DRAFT LAW NO. 349 /X

CHANGES THE CRIMINAL CODE IN ENVIRONMENTAL MATTERS

Justification Note

Despite the great development that our legal planning in

environmental matter has known in recent years, with the publication of a myriad of

diplomas, legal and regulatory, and transposition of Community Directives,

corresponding to a growing recognition of the importance of the environment in our

daily, in the quality of life and safety of populations and in development

sustainable of our society, the truth is that in the field of law

Penal, the Environment has been absent.

With done, notwithstanding we have had for many years, inserted into the Code

Penal, articles enshrining types of crime in environmental matters, as is the case with

current articles 278º (Damage against nature) and 279º (Pollution), the truth is that not

we have no judicial tradition, nor of relative jurisprudential contributions

to these criminal wrongdoers, for the simple reason that these standards have not known

any practical application, in our courts, constituting, at this time, mere

ghosts of the right, like any norm that has never been applied.

This situation, absolutely caricata, of complete absence, in practice, of protection

and of effective penal tutelage regarding environmental goods that show worthy of that

tutelage, radica, certainly, from the very soon, in the natural difficulties with which the

Prosecutor's Office and the Criminal Police Bodies, not only because of a lack of means and of

training or preparation in this area, but also by absence of experience and

tradition of research and promotion of the criminal types concerned, but before that by the

inadequacies, already recognized and denounced by many, of the standards themselves in this

moment beholdant.

In that sense, the Criminal Reform's own Mission Unit, acknowledged the

need to make changes, in particular to those referred to in Articles 278º and 279º,

by way of overcoming some of the peies that are currently responsible for the total

ineffectiveness of these normatives. Also the Quercus-National Association of

Conservation of Nature, came to present its proposals in this framework, containing

interesting solutions and that can contribute to substantially improving the current

law.

The Parliamentary Group "The Greens", having received the Quercus at a hearing, and

recognizing the added value of their proposals, made available to work on the basis of

in them and to present a Draft Law through which of them would be bearer in

seat of the parliamentary legislative process.

In that sense, the deputies of the Ecologist Party "The Greens", below

signed, present the following Draft Law aiming to amend the Criminal Code in

environmental matter:

Article 1º

Articles 278º and 279º of the Criminal Code are amended to have the

following wording:

" Article 278º

(Damages against nature)

1-Who, not observing legal, regulatory or constant provisions of treaty

or international convention, or obligations imposed by competent authority on

compliance with those provisions:

a) Eliminate copies of protected fauna or flora in significant numbers;

b) Eliminate one or more copies of threatened protected species or

endemic;

(c) destroy priority or classified natural habitat;

d) Introduce exotic species in habitat;

(e) destroy or contaminate, with irreversible or long-lasting character,

aquifers or areas of aquifer refills, geomonuments and geologically zones

active of obvious geological risk;

is punished with imprisonment up to 3 years or with penalty of a fine of up to 600 days.

2-(previous number 3)

3-Who marketing or detain for exemplary marketing of fauna or flora of

protected species, either live or dead, as well as any part or product obtained from

of that, is punished with imprisonment for up to 1 year or penalty of fine up to 240 days;

4-In the case provided for in the preceding paragraph, if it is a threatened protected species, the

agent will be punished with imprisonment for up to 18 months or penalty of a fine of up to 300 days;

5-For the purposes of the previous figures it is understood by protected protected species

those who possess the status of Vulnerable Species, Species in Danger, Species

Critically in Perigo or Priority Species.

Article 279º

(Pollution)

1-Who, not observing legal, regulatory or constant provisions of treaty

or international convention, or obligations imposed by the competent authority on

compliance with those provisions:

a) Poluir inland waters or navies, part of the soil or subsoil of the earth crusta or,

in any way, degrade their qualities;

b) (...)

c) (...)

in serious form, is punished with imprisonment up to 3 years or with penalty of a fine of up to 600

days.

2-If the conduct referred to in paragraph 1 is practiced by negligence, the agent is punished with

prison sentence up to 1 year or with penalty of fine.

3-For the purposes of the previous figures, the agent acts in a serious manner when,

polluting in a continual or punctual manner, provoke or create danger of provoking:

a) A strong reduction of biodiversity at the local level;

b) A strong reduction in population herds by making it perilt to its

existence locally;

c) An alteration of the abiotic factors of the medium, bringing into question the capacity

of regeneration of the local ecological system; or

d) A dissemination of microorganism or harmful substance to the body

or health of people.

Palace of S. Bento, February 13, 2007

The Deputies,

Francisco Madeira Lopes

Heloísa Apollonia