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DRAFT law No. 349/X changes the ENVIRONMENTAL PENAL CODE Statement despite the great development that our legal system on environmental issues met 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 lives, on the quality of life and security of the people and the sustainable development of our society the truth is that when it comes to Criminal law, the environment has been absent.
With done, notwithstanding that we have for many years, inserted in the criminal code, articles by making environmental crime types, as in the case of existing articles 278º (damage against nature) and 279º (pollution), the truth is that we do not have any judicial tradition, or contributions related illicit criminal jurisprudence, for the simple reason that these standards have not known any practical application in our courts, and in this moment, mere ghosts of the right, like any standard that has never been applied.
This situation, absolutely ridiculous, to total absence, in practice, the protection and effective criminal protection for environmental goods deemed worthy of this tutelage, lies, certainly, of course, the natural difficulties will prosecutors and the Criminal Police Bodies, not only by lack of resources and training or preparation in this area, but also by lack of experience and tradition of research and promotion of criminal types concerned but before that the shortcomings, already recognized and denounced by many of own standards at present in force.
In this sense, the very mission of the Penal Reform Unit, recognized the need to introduce changes, in particular to articles 278º and 279º, in order to overcome some of the minds which are currently responsible for the total ineffectiveness of these normative. Also the Quercus-National Association of conservation of nature, came to present its proposals in this area, containing interesting solutions and that can contribute to substantially improve the current law.
The Group "Os Verdes", having received the Quercus in audience, and recognizing the added value of its proposals, released to work on the basis of the same and introduce a Bill through which of them would be carrier in the parliamentary legislative procedure.
In this regard, members of the ecologist party "the Greens", the undersigned, present the following draft Bill aiming to change the environmental Penal Code: article 1 are amended articles 278º and 279º of the Penal Code which are replaced by the following: "Article 278º (damage against nature) 1-Who, not observing legal provisions, regulations or of treaty or International Convention , or obligations imposed by the competent authority in accordance with those provisions: a) Eliminate copies of fauna or flora protected in significant number; b) Eliminate one or more specimens of protected species threatened or endemic; c) destroy natural habitat priority or rank; d) Introduce exotic species into habitat; and) destroy or contaminate, with irreversible or long-term, aquifers or aquifers, recharge zones and geologically active areas of geomonuments evident geological risk; is punished with imprisonment up to 3 years or with a fine penalty up to 600 days. 2-(previous number 3) 3 – Who sell or holds for marketing copy of fauna or flora of protected species, alive or dead, as well as any part or product obtained from that, is punished with imprisonment up to 1 year or a fine penalty up to 240 days; 4-in the case referred to in the preceding paragraph, in the case of protected species threatened, the agent shall be punished with imprisonment up to 18 months or fine penalty up to 300 days; 5-for the purposes of the preceding paragraphs the term protected species threatened those who possess the status of Vulnerable Species, endangered species, Species critically endangered or Priority Species.
Article 279º (pollution) 1-Who, not observing legal provisions, regulations or of treaty or International Convention, or obligations imposed by the competent authority in accordance with those provisions: a) Pollute inland waterways or marine, part of the soil or subsoil of the Earth's crust or, in any way, degrade its qualities; b) (...) c) (...) of severe form, is punished with imprisonment up to 3 years or with a fine penalty up to 600 days. 2-If the conduct referred to in paragraph 1 is committed by negligence, the agent is punished with imprisonment up to 1 year or with a fine penalty. 3-for the purposes of the preceding paragraphs, the agent acts so severe when, polluting continuously or on time, or create risk of cause: a) a strong reduction of biodiversity at the local level; b) A strong reduction of the population doing threaten your existence locally; c) a change of abiotic factors of the medium, calling into question the ability of local ecological system regeneration; or d) A spread of microorganism or substance harmful to the body or health of persons.
Palácio de s. Bento, February 13 2007 Members, Francisco Madeira Lopes Heloísa Apolónia
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