Carole M. Billiet, Dansen op één voet? Publiekrechtelijke sanctionering van biodiversiteitsmisdrijven en het maatschappelijk middenveld: een systeemanalyse [Dancing on one foot? Public law sanctioning of biodiversity crimes and civil society: a systemic analysis], in Carole M. Billiet (ed.), Biodiversiteitsmisdrijven in eigen land: in Vlaamse savannes en Waalse regenwouden – La criminalité en matière de biodiversité chez nous: des savanes flamandes et forêts pluviales wallonnes, Brugge, die Keure, 2018, 439-473
Biodiversity protection is one of the key areas of involvement of environmental NGO’s (ENGO’s). This paper researches the position of ENGO’s in the public law enforcement systems introduced in the Flemish and Walloon Regions in 2009 to sanction environmental crimes, including biodiversity crimes. These systems are characterized by a well-organized coexistence of a criminal sanctioning track with an administrative sanctioning track and by the availability of punitive as well as remedial sanctioning tools in both tracks.
The position of ENGO’s in the criminal sanctioning track has been improving dramatically recently. A 2013 judgment of the Belgian Supreme Court put an end to standing difficulties as a civil party to the trial. A 2016 judgment of the Constitutional Court established the possibility to award them, next to material damages, moral damages exceeding 1 symbolic EUR. Additionally, victim position in the pre-trial and trial stage of criminal proceeding, improved discretely in many aspects between 1998 and 2012, benefitting NGO’s too. The impact of these radical improvements, however, is limited because of the low prosecution rate of biodiversity crimes: 2,5 à 3,5% of all cases reaching the prosecutors’ offices (even less than environmental crimes in general: 4 to 5%).
In the administrative sanctioning track we observe a sharp rise of fining decisions: since 2009, administrative fining has increased the punishment of detected biodiversity crimes by more than 20%, a manifold of the fraction punished by the criminal courts. ENGO’s, however, get no recognition in administrative fining procedures. There is no niche to incorporate their material and moral damages in the sanctioning decision. They cannot influence the offender’s decision to offend (or respect) the law.
The paper concludes with reflections and questions aiming at policy development.
Full publication (Dutch) here.