Billiet & Broeckhoven, 2011

Carole M. Billiet & Nicky Broeckhoven, De milieustrafrechter en toekomstbeveiliging: praktijkprofiel van het exploitatieverbod [Environmental criminal judges safeguarding the future: an empirical profile of the exploitation cessation order], Nullum Crimen 2011, 101-126

Since May 1st 2009, article 16.6.5 of the Flemish Environmental Policy Decree gives criminal courts judging environmental offences the competence to order the cessation of the operation of a plant for safety reasons. The aforementioned provision is a near to literal copy of article 39 §2 Flemish Environmental Permit Decree, a provision that, in between its entry into force in September 1991 and its abrogation in May 2009, was applied for nearly two decades. The doctrine that has been studying the now abrogated competence is fairly scarce and does barely touch practice. Analyzing the environmental crime case law in the years 2003-2006 (2007) from the judicial resort of the Court of Appeal in Gent (1034 first instance judgments and 122 appeal judgments), the authors check to what extent the cessation order has been applied in practice and identify problems and possibilities for improvement. The idea is to provide a support for the use of the competence and to formulate suggestions for a better legislative design in view of the legislative evaluation that will happen in May 2012. The study documents a number of interpretative issues and empirical facts unknown or little known previously. The safety measure appears to have been used in 5% of all cases but exclusively by the courts of first instance of Dendermonde and Gent (not Brugge, Ieper, Kortrijk, Oudenaarde en Veurne) and some subsequent appeal cases. For a lawful application of the competence mainly the requirement of an actual safety problem, the understanding of the hearing duty, and the formulation of the duration of the measure appear to need improvement. For an effective use of the safety measure, agreements between the prosecutor’s office and the bench regarding the backing of the measure by a penalty payment are most important.

Full publication (Dutch) here.