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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Vol. 39, Nº 71 (2021), 224-244
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Criminal Liability of Legal Entities for
Environmental Crimes: Problems of Law
Enforcement Practice
DOI: https://doi.org/10.46398/cuestpol.3971.11
Yuliia O. Danylevska *
Tetiana A. Sokur **
Oleksandr M. Bodnaruk ***
Andrii V. Shevchuk ****
Oleksiy V. Stratiy *****
Abstract
The aim of the article was to conduct a comparative legal
analysis of the features and problems of criminal prosecution of
legal entities for environmental crimes. The research objectives
were fullled through modern methods of cognition. The leading
practical method was the method of observation. The study
allowed to form a conceptual understanding of theoretical ideas about
environmental crimes of legal entities in Ukraine. Currently, Ukraine
is trying to focus in its legislative innovations on the implementation of
progressive approaches to the introduction of a comprehensive institution
of criminal law measures regarding the liability of these entities. Relevant
legal mechanisms and comments identied in the practice of the European
Union and substantiated by scholars, can be implemented in the legislation
of Ukraine. Amendments to the rules governing the procedure for eective
prevention of environmental crimes by legal entities are proposed. It seems
reasonable to introduce an active monitoring analysis of anthropogenic
activities of companies, and the creation of special units to identify relevant
violations. The mechanisms for implementing the set of preventive and
* PhD in Law, Senior Researcher, Head of Graduate School of Donetsk Law Institute of the Ministry of
Internal Aairs of Ukraine, 87510, Mariupol, Ukraine. ORCID ID: https://orcid.org/0000-0002-1893-
8473
** PhD in Law, Associate Professor at the Department of Criminal, Civil and International Law, Law
Faculty, Law and Management Institute, Zaporizhzhia Polytechnic National University, 69063,
Zaporizhzhia, Ukraine. ORCID ID: https://orcid.org/0000-0002-2061-2229
*** PhD in Law, Associate Professor at the Department of Criminal Law, Faculty of Law, Yuriy Fedkovych
Chernivtsi National University, 58012, Chernivtsi, Ukraine. ORCID ID: https://orcid.org/0000-0003-
0752-8011
**** PhD in Law, Associate Professor at the Department оf Criminal Law, Faculty of Law, Yuriy Fedkovych
Chernivtsi National University, 58012, Chernivtsi, Ukraine. ORCID ID: https://orcid.org/0000-0003-
4501-0440
***** PhD in Law, Assistant at the Department оf Criminal Law, Faculty of Law, Yuriy Fedkovych Chernivtsi
National University, 58012, Chernivtsi, Ukraine. ORCID ID: https://orcid.org/0000-0001-8381-2677
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monitoring measures outlined in the article, set the background for further
scientic research.
Keywords: environmental crime; criminal liability; anthropogenic
impact; legal entities; environmental crime.
Responsabilidad Penal de las Personas Jurídicas por
Delitos Ambientales: Problemas de la Práctica Policial
Resumen
El objetivo del artículo fue realizar un análisis jurídico comparado de las
características y problemas de la persecución penal de las personas jurídicas
por delitos ambientales. Los objetivos de la investigación se cumplieron
mediante métodos modernos de cognición. El método práctico principal
fue el método de observación. El estudio permitió además formar una
comprensión conceptual de las ideas teóricas sobre los delitos ambientales
de las personas jurídicas en Ucrania. Actualmente, Ucrania está tratando
de centrar sus innovaciones legislativas en la aplicación de enfoques
progresivos para la introducción de una institución integral de medidas
de derecho penal en relación con la responsabilidad de estas entidades.
Los mecanismos legales relevantes y los comentarios identicados
en la práctica de la Unión Europea y fundamentados por académicos
pueden implementarse en la legislación de Ucrania. En particular, se
proponen modicaciones a las normas que rigen el procedimiento para la
prevención efectiva de delitos ambientales por personas jurídicas. Parece
razonable introducir un análisis de seguimiento activo de las actividades
antropogénicas de las empresas y la creación de unidades especiales para
identicar violaciones relevantes. Los mecanismos para implementar el
conjunto de medidas preventivas y de seguimiento esbozadas en el artículo
forman el marco para futuras investigaciones cientícas.
Palabras clave: delito ambiental; responsabilidad penal; impacto
antropogénico; entidades legales; delito ambiental.
Introduction
In the 21st century, humanity has faced specic threats to the environment
due to air, water and soil pollution, declining species diversity and climate
change. These trends contribute to the creation of an appropriate legal
framework and strengthen liability for environmental damage (Sirant,
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V. Stratiy
Criminal Liability of Legal Entities for Environmental Crimes: Problems of Law Enforcement Practice
2020). Ecosystem protection has been the subject of numerous national,
supranational, and international legal norms. The global nature of the
environmental crisis necessitates high-quality reform of national legislation
in dierent countries and the strengthening of criminal liability for
environmental crimes. Moreover, the eects of the COVID-19 pandemic,
including global economic uncertainty, rising unemployment, trade
disruptions, and increased government incentives have increased the risk
of corporate crime as such (Kerrigan et al., 2021).
The world’s leading countries note the need to create a harmonized
legal, regulatory, methodological, and organizational framework that
meets the requirements of national and European environmental security
(Ladychenko et al., 2019). In recent decades, the international community
has stepped up its response to environmental challenges. The world
community pays special attention to the anthropogenic impact of economic
activity on national and transboundary ecosystems, which leads to
increased ecologization of production processes at the global and regional
levels (Lynch, 2020). Environmental management is becoming an integral
part of the activities of legal entities in dierent countries. Moreover, the
ecologization of production is recognized as the most important indicator
of progress in approaches to business development (Lynch et al., 2018).
However, the desire to increase prots sometimes leads to the choice of
the least environmentally friendly ways of doing business. This position
mostly leads to the commission of environmental crimes, the consequences
of which sometimes cause irreparable damage to the environment.
The concept of criminal liability of a legal entity is spreading around
the world. It can be argued that a legal entity may be liable for an act
committed by its ocials, agents or managers in the 21st century (Adua and
Abdul-Hamid, 2018). According to Art. 10 of the UN Convention against
Transnational Organized Crime, subject to compliance of a State party with
the principles of the law, the liability of legal entities may be criminal, civil
or administrative (United Nations Oce on Drugs and Crimes, 2000), but
this Convention also directly recommends to member states (including
Ukraine) to introduce criminal liability of legal entities for certain criminal
acts.
Environmental crime is gradually becoming a separate category of crime
in criminology (White, 2018). Denitions in this area remain unclear, and
the number of scientic approaches to the nature and content of liability
of legal entities is constantly growing. The study of environmental crimes
requires their comprehensive assessment, taking into account the global
consequences of environmental destruction. A clear understanding of
environmental crimes and bringing perpetrators to justice is not only
important, but also necessary in the realities of the global environmental
crisis. The need to legalize the results of environmental damage research
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remains a unique criminological problem (Nellemann, 2017). One of the
most eective tools for solving the outlined problems is the signing of
multilateral documents and, as a result, the intensication of partnerships
in the environmental eld. However, achieving a positive result even in the
context of strengthening interstate cooperation remains ineective. The
continuing anthropogenic impact on ecosystems has made environmental
security issues a particularly important item on the global political agenda.
In this context, lawmakers and practitioners increasingly support the
strengthening of criminal liability for environmental crimes (Pordo,
2021). Criminalization of environmental violations and the search for
the most eective sanctions become a vector of state activity for further
active participation in democratic world politics (Camproux Durène and
Jaworski, 2021). Environmental, social and governance issues increasingly
got to the top on the political agenda. This trend is also reected in the
activities of companies of all sizes and types around the world.
The study of the essence of environmental crime as an object of
criminological research, its main identifying features, provides an
opportunity to argue that today “environmental crime” should be considered
as a dangerous social phenomenon manifested in criminal behaviour
prohibited by criminal law, which poses a real danger to the environment
and/or its individual objects. Environmental crime is spreading rapidly,
threatening not only habitats and wildlife populations, but also entire
ecosystems, the environment, and even nancial systems. These crimes can
generate very high prots, carry a relatively low risk of detection, and are
mostly committed by organized criminal groups operating across internal
and external borders. The rise of environmental crime, together with its
transnational nature, requires a comprehensive and coordinated approach
by the legislature, law enforcement and the judiciary at the national level.
It can be stated that in today’s conditions the vector of centuries-old
international controversy has shifted from the question of whether or not
legal entities can be held criminally liable and focused its eorts on dening
and regulating the relevant liability, including the one in the environmental
sphere. The main reason for the introduction of criminal liability of legal
entities is the increase in the number and scale of crimes against the
environment committed on behalf of legal entities, at their expense or for
their benet (in their favour) by individuals. Environmental crimes are the
result of legal evolution, the result of processes of social transformation
in response to the public’s desire to have a green legal system focused on
eective protection (Lennan, 2021).
In Ukraine, the application of criminal legislation in the eld of
environmental protection has achieved positive results in recent years, but
has revealed many diculties, obstacles and gaps in practice. According
to the results of the analysis of judicial practice, it can be stated that
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Criminal Liability of Legal Entities for Environmental Crimes: Problems of Law Enforcement Practice
environmental crimes are the most common in the following areas: 1)
industrial production (the situation with regard to waste management
remains particularly critical); 2) the use of natural resources and minerals.
Deforestation in Ukraine, especially the destruction of the Carpathian
forests, remains an urgent problem; 3) hunting and trade in wild animals.
Illegal wildlife trade is still public in Ukraine. High economic benets
brought by trade in endangered species make it dicult to prevent and
combat illicit trade, etc. (Turlova, 2017:45). The institution of criminal
law measures in the eld of liability of legal entities has been introduced
in Ukraine. The amendments to the criminal legislation of Ukraine are a
novelty and, on the one hand, certainly have a positive impact on the rule
of law in the environmental, economic and international spheres, but the
introduction of this type of criminal liability requires more detailed study
and signicant changes in legislation to eliminate contradictions.
The aim of the article is a comparative analysis of problematic issues
and features of the process of criminal prosecution of legal entities for
environmental crimes in Ukraine and the European Union. The aim involved
the following research objectives: 1) generalize doctrinal approaches to the
essence and content of liability of legal entities for crimes committed in the
environmental sphere; 2) identify the features and problems of bringing
legal entities to justice for environmental crimes in Ukraine and in the
European Union; 3) establish the most eective directions of reforming
the criminal legislation of Ukraine in the studied area in the context of the
European positive practice of law enforcement.
1. Methods and Materials
The results of the study were obtained through the use of a set of practical
and methodological tools tested at each stage of scientic research. The
research procedure within the stated aim of the article is shown in Figure 1.
The methodological background of the study was a set of subject-
based principles, approaches and methods of cognition. The study used
a set of general scientic, philosophical and special methods that meet
the objectives of the article. General scientic methods of analysis and
synthesis, induction and deduction, comparison, abstraction, etc. were
used in the article.
The historical-legal method was used to determine the stages, analogues
and determinants of international cooperation in the eld of improving
the legal regulation of the studied institution. The problem-chronological
method allowed to structure the text of the research, empirical analysis
helped to compare the gradual expansion of the subjective composition of
criminal liability for environmental crimes in Ukraine and the European
Union.
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Figure 1: Abstract research design
Source: Authors
The leading practical method of scientic research was the method
of observation. This method allowed to reveal the following items from
the author’s point of view: the shortcomings of criminal liability of legal
entities for environmental crimes in the EU; identify the positive aspects
for Ukraine that can be taken into account in the law enforcement practice;
focus on the vectors of reforming the current legislation of the European
Union and Ukraine; determine the obligations of Ukraine in the adaptation
of the sustainable European practice of law enforcement, and especially
prevention. A special legal method of cognition — the comparative method
—was also used in the research. In particular, macro-comparisons were
used in the context of the importance of testing the latest foreign practices
of ecologization of the economic activity of legal entities in Ukraine.
The dialectical method was the leading method of scientic research,
which was based on two principles: 1) determinism (the principle of
conditionality and the relationship between dierent phenomena); 2)
historicism (any phenomenon is not static, it develops in time). The chosen
method allowed to focus the scientic research on the transformation of
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Criminal Liability of Legal Entities for Environmental Crimes: Problems of Law Enforcement Practice
scientic approaches to the essence and content of criminal liability of legal
entities for environmental crimes through the prism of society and qualitative
changes in modern realities of legal consciousness and law enforcement.
This method also allowed to determine the state, directions, and prospects
of development of scientic research and legislative developments in the
studied area. The above methods allowed to identify and take into account
all the factors and conditions that determined the evolution of criminal
liability of legal entities for environmental crimes in Ukraine and in the EU,
especially in the context of criminological and procedural aspects.
The research involved the 41 works of leading scholars of Ukraine and
the European Union, among which special attention was paid to scientic
research on the subject of the article, as well as the essence of criminal
liability of legal entities as such. The analysis of the legal regulation of the
European Union, its member states and Ukraine has become especially
important. Working with authentic texts and relevant statistics allowed to
form a comprehensive author’s idea of the subject of the article, and to oer
author’s reasonable proposals for legislative innovations.
2. Results
The world community recognizes that the protection of the environment,
the rational use of natural resources and environmental security are the key
to the existence of not only the people, the nation, but humanity as a whole.
That is why ensuring environmental safety and protecting the environment
are becoming priorities of state policy. The practice of combating
environmental crime in the territory of the European Union, including in
matters of bringing legal entities to justice, seems to be quite positive. The
adoption by the European Commission of the new European Green Deal, a
roadmap for ensuring the sustainability of the EU economy in all segments
of society (European Commission, 2021), deserves attention. In order to
comply with the provisions of this document and to combat environmental
crime, the European Commission adopted a number of proposals on July
14, 2021. In particular, the main vectors of the newly adopted documents
stipulate that EU policy on climate, energy, transport and taxation must
meet the requirements for reducing net greenhouse gas emissions by at
least 55% by 2030 compared to 1990 levels. The European Green Deal
was implemented because achieving this emission reduction over the next
decade is crucial for Europe to become the world’s rst climate-neutral
continent by 2050 (European Commission, 2021).
Criminal liability for environmental crimes has recently emerged in
the European Union. Directive 2008/99/EC on the protection of the
environment through criminal law was adopted on 24 October 2008.
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Member States were required to transpose the Directive into national law
by December 2010. The Directive aims to supplement the existing system
of administrative sanctions with criminal law sanctions to strengthen
compliance with environmental laws. Criminal penalties demonstrate
social disapproval of a qualitatively dierent nature from administrative
penalties or compensation mechanisms under civil law (Ocial Journal
of the European Union, 2008). It is signicant that, despite the fact that
thirteen years have passed since the adoption of the directive, the process of
its adaptation into the national legislation of the EU Member States cannot
be considered complete.
All Member States have provided for additional sanctions, such as the
obligation to compensate for the damage caused, the publication of a court
decision or the revocation of a certain permit. These sanctions can be very
useful in addition to traditional ones, such as nancial nes/penalties and
prison sentences. At the same time, the parallel application of additional
and basic sanctions is not ensured in Member States where courts do not
have the discretion to impose additional sanctions (European Commission,
2020). Most Member States provide for the criminal liability of legal
entities, with the exception of Bulgaria, Germany, Greece, Latvia and
Sweden. Although the most common form of criminal sanctions imposed
on legal entities is nancial sanctions, additional sanctions are applied
fragmentarily.
The criminal liability of corporations was enshrined in French law under
Article 121-2 of the French Penal Code (1994). Corporate criminal liability
was governed by the “specialty principle”: companies could be prosecuted
for specic oenses only if specically provided by law. From December 31,
2005, the corporation may be held liable for any criminal oense. However,
corporations can only be prosecuted for oenses committed by: “their bodies
or a representative”. Violations that can lead to prosecution of companies
must be committed “at their expense”. An action is considered to be directly
related to the company if it is “aimed at ensuring the organization, operation
or goals of the company”. Persons whose actions have led to the prosecution
of companies can also be prosecuted for the same crimes. These provisions
apply to foreign companies doing business in France, provided that they are
established as legal entities in accordance with French law.
Besides, the French Penal Code (1994) provides for the following
penalties that may be applied to a legal entity: ne (Articles 131-38),
conscation of property (Articles 131-21), liquidation of the legal entity
(Article 131-37, Article 131-39) (Legislationline, n. d.). The Finnish Criminal
Code (1889) also contains an example of an objective obligation in Section
9, Section 2, paragraph 1: a legal entity may be sentenced to a ne if it has
not shown due consideration in its activities and the precautions needed to
prevent the oense (Ministry of Justice of Finland, 2012).
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Despite the fact that the United Kingdom is no longer an EU member,
this country is eectively implementing the Directive. In particular, at the
legislative level, oenders continue to be prosecuted by imposing punitive
civil sanctions, the violation of which leads to criminal prosecution of
legal entities (Government of the United Kingdom, 2021). The law of this
country guarantees that employers or agents who have committed an
environmental crime are held liable. This law enforcement practice seems
to be quite eective.
It can be stated that the practical implementation of environmental
criminal law and its challenges have been the subject of numerous reports
by the national competent authorities of the EU member states. The analysis
of these documents allowed identifying the main shortcomings of criminal
liability of legal entities for environmental crimes in the European Union
(Figure 2).
Figure 2: The main shortcomings of criminal liability of legal
entities for environmental crimes in the European Union
Source: Authors
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It is worth noting that on January 29, 2021, Eurojust published a Report
on Casework on Environmental Crime (Eurojust’s, 2021). The Report
provides an overview of the legal and operational problems that arise in
such cases and builds on the experience gained in almost 60 cross-border
cases of environmental crimes that were referred to Eurojust between 2014
and 2018. The generalized positions of this document are mainly focused
on the representatives of the judiciary of the EU member states, which deal
with the problems of cross-border environmental crime. At the same time,
such a practice can be taken into account based on the results of adaptation
on the territory of Ukraine.
The most common types of environmental crimes in the European
Union include the following: 1) trade in waste; 2) trade in various species
of wildlife; 3) air pollution; 4) illegal trade in dangerous chemicals; 5)
dangerous contamination of food; 6) illegal construction works and
related issues. Besides, environmental crimes are often accompanied by
other forms of crime, such as organized crime, fraud, forgery and money
laundering. In addition to these data, the Report also identies a number of
legal and operational issues in the ght against environmental crime, such
as insucient specialized knowledge and practical experience, dierent
legislative and investigative approaches in dierent jurisdictions, and the
multidisciplinary nature of environmental investigations (led by various
specialized national administrative bodies).
The analysis of the generalizations of the European Union practice set
out in the Report allowed singling out the positive aspects for Ukraine
that can be taken into account in law enforcement practice: 1) competent
administrative, law enforcement and judicial bodies should strive
for multidisciplinary cooperation; 2) environmental crime should be
recognized as organized crime; 3) it is appropriate to use international
instruments of coordination and cooperation, such as joint investigation
teams and the involvement of international experts at an early stage in
the investigation of complex cross-border environmental crimes; 4) key
concepts of environmental criminal law need further harmonization and
more consistent interpretation in the context of EU practice; 5) penalties
for committing environmental crimes should be harsher and become
preventive.
In turn, the European Union seeks to promote a high level of
environmental protection on its territory and to do its utmost to prevent
environmental damage in third countries caused by companies located
in EU Member States. The European Parliament has expressed concern
about the wide expansion of environmental crime, as evidenced by the
combined assessments of the OECD, the United Nations Oce on Drugs
and Crime (UNODC), the United Nations Environment Program (UNEP)
and Interpol on monetary assessments of all environmental crime. Europol
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Criminal Liability of Legal Entities for Environmental Crimes: Problems of Law Enforcement Practice
recognizes that this is the fourth largest category of international crime,
which is directly or indirectly related to transnational organized crime and
corruption (Europol, 2020:9).
At the same time, there is currently no EU legal document that
addresses the possibility of prosecuting European companies abroad for
environmental crimes or activities that cause environmental damage. It
seems necessary to encourage parent companies to take sustainable and
responsible approaches to cooperation with third countries in accordance
with international standards in the eld of human rights and the
environment, as well as to refrain from adopting investment strategies that
directly lead to dangerous consequences.
In this context, the adoption of the European Parliament Resolution
on the liability of companies for environmental damage on 21 May 2021
in Brussels (European Parliament, 2021) became quite signicant. In
particular, Europol declared in the document the need to: 1) develop a
harmonized classication of environmental crimes; 2) the introduction of
much more timely and stringent regulatory measures in the Member States;
3) introduction of a comprehensive monitoring system to ensure compliance
with environmental legislation; 4) adoption of a general framework directive
on environmental oenses, eective and proportionate sanctions (dening
the conduct, nature of oenses, types of oenses, reparation regimes,
remedial measures and minimum sanctions, including joint liability of legal
entities and individuals); 5) introduction of a secondary liability regime,
namely parental and chain liability for damage caused to human health
and the environment; 6) the urgency of assessing the current situation with
the liability of subsidiaries operating outside the EU, including possible
improvements in cases of environmental damage, etc.
It can be stated that comprehensive and eective precautionary measures,
deterrent and proportional criminal sanctions are important deterrents
against environmental damage in the EU. At the same time, the level of
detection, investigation, prosecution, and conviction for environmental
crime remains relatively low. The European Union’s position in the area
under study remains unchanged — according to the polluter pays principle,
companies must bear the full cost of the environmental damage they have
directly caused to encourage them to internalize environmental factors and
avoid external costs.
As part of the need to comply with international legal requirements for
environmental protection and criminalization of illegal acts in this area,
Ukraine signed the Convention on Environmental Protection by means
of criminal law (Verkhovna Rada of Ukraine, 1998). The provisions of the
Convention stipulate the types of intentional criminal oenses or illegal acts
committed through negligence (including serious). Ratication of this act
was a driving factor in the further introduction of criminal liability of legal
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entities for environmental crimes and the transformation of the national
legal eld.
At the same time, the level of environmental crime in Ukraine is
gradually increasing, as evidenced by statistics (State Statistics Service of
Ukraine, 2021) shown in Figure 3.
Figure 3: The share of environmental crime in the overall
structure of crime in Ukraine for the period from 2002 to 2020
Source: Authors
This chart shows a gradual increase in environmental crime in historical
perspective. Unfortunately, not all law enforcement reports, and statistical
tables provide information on the commission of criminal oenses in the
study area by legal entities, which allows forming an objective picture of
the subject composition. At the same time, it is safe to say that the lack of
comprehensive monitoring of environmental crimes is a negative factor in
reforming law enforcement practices.
Ukraine has an institution of criminal law measures (quasi-criminal
liability) regarding the liability of legal entities (Verkhovna Rada of
Ukraine, 2013). At the same time, the Civil Code of Ukraine (Verkhovna
Rada of Ukraine, 2003) denes a legal entity of private or public law as an
organization established and registered in the manner prescribed by law,
endowed with civil capacity and capacity to be a party in court.
At the same time, the Criminal Code of Ukraine (Verkhovna Rada
of Ukraine, 2001) was supplemented by Section XIV-1 “Criminal Law
Measures Concerning Legal Entities”, amending the Criminal Procedure
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Code of Ukraine and other regulatory acts. It can be stated that it is the rst
time in Ukraine that criminal law measures were used against a legal entity,
provided that the authorized person committed an oense on behalf of and
in the interests of the legal entity.
The legislator determined that the subjects of such crimes are
authorized persons of a legal entity who have committed criminal oenses
under the relevant articles of the Criminal Code of Ukraine: violation of
environmental safety rules (Article 236); failure to take measures to
eliminate the consequences of environmental pollution (Article 237);
pollution or damage to land (Article 239); illegal seizure of water fund
lands on an especially large scale (Article 2392); violation of the rules of
protection or use of subsoil, illegal extraction of minerals (Article 240); air
pollution (Article 241) and others. It should be emphasized that Section
VIII of the Criminal Code of Ukraine deals with environmental crimes.
Addressing the peculiarities of criminal liability of legal entities for
environmental crimes in Ukraine, it is worth emphasizing that from the
point of view of law enforcement practice, the nancial form of liability is
legalized and widespread — the application of penalties. In practice, the
responsibility for illegal actions of a legal entity rests with its authorized
persons. According to Article 96 of the Criminal Code of Ukraine authorized
persons of a legal entity means ocials of a legal entity, as well as other
persons who have the right to act on behalf of legal entity in accordance with
the law, constituent documents of a legal entity or contractual relationship.
In particular, such crimes are committed directly in the interests of legal
entities and lead either to improper benet or to the creation of appropriate
conditions for such benet for the legal entity.
The legislator also considers it a crime to commit actions in the eld of
ecology aimed at avoiding the liability enshrined in law. Such criminal law
measures as nes, conscation of property and liquidation may be applied
to legal entities.
In this case, the ne and liquidation are used as the main types of
measures, while conscation — only as an additional one. It should be
noted that in 2020 the Resolution of the Verkhovna Rada of Ukraine
adopted Recommendations of Parliamentary Hearings on Priorities of
Environmental Policy of the Verkhovna Rada of Ukraine for the Next
Five Years (Verkhovna Rada of Ukraine, 2020), which fully correlate
with the Law of Ukraine No. 2697-VIII of 28.02.2019 “On the Basic
Principles (Strategy) of the State Environmental Policy of Ukraine 2030”
(Verkhovna Rada of Ukraine, 2019). These Recommendations provide
for vectors of transformation of approaches to criminal liability of legal
entities for environmental crimes, in particular, identifying not only the
strengthening of responsibility, but also prevention (Figure 4).
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Figure 4: Priorities of the environmental policy of the
Verkhovna Rada of Ukraine for the next ve years (in the
context of criminal liability of legal entities)
It can be noted that Ukraine has chosen the path by analogy with
the legalization of criminal liability of legal entities for environmental
crimes in the European Union. This approach of the legislator seems
extremely progressive and deserves support. However, despite the fact that
environmental issues are regulated by more than 40 laws and hundreds
of bylaws in Ukraine, the system of liability for environmental crimes
remains weak and inecient. Low environmental taxes do not contribute
to the implementation of the polluter pays principle. Moreover, the need to
stimulate the implementation of measures for environmental modernization
of enterprises and strengthen their responsibility remains a declarative
thesis. Therefore, the criminal liability of legal entities for committing
environmental crimes remains quite controversial, requires more detailed
study by the legislator, and the introduction of eective mechanisms for its
prevention and overcoming in the context of foreign experience.
3. Discussion
The study showed that the issue of criminal liability of legal entities for
environmental crimes in accordance with the Criminal Code of Ukraine
cannot be considered denitively resolved. Taking into account the
criminal law policy of the state, the postulates of legal theory and practice,
the priorities of sustainable development and environmental protection —
legal approaches to the essence of the institution of responsibility of these
entities should be reformed. When a legal entity is not held liable for its
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actions, it will aect both the competitiveness of the company itself and the
environmental losses for the state in the future (Lubis et al., 2021). Scholars
emphasize that if companies avoid responsibility for environmental crimes,
law enforcement agencies will be considered incompetent because they will
not comply with the rules established by law (Kisliy et al., 2021; Mackie,
2020). In this case, it can be argued about the declarative legality of the
inevitability of punishment.
It also seems quite balanced for the state to establish comprehensive
programmes with the allocation of adequate nancial and human resources
to prevent, investigate and prosecute legal entities for environmental crimes.
The role of civil society institutions in the ght against environmental
crime must also be qualitatively revised. Faure (2020) supported public
involvement and raising legal awareness and activity of the population on
identifying legal entities guilty of environmental crimes.
The research substantiated the need to improve the skills of state bodies,
including prosecutors and judges, in order to more eectively prosecute and
sanction environmental crime. It is also proposed to create a specialized
unit in the national police of Ukraine to investigate environmental crimes.
Husarov (2019) supported the reasonability of creating a specialized
environmental police unit in Ukraine in 2019. The scholar substantiated
the need to create environmental police units with a clear denition of
tasks, functions, competencies and powers at the legislative level. It seems
possible to gradually expand the powers, as well as administrative and
jurisdictional activities in the eld of environmental protection of regional
units of the National Police (Kazanchuk, 2017:57).
There are current discussions on the vectors of legislative reforms in
terms of comprehensive and interdisciplinary analysis with the involvement
of experts in various elds of science (Roef, 2019), complemented by a
comparative study of Ukrainian and foreign criminal law. Gavrilishin and
Kozyreva (2018) supported the reasonability of legislative innovations. The
scholars stated that the criminal liability of legal entities for environmental
crimes has led to diculties in law enforcement practice, which is currently
undergoing reforms and qualitative changes in the institutions of the
general and special parts of the Criminal Code of Ukraine. According to
Malanchuk (2020), it is necessary to supplement the system of penalties
for legal entities by applying judicial supervision over the activities of legal
entities, and to provide a specic term of appropriate supervision.
The development of a set of preventive measures and concepts
of internal self-discipline in the course of business activities by legal
entities seems to be quite balanced. In this context, the main tasks of
combating environmental crime are the following: 1) the creation of a
system of appropriate information and analytical support for combating
environmental crime in Ukraine based on the results of the analysis of
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reliable information about its condition and determinants; 2) development
of criteria and constant analysis of monitoring data on the state of the
environment; 3) minimization of the impact of criminogenic factors and
practical possibilities of committing environmental crimes by legal entities.
The introduction of requirements for companies to develop compliance
programmes at the legislative level should encourage companies to take
proactive measures to prevent internal environmental risks (Dongmei,
2020). Approbation of this approach will allow increasing the eectiveness
of punishment of legal entities and will correlate with the best European
practices.
Moreover, a corporation that has taken appropriate steps to try to
prevent wrongdoing should not be punished simply because the individual
(the person in charge of the company) acted completely contrary to the
corporate approach (Lennan, 2021). This should be recognized in any
approach to corporate criminal liability for environmental crimes. In this
sense, the strengthening of global law enforcement means that companies
must be aware of the risks of law enforcement (Hamid et al., 2020).
Timely self-assessment of environmental damage by legal entities remains
a key step towards preserving the environment, minimizing the negative
consequences of national and global environmental nature, and avoiding
criminal liability.
Conclusions
In modern conditions, the idea of criminal liability of legal entities for
environmental crimes nds a signicant number of supporters in dierent
countries under the inuence of various criminal law doctrines. Both
national and international legal regulation in this area is undergoing constant
changes, taking into account the transformation of the environment,
anthropogenic impact and the peculiarities of the investigation of this
type of crime. Criminal liability of legal entities in general, and liability for
environmental crimes in particular, remains the subject of lively discussions
in scientic schools of dierent countries. At the same time, current trends
towards the gradual destruction of entire ecosystems by economic activities
necessitate strengthening the responsibility of these perpetrators around
the world.
The content of criminal liability of the legal entity of the subjects
under research is currently being transformed. In most EU member states
that support a similar model of criminal prosecution to Ukraine, such
types as personal liability and liability of a legal entity for environmental
crimes coexist, not replacing or excluding each other. At the same time,
the study revealed the shortcomings of criminal liability of legal entities
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for environmental crimes in the territory of the EU Member States. A
comparative analysis of law enforcement practices allowed adapting the
recommendations of the European Parliament to the vectors of reforming
Ukraine’s national legislation in this area. At the same time, the eective
application of international regulatory, legal, and institutional tools
requires the development and maintenance of the proper functioning of
relevant national systems, an extended work at the national level.
The study resulted in a number of priority measures proposed
to minimize the manifestations of criminal encroachments on the
environment by legal entities in Ukraine. The need of internal corporate
assessment of environmental risks of economic activity by legal entities as
the most eective prevention tools is substantiated. At the same time, the
results of approbation of such practice by Ukrainian enterprises will need
further scientic analysis, especially in combination with the statistics of
environmental crime in the country. Further research on the selected topic
will also be based on the current state of fullment of Ukraine’s international
legal obligations on the comprehensive ecologization of production.
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