ensuring rational use of water resources entails fines of 5 to 25 minimum wages imposed on the administrators.
Similar measures are specified for the violations of the rules of water use (collection of water in excess of the established limits, unauthorized implementation of hydrotechnical projects, uneconomic use of water resources, violation of the order of statistical reporting, measuring and keeping initial records of the amounts collected from and discharged into water bodies, damage to water management facilities and equipment as well as facilities and equipment preventing water pollution and littering ( 3 to 10 and 5 to 25 minimum wages). It is significant that the measures provided in the legislation are incommensurable with the losses incurred by the state as a result of breach of rules of water use, pollution or littering of water bodies or damaging water management facilities. Moreover, the administrators on whom the fines are imposed do not take any material losses as they usually pay the fines at the cost of their enterprises, firms, etc. That is why it is advisable to increase significantly the amounts of fines imposed on legal entities.
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