26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 24

Judicial Training and research on EU crimes against environment and maritime

pollution

Entela Cukani 

Environmental Crimes: Marine Pollution – Situation and Legislation Applicable in

Albania

Entela Cukani

General overview

Albania with its 28,748 km2 is one of the smallest countries in Europe situated on the Western edge of the Balkan Peninsula.

The coastal exclusive economic zone covers about 12,000 km. It can be divided into two different areas:

the northern - Adriatic coast considered the accumulation marine area, generally a sandy one, with a total length of about 259 km crossed by nine rivers;

southern - Ionian coast which runs southeast about 170 km from Cape Karaburuni to Stillo Island on Greek border, this coastal zone is mainly rocky;

General overview

Albanian coastal zone is the area where social-economic development in the past and nowadays, has been more intensive than in the rest of the country

during the ’90, most of Albanian industries, many of them in the northern part, were obliged to close down – migration of people from these zones to the costal area

Now days about 60% of the Albanian population is living in the coastal areas

diminishing of pollution as a result of the closure of the industries

increase of urban pollution in the coastal area caused by the tourism development and by the increasing number of inhabitants.

Main causes of environmental and marine pollution

Uncontrolled migration of people – construction of thousands of illegal constructions along the coastal zone not preceded or accompanied by necessary infrastructure - tourist constructions

The wastewater, are discharged untreated into the surface waters and into the sea (Part of the cities and towns of Albania are not connected to the sewage network and part of the existing network is very old)

Operational pollution from ship by illegal discharges of oil and oily mixtures into the sea (ARMO case)

Urban thrown into the rivers.

Environmental legal framework

1998 (Constitution of the Republic of Albania)- some principles and requirements for protection of environment such as the principle of the sustainable development and the public right of environmental information, became constitutional norms Chapter IV – Economic, Social and Cultural Rights and Freedoms

Article 56 “ Everyone has the right to be informed for the status of the environment and its protection”

Chapter V—Social Objectives article 59 (points e-f) states the obligation of the state to

provide for a healthy and ecologically adequate environment for the present and future generations, as well as the rational exploitation of forests, waters, pastures and other natural resources, on the basis of the principle of sustainable development.

(continue…….

Environmental legal framework • 1993. First national Environmental Law “Law on Environmental Protection” • 2002. New “Law on Environmental Protection” The Law on Development of Tourism Priority Zones (1993), The Law on Fishing and Fish Farming (1995), The Law on Water Resources (1996), The Law on the regulatory framework of the water supply sector and the treatment

of the polluted waters (1996), The law on Environmental Impact Assessment EIA (2003) The Law on Protected Areas (2002) The Law on Protection of Marine Environment from pollution and damages (2002), The law on Environmental Management of Wastewater (2003) The law on Environmental Management of Solid Waste (2003) Law No. 8053, dated 30.06.1999 on the right of information on official documents Law No.8875, dated 04.04.2002 on Coastal Guard., which regulates the

organization and functioning of this important state structure in the protection of marine environment.

Albanian criminal code provisions Some of the environmental violations represent criminal acts under the

Albanian Criminal Code, Chapter IV (art 201 – 207) “Offences against the environment” and are prosecuted under the general principles of the criminal legislation.

Article 203 intitoled Water Pollution states

Pollution of the seas, rivers, lakes or network resources waste collection and distribution of toxic, radioactive or other substances that disrupt the ecological balance, shall be punished by imprisonment from one to five years. The same act, when causing consequences for the health of people, is sentenced from five to ten years.

State documents relevant for environment

National Water Strategy – Approved by the Albanian Council of Ministers on 2004

National Action Plan for Environment – Approved by the Council of Ministers by the decision no. 34, dated 28.01.2002

National Action Plan for Environment and Health -- Approved by the Council of Ministers on 1999.

Local Environmental Action Plans, LEAPs

State of Ratification of ConventsConvention/ protocol (relative to marine and costal zones)

State of ratification

Year

Barcelona Convention for the marine protected areas, 6 protocols

Ratified 2000

Ramsaar Coinventions Ratified 1995

Aarhus Convention on Access to Information, PublicParticipation in Decision Making and Access to Justice

Ratified 2000

Espoo Convention on Transboundary Impacts

Ratified 2004

Art 122 Constitution

Legislative developments (to come Legislative developments (to come into force)into force)

Some developments are made in horizontal legislation drafting new laws which transposes the European directives:

Law no. 10431, dated 9.6.2011 “On the environmental protection”,

Law no. 10440, dated 7.7.2011 “On the environmental impact assessment”,

Law no. 10448, dated 14.7.2011 “On the environmental permitting”,

Draft law “On the strategic environmental assessment (planned to be approved)

2012. In process the “Law on SEA”

New Strategic DocumentsNew Strategic Documents

New strategic documents

National Waste Management Plan 2015-2025

National Waste Strategy

National Cross-Sector Strategy of Water Supply and Sanitation Services

Regional Waste Management Plans for the districts of Tirana and Elbasan.

Management Plan of Butrinti National Park

Management Plan of Managed Nature Reserve Kune-Vain-Tale

Law 10431, date 09.06.2011 “ On Environmental Protection”

Principal goal: prevention, control and reduce water pollution, air, soil and pollution of any kind (art. 3);

Definitions article 5

"Environment" are natural components: air, land, water, climate, flora and fauna in the totality of interactions with each other, as well as cultural heritage, as part of the environment created by man.

"Pollution" is the introduction of direct or indirect, as a result of human activity, of substances, vibrations, radiation, unpleasant odors, heat or noise into the air, water or land, to the extent that may be detrimental to environmental quality or human health, which could lead to material property damage or worse and interfere with other services to legitimate uses of the environment.

Responsibility: the polluter pays principle 2002 and 2011 legislation

Refers to the costs paid by the polluter for the improvement of the polluted environment and its restoration to an acceptable state. This is reflected in the costs of production, consumption of goods and services that cause pollution and damages.

The environmental regulatory authorities may: impose fines, confiscate the equipment or the materials causing pollution or damaging the environment; suspend or revoke the environmental permit, close the activity.

in case of administrative contraventions and/or criminal violations, there shall also be evaluated the damages caused to the environment by the infringing person who shall be liable for the payment of the sum.

Violation: penal / administrative ones Violation (art 69)

1) Penal act Environmental Inspectorate asks for penal proceding

2) Administrative violations(a.v) Environmental Inspectorate set penalties,

sanctions may be taken into two calendar years from the date of decision of a.v .

In case of serious offenses of this law or if the person has not paid the penalty imposed under this law, the inspectorate has the right to put the property under sequestration

In case of fine not paid in time, the Ministry of Environment may suspend the environment permit.

Entity to which the measure of suspension or revocation of the environment permit has been imposed, has the right to appeal to the head of the responsible structure as provided in specific legislation.

.

Which law sanction maritime pollution?Law No. 8905 – 06.06.2002 “On Protection of Marine from

Pollution and Damage” as amended in 2006

Developed as an obligation for incorporating into the Albanian national legislation requirements that come out of the Barcelona Convention and its Protocols

The aim of this law is the protection of the sea from pollution and damages from human activities in the sea and the coastal area and pollution and damage prevention as well

The law specifies that the marine environment is integrated part of the environment of the Republic of Albania. As such, it’s protection is subject to all the environmental laws and bylaws of the Republic of Albania and the international conventions, protocols, and agreements ratified by the country.

Protection of marine environmentEspecially obliged to protect the marine environment and to implement the provisions of this law are:

legal and physical entities, public or private, national or foreign, that utilise the marine environment or carry out their activities in this environment;

every deployment on the sea coast;

every vessel deployed or sailing the sea;

aeronautical craft flying over the marine environment

The protection of the marine from pollution and damage is а duty of central and local governmental structures, civic оrgаnisаtiоns and citizens

The administration of the marine environment is the responsibility of governmental bodies entrusted by law

Control authority - exercised directly by the Inspectorate of Protection of the Еnviгоnment, bу portual authorities, and other structures as defined by law.

The Inspectorate interacts with portual authorities, the Fishing Inspectorate, the State Роlicе and the Coast Guard of the Republic of Albania (art.7).

The control operated by such Inspectorate has to be continues and permanent ( art.8)

Forbidden activities

Art. 6 Prohibit activities

the dumping of hazardous, poisonous and explosive substances and waste;

the dumping of substances and solid matter;

the discharge of hydrocarbons and polluted waters;

the discharge of solid substances and material of any kind and nature, with the exception of fishing vessels and equipment and the materials and resources needed for the construction of ports, pontines and other structures, in accordance with blue prints approved by the Ministry of the Environment and conditions set by this Ministry;

the dumping of waste and all manner of substance from the ships, platforms, installations and the coast;

the transportation of hazardous substance and waste;

the sinking of ships, cargoes and merchandise of all type and manner;

the sinking and abandonment of any installation that used to serve for various activities;

the construction and operation of equipment with radioactive material;

the burning of substances and materials of any kind;

the entrance into ports with unclean vessels of any kind

The law prohibits activities listed in article 6 .

But the same article specifies that “Waste defined in Annex 2 attached to this Law may be dumped into the sea only upon authorization of the Ministry of Environment”

Pollution management –

Chapter IV

The collection and disposal of waste in the marine environment by economic and social activities and by anchored or sailing ships is subject to the provisions of this law and the by-laws ensuring its implementation

Regulation governing the management of waste in the marine environment is designed jointly by the Minister of Environment, the Minister of Transports & Telecommunications and the Minister of Territorial Regulation and Toursim

Sea platforms, ships of gross tonnage above 400 BRT, and any activity taking place in the marine environment, are obliged:

to carry waste collection containers in accordance with the type and proportions of the installation and activity;

to use filters that separate water from used hydrocarbons;

to record in a diary book the operations dedicated to collection and disposal of waste;

to create internal monitoring systems and publicize the monitoring data

Notification of pollution (article 13)

Регsоns dеtесting pollution in the marine environment аrе obligated to give рrореr notification to the port authority оr the closest gоvеrnmеntаl authority.

Ship captains, platform operators оr persons of equal rаnk in аrmу mаrinе environmеnt activity аrе obligated to notify port authorities immediately upon detecting pollution caused by hydrocarbons оr hazardous substances.

Such notifications should include dates indicated in the same article.

The Port Authority upon verification of the truthfulness of notification, informs the Ministry of Transports and Telecommunications, the Ministry of Environment and the local government in the territory of which the pollution has taken place.

Elimination of pollution and sanctions

Pollution elimination article 14

.The physical or legal entities causing pollution to the marine environment are obligated to clean up the polluted zone and return it to its previous condition.

They are obligated to indemnify damages, as well.

In the first instance, the obligation to take steps to eliminate the pollution they may have caused falls upon the captain of the ship, the operator of the platform and persons of equal rank in other activities taking place in the marine environment

Forbidden activities article 18

The Inspectorate for Protection of the Environment is entitled to institute charges against subjects involved in activities forbidden by Article 6 of this Law if and when such activities qualify as criminal offences.

2. In cases when violations qualify as administrative infringements, the Environmental Inspectorate authorises the immediate termination of the activity and the confiscation of the craft and equipment causing the pollution.

In case of small scale pollution as defined by Article 2,are imposed fines from thousand to 500 thousand leks.

21

Law and practice (open discussion) 12 July 2011

A great quantity of “Solar” (around 1 ton), a fuel ingredient, was spilled in the beach of Zvernec, near Vlore, by a ship of the ARMO company causing a great pollution of this coastline.

Any prosecution???

What about the elimination of the pollution?

Polluter pay principle?

Which is the Ministry or State Organism dealing with maritime crimes and

environmental crimes in general? Ministry of Environment, Forests and Administration of Waters

National Environmental Agency, as the competent authority to determine the conditions to be complied with for environmental permits. During the transition period (2 years from the entrance into force of the 2011 law) such Agency will operate under the supervision of the Environment Ministry but the law is silent concerning more of the cooperation modalities.

Regional Environmental Agencies (REAs) - Executive territorial agencies of the Ministry of the Environment with the competence of giving the environmental permits, environmental inspection and monitoring

Environmental Inspectorate, units responsible for the environmental issues near the central and local authorities

Local Government Authorities

Public medias in realizing the public right to be informed on the state of the environment continue….

Role of the Environment Inspectorate functions within the Ministry of Environment, as a specialized body on

environmental control. composed by the Chief Inspectorate, inspectors of the Ministry of

Environment whom exercise their control activity in all the territory of the state and inspectors of the REA-s that operate within the prefecture’s territory

exerts continuous control on the environment and the polluting activities; orders for the implementation of obligatory measures to be taken for the improvement of the state of the environment, for the mitigation of the pollution and the damage of the environment; informs the local authorities on the state of environment; imposes sanctions ect.

When the violation constitute a penal act, the Environmental Inspectorate asks for penal proceeding.

When they constitute administrative contraventions penalties are set directly by the Environmental Inspectorate.

Role of Local Government Authorities

Some of the duties With 2003 law on the competencies

of local government, responsibility for urban sewage and solid waste management, (two of the main causes of environmental pollution) goes from the Ministry of Territory Adjustment and Tourism to the Municipalities and Communes;

draft local plans for environmental protection and territory adjustment;

inform the public on the state of the environment and local activities that are subject to the environmental impact assessment

administer the urban wastes, the waste water treatment and solid waste plans

Bad practices Regional and Local Environmental

(Development) Strategies are rare documents in the country (no examples for marine zones);

Local authorities play no active role on informing the public regarding different aspects related to Hot spot presence, impacts and potential interventions

Example : the zone of the “Marine School” in Vlora, has been linked like an HotSpot for the high degree of pollution as a result of the wastewater discharges by the Ministry of Environment, underlining that “Bathing Must be Strictly prohibit”. However, not a table or other type of such communication is given to the population, that continuous to use this part of the coastal zone for bathing.

Control of sea environment and

sea activity

...in adittion is exercised directly by:

the Inspectorate of the Protection of the Environment that interacts with :

Harbour Masters

Fishing Inspectorate,

State Police and the

Coast Guard of Albania - As stated by the Law No 8875 of 04.02.2002 the Albania Costal Guard is the law enforcement body that include pollution by ships. Is under its competencies to effectuate the monitoring and the detection of the polluter. On the other hand this institution is responsible for collecting evidences and investigations. In such situations prosecutors and magistrates are not involved.

The Coastal Guard of the Republic of Albania (branch of the Navy) is

established for the purpose of enforcing the law of the sea.

a) To effectuate Marine Pollution Education, Prevention, Response and

Enforcement;

b) To enforce legislation with regard to marine fishing;

c) To ensure recreational boating safety;

d) To enforce legislation with regard to living marine and submarine resource protection, including in the sea bed;

e) To enforce legislation on the archeological and cultural values in the

Albanian sea area

Weaknesses of the institutional framework

Beside the good legislation and institutional framework the concrete communication in regional and local level is considered very weak and not concretely coordinated.

There is a lack in communication between local institutions to setup a regular monitoring procedure for the permits given to the business of construction works.

It is not harmonized cooperation between Inspectorate of Environment and REAs, REAs with Local Government and other Regional and Local Institutions

the Ministry of Justice, magistrates and prosecutors are not sufficiently involved in the matter of sanctioning illegal discharges (especially the ones from the ships) – only few cases introduced to the courts

To whom and how report an environmental crime? Who gather evidence for

prosecution?

1) Penal act: the Environmental Inspectorate asks for penal proceeding.

Within port jurisdiction Within the territorial sea the Harbor Master have the Costal Guard Officers have the enforcement

power. law enforcement power.

Reports are transmitted to the public prosecutor who initiate the proceeding.

The competent court is the Judicial court of the place where the offence occurred

Open discussion on marine boundaries

1970

2001

2009

Constitutional Court decision (2011)

Territorial and internal boundaries

…prosecution2) Administrative contraventions: penalties are set directly by the Environmental Inspectorate

Against the decision for penalty, within 10 days from its notification, it is possible to appeal at the Ministry of Environment who has to respond to the appellation within 15 days from its deposit. Against such decision or to the non – response within the deadline of 15 days, it is possible to propose an appeal at the Tirana District Court

not respect the measures and the sanctions decided by the Environmental Inspectorate/same contravention committed in the same year the Chief Inspector or the Minister of Environment order the suspension or the permanent closure of the activity

Against such decision it can be an appeal to the district court within 5 days from . the day of the receipt of the notification.

Specific case by case situation persons detecting pollution in the marine environment

obligated to give proper notification to the port authority or the closest governmental authority.

Ship captains, platform operators or persons of equal rank in any marine environment activity obligated to notify port authorities immediately upon detecting pollution caused by hydrocarbons or hazardous substances

Port Authority upon verification of the truthfulness of notification

. Informs

the Ministry of Transports and Telecommunications, the Ministry of Environment and local government in the territory of which the pollution has taken place.

Other cases pollution caused by the military the

Inspectorate of Environment notifies the Ministry of Defense

obligated to launch the necessary measures for cleaning the polluted zone.

pollution caused by foreign military ships the diplomatic channels submit due notice to responsible state with requirements for cleaning pollution and indemnifying damages.

Norms criminalizing Illegal disposal of hazardous waste in sea or rivers

Albania prohibits the imports of hazardous wastes for storage, preservation or disposal by virtue of Article 22 of the Environmental Protection Law (8934/2002).

Moreover, Article 6 of Law On Protection of Marine Environment from pollution and damage among other forbidden activities lists :

а) the dumping of hazardeous poisonous and explosive substances and waste;

с) the discharge of hydrocarbons and polluted waters;

f) the tгаnsроrtаtiоn of hazardous substance and waste;

(continue….

Transportation of hazardous waste without the permission of the receiving country

Germany to Albania (Schmidt-Cretan case)

Between 1991 and 1992, a German company exported 480 tons of hazardous wastes in five shipments as humanitarian aid to Albania. The transfer was legal under EC regulations in force at the time. Return of the chemicals was requested when the Albanian authorities discovered the hazards involved, but their prior consent provided a legal base for refusal .

The Basel Convention, the publicity by Greenpeace, international pressure and Albania’s inability to dispose safely of the chemicals, forced the German government to accept the return of the 1991-92 shipments.

EU and World Bank (project) to Albania -1992

Under the EU's Poland-Hungary Aid for the Reconstruction of the Economy (PHARE) Program, 214 tons of pesticides were transported to Albania. The World Bank funded a similar project (Critical Imports Project), which led to an additional import of 160 tons of pesticides. Reports published in 1993 indicated that Albania had already possessed 3000 tons of pesticides stored by the Communist government.

Furthermore, CNN reported that continued acceptance of hazardous wastes seriously endangered Albania industry and questioned whether it had become ‘Europe’s dumping ground’ rather than its ‘playground’.

Transport of hazardous waste: Basel Convention and Albania

The Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal is an international treaty that was designed to reduce the movements of hazardous waste between nations, and, specifically, to curb the transfer of hazardous waste from developed to less developed countries.

Albania signed the convention on June 22, 1999

Article 13, paragraph 3, obliges signatory countries to annually submit information on all trans-boundary movements of hazardous wastes or other forms of waste in which they have been involved.

The reports must include the amount of wastes exported or imported, their category, characteristics, destination, and the method of disposal.

Because of differences in national definitions of hazardous waste, waste classifications, and different methods of data collection, not all movements of hazardous wastes were being recorded by the signatory parties –( Nairoby 2006)

Annex I of the Basel convention classifies different type of waste in trans-boundary shipments with a Y-code which are to be considered hazardous .

Transporte of hazardous waste: Basel Convention and Albania

Data from the UN Commodity Trade Statistics Database indicate that between 2003 and 2010 large amounts of potentially hazardous waste – including chemical substances – were exported from the EU to Albania. This is contrary to the fact that the import of waste into Albania is highly restricted. Waste matter yet to be imported requires a special permit from the cabinet and formal approval from the Minister of the Environment. Despite this tightening of regulations, waste continues to be dumped in Albania without the necessary permits.

Albania has been subject to the Basel Convention since 1999 and is thus obliged to divulge information pertaining to all cross-border transport of hazardous waste substances. Nevertheless, because of differences in national definitions of hazardous waste, classification codes and differences in the manner of data collection, it would appear that not all transports are recorded. Waste materials transferred to Albania and registered in countries of departure is still not accompanied by a convention secretariat report on import into Albania.

Hazard in France but not Albania

For example, in 2004 France reported the dispatch of 588 tonnes of waste that resulted from the treatment of metal surfaces, the importation of which was never reported by the Albanian authorities (details concerning the legally required approval from the Albanian Cabinet are also missing). Details regarding further treatment prior to dumping also remain unclear.

According to the report that France filed with the secretariat, the 588 tones of waste shipped to Albania in 2004 were classified as Y- 17.

Report published by the European Environmental Agency in November 2010 underlined that Albania has “no system for the safe management” of hazardous waste.

The report noted that “Hazardous waste generated by the industrial sector and municipal wastes are deposited together with urban waste”

Are there cases brought before the courts and supreme courts on ENvCr & maritime pollution?

One of the main problems for the marine pollution in Albania are the illegal constructions, frequently accompanied by solid waste discharges into the sea or by extending basements with stones and inert materials inside the sea in order to build other constructions

Such, situation according to art. 203 of the Criminal Code constitutes an environmental crime.

In some cases administrative sanctions have been applied but no removal of the pollution has been ordered. In some other cases interviews given by local actors like Environmental Inspectorate, or local Municipality officials makes it clear that there is a big lake of coordination and training of members operating in such structures.

Case under prosecution

The complex with two apartment buildings is being constructed on a basement that was extended with stones and inert materials inside the sea, and the construction company has shown the permit on a billboard.

But the environment chief inspector, declared that inspectors have fined the company for violating regulations and surpassing the limits of the permit. The fine is 2 million ALL, but the work is still going on (up to 2011)

Environment Inspectorate says that they do not have the competences for stopping the construction works. Vlore Municipality officials refused to speak for this case, but they declared that they have suspended the construction works once. In the meantime there have been no interventions by the construction inspectorate and the police. Sources from Vlore prosecution declared that this prosecution will soon inspect the construction. The prosecution declared that they have opened the case .

Illegal mini-piers builders fined (Vlore)

The Regional Environmental Director, showed the punitive measures that were given to mini-pier constructors, mainly fines.

Despite these fines, the illegal constructions are still going on and local authorities have not stopped them.

No one of the violators has been criminally charged.

Wastewater

descharge

Diractorate of Environmental Control « drastic action plan 2011»

In order to stop such discharges into the sea, on 2011, the Directorate of Environmental Control took some drastic measures for those cases when illegal discharges of wastewater into the sea were met.

In these cases the “action plan” provides for destruction of sewerages that goes into the sea – and in case of repeated infraction notice will be given to the competent institution for criminal prosecution.

The same prosecution is intended to be held also for local government executives in those cases where the permits are given without the correct environmental impact assessment certifies.

Environmental Agencies report 2010 - 2011

during 2010-2011 fines have been imposed to over 240 entities and over 135 other have been submitted to the measures of “suspending activities” due the control of discharge of wastewater.

During 2011 over 19 municipalities have been fined by the Environmental Agencies

Also the pipes of west water discharges without filters, in most beaches have been removed but the situation is still far from being resolved, because now in some places the discharge is made directly in the send ( Golem – Mali I Robit)

ConclusioneThe Albanian Government is still pursuing with

the harmonization of its national legislation with the European Union environmental one.

2011 new package of laws dealing with environmental issues

Lack of coordination among the differente institutiones

Ministre of Justice and prosecutors need to be more involved

Thank you!

Entela Cukani