Environmental Criminal Enforcement in Poland and Russia: Meeting Current Challenges

Environmental criminal law provides for measures targeting the most serious environmental offences and improving the enforceability of environmental provisions. In the article, environmental criminal law provisions in Poland and Russia are analyzed and compared. The changes introduced by the Council Directive 2008/99/EC on the protection of the environment through criminal law have a significant impact on the Member States’ criminal law, promoting broader criminalization of environmentally harmful behavior and more severe sanctions. Although the Russian Federation is not an EU member and adopts its environmental legislation, it is still a party to several international treaties and therefore is obligated to provide an adequate level of environmental protection. There are several similarities between the criminal provisions in both countries concerning the classification of environmental crimes and the limbs of their legal definitions. Besides, both countries use a continental model of criminal procedure including their rules on evidence. It allowed us to compare national law enforcement practices. The authors analyze current law enforcement challenges and discuss possible solutions.


Introduction
The consequences of environmental offences can easily cross the national borders requesting a mutual response. In the EU, the Member States' criminal law is expected to comply with the provisions of the Council Directive 2008/99 on the protection of the environment through criminal law. 1 The Directive promotes a common approach to the serious infringements of the Community's environmental protection requirements. 2 All 27 Member States (in 2008) intensified their actions in the areas commonly recognized as a priority, such as protected wild fauna and flora species, sites, radiation emission, waste disposal, etc. The Directive left the Member States certain freedom in choosing the way its provisions would have been implemented.
The Russian Federation with some exceptions has not participated in the European agreements (or such participation has been so far only formal). It has been adapting its environmental legislation. However, as a party to several international treaties e.g. The issue of environmental protection in Russia after the dissolution of the Soviet Union has been the subject of several studies at both national and international levels. 4 The fact is that the environmental situation in the Kaliningrad Oblast and other regions of European Russia has an impact on the entire Baltic Sea Region. Water, air and terrestrial pollution, as well as the problem of nuclear plant emissions (the twounit Baltic-1 Nuclear Power Plant is currently under construction in the Neman District of the Kaliningrad Oblast), should be considered a matter of common concern. Nonetheless, there have been no comparative studies of this kind so far.
The aim was to determine whether existing national enforcement arrangements were adapted to the contemporary challenges of enforcement in the sphere of serious environmental offences. Considering this aim the following research questions have been formulated: (1) What are the effects of the 2008/99/EC Directive's implementation in the EU Member States, particularly in Poland? (2) What are the similarities between Russia and Poland regarding environmental criminal law? Are there any similarities in the way the law enforcement officials handle environmental crime cases? (3) What is the trend in environmental crime in both countries? Why there is such a trend? What could be done to improve the current situation?

The Implementation of the Directive 2008/99/EC
The Directive 2008/99/EC was aiming to achieve a high level of environmental protection. The premise for establishing its provisions was the growing concerns within the community over the rising environmental crime rates and their negative cross-border impact. There was a recognized need for more dissuasive penalties regarding environmentally harmful activities, which cause or were likely to cause substantial damage to the air (including the stratosphere), soil, water, animals or plants, including the issue of species preservation. Cross-border nature and impact of environmental offences, increasing crime trend fuelled by the profits and a low risk of detection, large disparities in sanctions in the Member States were (and still are) obvious shortcomings of environmental law enforcement. The experience showed that the penalties applied for the serious infringements of environmental law had been insufficient to achieve compliance with environmental protection laws. 5 The Directive prompted a change in a way the Member States define the most serious environmental offences and impose penalties. Although the matter of sanctions was left to the Member States, the Directive required for criminal penalties for both legal and natural persons to be ' effective, proportionate and dissuasive.' 6 According to the European Commission, the concept of ' environmental crime' should cover acts which 'breach environmental legislation and cause significant harm or risk to the environment and human health.' 7 The Directive 2008/99/EC was seen as a sign of consolidation of criminal law and 'Europeanization' of the protection of the environment. 8 Article 3 of the Directive contained the list of environmental offences which were expected to be the crimes: (1) illegal discharge of harmful substances or radiation into the air, soil, or water; (2) collection, transport, recovery or disposal of waste in an unlawful 4  (3) shipping waste in an unlawful manner; (4) operation of an industrial installation in which dangerous substances are stored or used in a way that causes or threatens environmental harm; (5) management or handling of nuclear materials or other hazardous radioactive substances in an unlawful manner; (6) illegal killing or transporting protected plants, animals, or specimens thereof; (7) illegal trading in specimens of protected plants and animals; (8) causing habitat deterioration on protected lands; and (9) production, trade, or use of ozone-depleting substances.
The Directive required the Member States to accomplish two primary tasks. Firstly, each Member State was prompted to incorporate the offences listed in Article 3 in the national criminal law. Secondly, each state was obliged to introduce effective, proportionate, and dissuasive sanctions. The Directive allowed the level of harmonization of the national penal codes to vary from state to state. Some countries have achieved full compliance with the Directive's requirements, while others penalized just some of the crimes against the environment such as water, air or soil pollution. As a result, some environmental crimes have been harmonized only 'partially' with the Member States criminalizing only some of the offences listed in the Directive. Besides, it appeared that a few Member States which had incorporated new crimes into their criminal codes had a problem with their proper enforcement, largely due to the weak monitoring and limited resources. 9 Consequently, the Directive's transposition has not introduced a reform of the environmental criminal law fitting the general aims of the document. It has been reduced to simple adjustments and partial complements on a national level. Nonetheless, the Directive has established a new legal framework and standards in the area of environmental protection, the diversification and aggravation of the penalties applied, and the expressed provision of the criminal environmental liability. 10 Poland has implemented the Directive by introducing new legal provisions regarding water, air, and soil pollution with a substance or the contamination of the water, air and soil with ionizing radiation. New criminal provisions have been introduced related to inadequate waste management. 11 The researchers even today indicate relatively low effectiveness of law enforcement and criminal justice agencies regarding environmental crimes. Cited among the reasons are improper control over the environment and little deterrent effect of the sanctions imposed. 12 In many states, the low number of prosecutions is accompanied by an even lower number of successful convictions. Also, there is a deficiency regarding subject matter experts in wild animal life and the area of environmental damage caused by toxic substances. 13 Nonetheless, since the provisions of the Directive have only recently been implemented, any decisive conclusions on the practical impact of the Directive on the protection of the environment in Europe should be considered as premature. In the Member States where environmental offences had already existed before the Directive 2008/99/EC, it has promoted a more comprehensive approach. Since then a few Member States have adopted special programs to prepare law enforcement officials to deal with numerous problems related to the evidence collection, optimal investigative and prosecution strategies. 14

Environmental Criminal Law in Poland and Russia
In Poland, the penal provisions for crimes against the environment are described in Chapter 22 of the Polish Criminal Code (Kodeks karny) 1997 (CC RP). 15 The chapter is entitled 'Environmental crimes' and it covers the most serious environmental offences. 16 There are 14 major and 12 qualified types of environmental 9 Keene (n 6). crime, which can be divided into 2 groups: (1) environmental crimes of a general nature covered in Articles 181 ( § 1 -destruction of plant or animal life of considerable dimensions; § 3 -distraction of plants or animal life causing essential harm; § 4 -unintentional destruction of plant or animal life of considerable dimensions; § 5 -unintentional distraction of plants or animal life causing essential harm), 182 (the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water), 185 (the above mentioned criminal offenses with the aggravating circumstances) and (2) autonomous offenses covered in Articles 181 ( § 2 -destruction of plant or animal life in the protected area causing essential harm; § 5 -unintentional distraction of plants or animal life in the protected area causing essential harm), 183 (the collection, transport, recovery or disposal of waste), 184 (improper handling of nuclear materials or other sources of ionising radiation), 185 (the above mentioned criminal offenses with the aggravating circumstances), 187 (destructions or considerable damage or essentially reduction of the natural values of a protected area or an object), 188 (building of a new facility or extending an existing one, or conduction of business activity, which threatens the environment), 186 (lack of care for protective devices). Some crimes under the CC RP may also relate to environmental protection, as, for example, causing a life-threatening event (Article 163), immediate endangerment of a life-threatening event (Article 164), endangerment of a specific life-threatening event (Article 165), hindering an environmental inspection (Article 225) or timber theft (Article 290).
The severity of the penalties for the crimes defined in the Chapter underlines their seriousness. Depending on the crime, the penalty may be a fine, the restriction of liberty or even the long-term imprisonment (up to 10 years). Nevertheless, fines and suspended sentences are used more frequently. As the study on the enforcement of environmental protection legislation in Poland shows, the Directives 2008/99/EC and 2009/123/EC did not lead to a substantial increase in the number of people prosecuted, or more severe penalties imposed. 17 There is a wide disparity between the number of registered (suspected) crimes and the number of crimes confirmed ( Table 1). Although the number of registered crimes is always higher than the number of prosecuted cases; in the case of environmental crimes in Europe those numbers are way below the average comparing to the other types of crime. 18 The limitation period for environmental crimes is up to 5 years in the case of offences punishable by a maximum term of imprisonment of fewer than 3 years, 10 years in the case of offences punishable by a maximum term of imprisonment of more than 5 years but no more than 10 years, 15 years in the case of offences punishable by a maximum term of imprisonment of more than 5 years (Article 101 CC RP). The limitation of the enforcement period is up to 15 years (Article 103 CC RP). Certain circumstances described in Articles 102, 102 CC RP such as starting of proceedings against a person, interrupt the limitation period. The length of the limitation period demonstrates that the impunity for serious environmental offences should be a matter of significant concern in Poland. Theoretically, a long limitation period allows for effective prosecution; however, the basic facts may have become obscured by the passage of time, and the punishment, as well as the issue of restitution, may become irrelevant. In Russia, environmental crimes are defined in Chapter 26 of the Russian Criminal Code (Уголовный кодекс) 1996 (CC RF) entitled 'Environmental crimes.' 19 The chapter contains a wider list of environmental offences in comparison with the Polish Criminal Code. There are 18 major and 23 qualified types of environmental crimes, although as in the case of Poland other crimes could also affect the environment. For example, the violation of safety rules during the siting, designing, building, or operating of facilities of atomic power engineering (Article 215 CC RF), concealment or distortion of information about developments, facts, or phenomena endangering the environment (Article 237 CC RF) may harm the environment. 20 The crimes defined in Chapter 26 of the CC RF can be divided into 2 categories. Firstly, there are environmental crimes of a general nature, which includes the crimes listed in Articles 246 (violation of the rules for environmental protection during the performance of works), 247 (violation of the rules for dealing with environmentally hazardous substances and waste), 248 (violation of safety rules in dealing with microbiological or other biological agents or toxins), 253 (contravention of the laws on the continental shelf and the exclusive economic zone) and 262 (violation of the regime of specially protected territories and objects).   38.5% of the fines levied in 2011-2015 did not exceed 5,000 rubles (approximately 72 euros), 38.1% of the fines were between 5,000 and 25,000 rubles (355 euros), and 21% were between 25,000 and 500,000 rubles (7100 euros). Only 2.3% of all fines levied in this period exceeded 500,000 rubles. The penalty of imprisonment was introduced only in 2.4-4.4% of cases, and in 20.6-26.9% of cases, the court imposed a suspended sentence. 23 The limitation period for environmental criminal offences is up to 6 years in the case of intentional offences punishable by a maximum term of imprisonment of fewer than 5 years and careless offences punishable by a maximum term of imprisonment of more than 3 years; 10 years in the case of intentional offences punishable by a maximum term of imprisonment of more than 5 years but no more than 10 years (Articles 15, 78 CC RF). The limitation of the enforcement period is up to 10 years (Article 83 CC RF). The limitation periods in Russia, therefore, are not too much different from those in Poland.

Comparison of the Relevant Criminal Law Provisions
The general conditions for criminal liability in both countries are similar. Only a small number of environmental crimes are abstract endangerment offences, such as the offences listed in Articles 186 (Unperformed duty), 188 (Harmful activity) of the Polish CC RP and Articles 247 (Violation of the rules for dealing with environmentally hazardous substances and waste), 253 (Contravention of the laws on the continental shelf and the exclusive economic zone) of the Russian CC RF. Most environmental crimes involve (or pose a danger of) significant harm to the environment, human life, health, and well-being. In Poland, the courts assume that the resulting destruction must be severe enough to make the restoration impossible. 24 The resulting damage should be significant. The significance of the damage, in this case, is an evaluative hallmark not explicitly defined by the criminal law. 25 The CC RF also makes use of this term providing great discretion for law enforcement officials. In 2016, Articles 256, 260 and 261 of the CC RF were amended. The monetary equivalent of the damage was introduced to harmonize law enforcement practice. This, in turn, poses some further challenges: (1) an accurate monetary assessment in case of some types of environmental damage such as soil or water pollution is impossible; (2) monetary-based assessment method makes it possible for law enforcement officials to establish and prove only partial damage inflicted by the perpetrator. To some extent, the uncertainty was resolved by the Russian Supreme Court (Верховный Суд). In its ruling of 18 October 2012, the Supreme Court recommended environmental forensics experts to be recruited in each case to determine the extent of the damage. These experts should be selected among the staff of the Governmental Environmental Protection Agencies (Государственные органы управления, контроля и надзора в области охраны окружающей природной среды).
The need to establish and prove the causation link between the perpetrator's behavior and the damage is another challenge. The temporal remoteness of damage in some cases is often the issue. Plus, the liability in this type of criminal cases cannot be imposed without mens rea. In both countries, the indictment for an environmental crime must refer to the legal provisions violated by the perpetrator. 27 Given the complexity of environmental law, it can lead to a situation where the crime is not only difficult to prove but also difficult to detect. The law often changes before or even during the investigation. Thus, it may be difficult to reconstruct the legal situation in force at the time when the crime was committed. Environmental law is one of the least stable branches of Russian law. The same can be said about the Polish law. 28 It is estimated that in Russia there are more than 500 legal acts related to environmental protection including federal laws, codes and government decrees. 29 There are not only federal legal provisions. Every region can produce its regulations, as the environmental protection and environmental safety matters are subjected to the joint management of the federal and regional governments (Article 72 of the Russian Constitution [Конституция Российской Федерации]). 30 The interpretation of these legal may present a challenge on its own prompting the investigators to use environmental specialists.
Thus, the comparison of the criminal law provisions in Russia and Poland shows many similarities. However, there are also noteworthy differences. In Poland, penal provisions can be found in various acts on specific environmental subjects, such as the Environmental Protection Act 2001 (Prawo ochrony środowiska), 31 Hunting Law 1995 (Prawo łowieckie), 32 Act on the protection of animals 1997 (Ustawa o ochronie zwierząt), 33 Nature Conservation Act 2004 (Ustawa o ochronie przyrody), 34 Waste Law 2012 (Ustawa o odpadach). 35 The protection of the environment through criminal law in Poland is additionally enhanced by the imposition of administrative sanctions by the local authorities and specialized public institutions. 36 Actually, under Polish law, it is possible to establish administrative responsibility in parallel with the responsibility for environmental crimes and environmental petty offences administrative sanctions. 37 The latter could be even more severe (financially) than the criminal ones. It is also important that administrative responsibility is based on the objective criterion, there is no need in establishing the perpetrator's guilt. 38 Considering this, there is a tendency toward the further strengthening of the public authorities notably at the local level, as well as the decriminalization of environmental offences in favour of administrative liability. 39 административных правонарушениях в области охраны окружающей среды и природопользования, а также о рассмотрении гражданских дел по искам о взыскании ущерба и другого вреда, причиненного в результате нарушения экологического законодательства Russian criminal law is a codified one. Penal provisions regarding environmental crimes can be found only in the Russian CC RF. Another distinguishing feature is the place environmental crimes occupied in the internal structure of the law. In Russia, all environmental crimes are determined in Chapter 26 of the CC RF entitled 'Crimes against public safety and public order.' This is not a coincidence, as the public safety and public order have always been considered more important than the protection of the environment. The fact that these crimes have been incorporated in the chapter dedicated to public safety indicates that these offences should be treated from the perspective of the environmental safety of the population, not as a value in itself. 40 By contrast, in Poland, environmental crimes are separated from other crimes. The fact that there is a special chapter dedicated to them may suggest that the environment itself is considered to be the main object of protection. 41 However, it should be remembered that most of the crimes described in Chapter 26 of the CC RF relate directly to human life and health. Hence, the environment itself is also an object of protection. The Russian concept of ' environmental safety of the population' has a much broader meaning than it may appear giving the literal meaning of the legal provisions mentioned above. As it can be deducted from the provisions of Article 1 of the Federal Law on Environmental Protection (Об охране окружающей среды) 2002 the law equally protects both the environment and individual and societal well-being. 42,43 Some Polish researchers, in turn, note that the crimes against the environment defined in Chapter 22 of the CC RP follow immediately after the crimes against freedom. The Polish legislator thereby emphasizes a special significance of the 'public good,' that is the natural environment. 44 By contrast, Chapter 26 of the CC RF follows the chapters describing crimes against life and health (Chapter 16), personal freedoms (Chapter 17), economic crimes (Chapters 21, 22 and 23), crimes against public security (Chapter 24), public health and morality (Chapter 25). We suggest that this may be an issue concerning the guiding priorities for law enforcement. Relatively limited budget allocations for environmental protection activities in Russia are another proof of the longlasting discrepancy between public interests and the interest of environmental protection. 45 The Russian Federation is not compelled to implement the provisions of the Directive 2008/99/EC regarding the criminal responsibility of legal persons. In contrast to Poland, Russian law does not recognize the responsibility of legal persons despite numerous studies showing the practical advantages of its introduction. 46 As of today, the legal persons in Russia can be held responsible for the environmental damage under the general civil law provisions. Nonetheless, it is necessary to keep in mind that in such a case the persons having a leading position within the legal entity's structure should be found guilty of a crime or petty administrative offence. In practice, the criminal investigators need to identify direct perpetrators -employees, and then to prove that they were acting at the employer's request. Therefore, the legal entities in Russia bear only limited responsibility. In Poland, the provisions on the criminal responsibility of legal entities require that an offence is committed by a natural person who acts on behalf of and in the name of the legal entity under the authority or duty to represent it, to make decisions in its name and to exercise internal control. Since there is always an excuse that the employee (if there is one) was acting independently without the employer's authorization, it is extremely difficult to establish the guilt of such a person. Studies show that there are considerable implementation problems regarding the prosecution of legal persons for environmental criminal offences. 47 In both countries, environmental crimes are prosecuted ex officio as indictable offences, and law enforcement officials are obliged to investigate them. Unlike Poland, in Russia, there is a system of prosecutors' supervision concerning environmental protection laws established in 1986. There are 82 specialized prosecutor's offices with more than 500 prosecutors currently employed. 48 Nonetheless, there are no specialized environmental units within the police forces. Environmental investigations are carried out by police investigators who often lack special training and considerable experience. It can be assumed that the lack of adequate preparation and specialization among criminal investigators affects the number of successfully prosecuted cases.

The Analysis of Publicized Investigative Activity and Adjudicated Cases
The number of environmental crimes being reported, investigated, and brought to trial in both countries is relatively small. Environmental criminal offences account for less than 1% of the total number of the reported crimes. There are also significant differences between the number of recorded (possible) offences and the number of confirmed crimes. The law gives broad discretion to law enforcement authorities. The act formally exhibiting the indicia of a crime can be categorized as a minor, administrative offence. 49 It is often in the law enforcement's best interest since under the administrative law there is no requirement to prove the offender's guilt, just the mere fact that there was a violation of the law. Such a selective approach should be considered when discussing official crime rates. 50 It should also be born in mind that an unknown number of environmental offences went unrecorded. In Russia, the number of unrecorded environmental crimes is estimated at 95-99%, though so far there have been no objective studies on the issue. 51 In Poland, there is no reliable data on the unrecorded crimes either. As Table 1 shows, the intensity of police activity may increase the total number of known offences, as well as improve clearance rates. However, it is certainly possible that the 'universe' of environmental crimes in both countries is only in part described by the number of registered and confirmed offences. At first glance, Russian criminal statistics indicate more efficient law enforcement, since it seems that every second recorded crime is confirmed. The dynamics of the number of recorded crimes appear positive (Table 2). However, these statistics should be approached with caution. In Russia, not all reported crimes are recorded, and the state officials confess that in its current state the Russian central crime register cannot provide reliable data. To an extent, this is indicated by the number of citizens' applications concerning environmental protection issues received by the Russian Commissioner for Human Rights (Управомоченный по правам человека в Российской Федерации). In 2015, 125 such applications were registered, thus, in 2016 the number increased to by more than 30% (399). 52 Some reported crimes remain unregistered or left recorded as petty offences. By contrast, every allegation of a crime in Poland is recorded, regardless of the police's knowledge of a person responsible and the prospects of successful prosecution. This can partly explain the difference between the number recorded offences and the number of confirmed environmental crimes in Poland.

Discussion
In both countries, law enforcement officials face many challenges pursuing environmental criminal offences. The national law gives them broad discretion in deciding whether the unlawful behavior constitutes a crime or petty offence. As a result, law enforcement can be selective. Of course, this does not necessarily mean that it becomes ineffective. Selective law enforcement may be provoked by the limited law enforcing resources, current statute limitations and individual quality difference of police staff. The situation is different when law enforcement officials select the rules they enforce according to their preferences, rather than the law. Then the quality of law enforcement suffers. Selective law enforcement can be manipulated within rational limits by introducing monetary equivalent for the damage assessment. It has, however, its downsides when we consider the interests of environmental protection. The lines are often drawn arbitrary and do not always correspond to the needs of crime prevention. Plus, certain types of environmental damage cannot be assessed based on monetary value. In our opinion, wider use of administrative sanctions and simplified administrative procedures can be an effective remedy considering less significant environmental offences, such as the performance of a given activity without the required authorization, fail to meet certain requirements and fulfil other administrative duties. Exceptions should be made for the offences resulting in human death, significant health issues or permanent harm to the environment. An important element of legal environmental protection is the criminal responsibility of legal persons for environmental violations. The lack of pertinent legal provisions or their ineffective enforcement does not contribute to the due level of accountability of commercial enterprises. Legal entities should be subjected to financial sanctions in case an offence has been committed in the context of commercial activity without an element of personal guilt. 53 It should be noted that in Poland, there is a clear tendency to depart from criminal responsibility in favour of administrative responsibility, as the latter in certain situations can be more deterrent and proportional. At the same time, law enforcement authorities prosecute more serious environmental offences. It applies to both natural and legal persons. This practice can be regarded as an example.
The Russian experience, in turn, shows the necessity of establishing specialized investigative bodies within the police as a response to the development of this crime phenomena. It has proven to be the most efficient approach to deal with other crimes such as terrorism, organized crime, or money laundering. The staff within these units should be appointed based on qualifications and receive specialized training. Nonetheless, we should remember that other criminal offences may as well be related to environmental protection. So, it is necessary to provide for greater coordination between the police units.
Currently, most environmental crimes in Polish and Russia are consequential offences. This means that in each case law enforcement officials must establish a causation link between the alleged violation of environmental provisions and the defendant's behavior, which often constitutes a major challenge for law enforcement. There is usually a time lag between the damage and alleged activities. Nature itself is changing constantly effectively masking any traces of the crime. We suggest that instead, the risk-based approach may be a better alternative to avoid the difficulties relating to the issue of causation. 54

Conclusions
1. The Directive 2008/99/EC has brought significant changes to environmental criminal law. Nonetheless, despite the resulting extension of criminal provisions and further tightening of the sanctions the law enforcement of amended provisions presents many challenges. The relatively low numbers of recorded crimes and successful prosecutions indicate that law enforcement officials experience difficulties dealing with this type of crimes. The complexity of such cases provokes selective enforcement which does not always correspond with the interests of environmental protection. 2. The sanctions provided for by criminal law indicate that environmental crimes in both countries are treated, at least formally, as serious criminal wrongdoings. A closer look, however, reveals inadequate treatment of the criminal offenders with fines and conditional imprisonment prevailing. This does not correspond with the interests of environmental protection either. Nonetheless, the introduction of administrative responsibility for the infringements of the national environmental law in Poland may compensate these shortcomings of the case-law. 3. The lack of corporate criminal liability or its ineffective enforcement is also the issue. Nonetheless, there should be a more selective approach. Legal persons should be held criminally liable for the serious environmental wrongdoings resulting in human death, serious health issues, as well as permanent and considerable harm to the environment, committed for their benefit by any natural person.