Environmental Reviews and Case Studies: Transfer or not Transfer? It is a Question: The Challenges to and Solutions for the Transfer Procedure of Suspected Environmental Pollution Criminal Cases

Abstract

Serious environmental pollution incidents happen in China every year. However, only a few of them have been filed as environmental pollution criminal cases. We argue in this paper that the main reason is because the environmental administrative agencies often refuse to transfer the suspected environmental pollution criminal cases to the judicial authorities. Therefore, it's critical to better supervise the transfer of cases from the environmental administrative agencies, in order to ensure the implementation of the criminal laws and regulations, as well as to pressing criminal charges on the suspects instead of having them get away with administrative penalties. The supervision mechanisms include at least the interior supervision by other administrative agencies and the exterior supervision by the general public. An effectively functioning environmental criminal law system is very important for environmental protection and rule of law in China.

Notes

Notes

1. However, Article 9 of Constitution of China provides that “All mineral resources, waters, forests, mountains, grasslands, unreclaimed land, beaches and other natural resources are owned by the state… with the exception of the forests, mountains, grasslands, unreclaimed land and beaches that are owned by collectives in accordance with the law,” and Article 3 of Protection of Wildlife Act provides that “Wildlife resources shall be owned by the state.” That means any pollution that damages biological interest could be deemed as infringement on the property of the state—the “public property.”

2. “Whoever, in violation of the state provisions, discharges, dumps or disposes of any radioactive waste, any waste containing pathogens of any infectious disease, any poisonous substance or any other hazardous substance, which has caused serious environmental pollution, shall be sentenced to imprisonment of not more than 3 years or criminal detention and/or a fine; or if there are especially serious consequences, be sentenced to imprisonment of not less than 3 years but not more than 7 years and a fine” (Standing Committee of the National People's Congress, 2011).

3. China Environmental Status Bulletin has published “number of criminal cases of serious environmental pollution incidents decided by courts (yearly)” since 2001. The National Environmental Statistics Bulletin has published “number of serious or extraordinarily significant environmental pollution incidents (yearly)” since 2002 and “number of unexpected environmental pollution incidents caused by enterprise pollution discharge (yearly)” since 2006 (Ministry of Environmental Protection 2002–2010 a and b). Since the Ministry of Environmental Protection of China had not published the China Environmental Status Bulletin of 2011 by March 6, 2013, this article selected the statistics from 2002 to 2010.

4. “Where any entity or individual commits a violation against management of public security, it/he shall be imposed on a punishment in respect to administration of public security.”(Article 90) The “punishment in respect to administration of public security” includes administrative detention (Standing Committee of the NPC, 2008).

5. “The maximum time period for the concurrently executed punishments as administrative detention shall not exceed 20 days.” (Article 16, the Public Security Administration Punishments Act) (Standing Committee of the NPC, 2012).

6. On July 3, 2010, a leak from a wastewater pond at Zijin Copper Mine of Zijin Mining Group sent about 9,100 cubic meters of acidic, copper-laden water into the Ting River, causing extraordinarily serious water pollution. The direct economic loss is ¥31.87 million RMB. The Zijin Mining Group was then fined of ¥9.56 million RMB according to the “30%” provision. Additionally, some responsible persons were charged of crime of serious environmental pollution incidents.

7. “Where a people's procuratorate deems that a public security authority fails to open a case that shall be otherwise opened for criminal investigation, or a victim expresses to a people's procuratorate the opinion that a public security authority fails to open a case that shall be otherwise opened for criminal investigation, the people's procuratorate shall require the public security authority to state the reasons for not opening a case. If the people's procuratorate deems that the reasons for not opening a case provided by the public security authority are unfounded, it shall notify the public security authority to open a case, and, after receiving the notice, the public security authority shall open a case.” (Article 111, Criminal Procedural Act; NPC 2012)

8. Actually, in 2011, in the light that “in certain fields of administrative enforcement, the problems of ‘failure to transfer cases’, ‘difficulty in transferring cases’, and ‘substitution of fines for criminal punishments’ are still prominent,” the General Office of the CPC Central Committee and the General Office of the State Council jointly issued another Decision on Strengthening the linkage between administrative enforcement and criminal judicial procedure. (CPC, 2011)

9. “National security authorities shall, in accordance with law, handle criminal cases regarding compromising national security and perform the same functions as those of public security authorities” (Article 4 of Criminal Procedural Act; NPC, 2012) “Investigation of criminal cases shall be conducted by public security authorities, except as otherwise provided for by law. Cases regarding a crime of embezzlement or bribery, malfeasance by a state employee, or violation of a citizen's personal rights, such as false imprisonment, extortion of confessions by torture, circumvention for retaliation, or illegal search, or a citizen's democratic rights by an employee of a government authority by taking advantage of his or her functions shall be opened and investigated by people's procuratorates.” (Article 18 of Criminal Procedural Act)

“The security departments of the armed forces shall have the authority to investigate criminal cases that occur within the armed forces. Crimes committed by convicts within a prison shall be investigated by the prison.” (Article 290 of Criminal Procedural Act)

10. Since January 1, 2003, The Investigation Bureau of Smuggling Crimes has been renamed as Anti-Smuggling Bureau. All the anti-smuggling crime departments were renamed accordingly nationwide.