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CAPACITY BUILDING AND TRAINING ON ENVIRONMENTAL LAW

Symposium of Judges and Prosecutors of Latin America. Enforcement and Compliance with Environmental Law

 

DECLARATION OF BUENOS AIRES

We, Judges, Prosecutors and Directors of Law Schools from throughout Latin America, having been summoned by personal invitation to participate in the Symposium of Judges and Prosecutors of Latin America - Environmental Compliance and Enforcement - by the Steering Committee, composed of an Executive Group that is composed of the Regional Office for Latin America and the Caribbean of the United Nations Environment Program (UNEP/ROLAC), the World Bank Institute, the Environment and Natural Resources Foundation from Argentina (FARN), the Law Institute for a Green Planet from Brazil, and an Advisory Group composed of the International Network for Environmental Compliance and Enforcement (INECE), the World Conservation Union (IUCN), the Economic Commission for Latin America and the Caribbean of the United Nations (ECLAC), the District Attorneys' Office for the Environment, Chile (FIMA), the Institute of Environmental Law and Economy, Paraguay (IDEA) and the Peruvian Environmental Law Society (SPDA); held in the City of Buenos Aires on 23rd and 24th September 2003, upon finalizing this Symposium, have decided to issue the following

Declaration

1. Convinced of the role we judges and prosecutors have to play in the effective enforcement of Environmental Law in the attainment of sustainable development, and considering the antecedents clearly embodied in the Mexico Declaration of 2000 and in the 2002 Johannesburg Declaration, we have come to a series of conclusions and recommendations which we consider fundamental for our region in issues regarding the training of judges and prosecutors, justice organization and environmental jurisdiction, the relationship between the Judiciary and the other branches of State and civil society, an assessment of the enforcement of environmental regulations by the Judicial Branch and prosecutors, constitutional proceedings, civil action, environmental damage and environmental penal action.

2. The exchange of experiences has revealed a general lack of appropriate motivation on the part of judges and prosecutors concerning environmental matters. We thus propose two main strategies of action: a training strategy and a strategy of incidence.

3. Training Strategy. Convinced of the need to encourage the training and participation of judges and prosecutors in environmental issues, we propose to:

  • Encourage surveys or studies of opinion that will identify concrete necessities as outlined by judges and prosecutors.
  • Promote public awareness campaigns on environmental issues.
  • Incorporate environmental issues into the training programs for judges and prosecutors in the corresponding national and local organisms.
  • Direct regional training through the Ibero- American Network of Law Schools.
  • Encourage training on environmental issues by means of incentives.
  • Write, promote and use handbooks (environmental digests) which include the basic principles of environmental law as training tools, alongside a compendium of local environmental laws and the principal jurisprudence in this issue.
  • Promote spaces for the exchange of experiences.
  • Optimize the use of resources, which are of generally limited availability. We therefore plan to seek resources through international cooperation, and appeal to the transversality of the issue by bringing environmental matters into the curricula of Law Schools.
  • Move towards the institutionalization of the environmental training received by judges and prosecutors, bearing in mind the significance of implementing assessment and monitoring.
  • Include auxiliary staff from the courts, Public Ministry, and Public Administration in the training programs

4. As part of the incidence strategy we commit ourselves to the following:

In general, to circulate this Declaration in each of our areas of action and participation.

In particular, to favor the presentation of the Declaration at the Summit of Supreme Courts of Justice and High Courts, the Judiciary Councils' Meeting, and the Annual Assembly of the Ibero- American Association of Public Ministries.

5. Regarding the organization of justice and environmental competences:

We consider that all magistrates should take either immediate and necessary measures to protect the environment and persons, or all conducive precautionary measures, even when debate about competence exists.

It is necessary to clarify the problems of competence posed by the lack of regulatory definition and interpretation by the High Courts, in order to prevent serious limitations to citizens' rights of access to justice.

We encourage the creation of special competences regarding environmental, civil and penal issues in the various jurisdictional orders. Nevertheless, and until such time as it can be put into operation, gradual or intermediate solutions are advisable.

We advocate the creation of environmental courts at both local and supranational level in order to strengthen the idea of the environment as a fundamental human right.

We consider it necessary to create indicators related to the performance of justice in order to guarantee the creation of supranational environmental courts.

6. After the shared experiences and the common difficulties identified concerning the coordination and interaction between the Legislative, Executive and Judicial Branches, we draw attention to the need to achieve specific results in certain areas, namely:

We recognize that it is an essential requirement to generate and systematize information on environmental development, compliance and enforcement, guaranteeing free access.

We encourage permanent communication between the Legislative, Executive and Judicial Branch regarding their actions in issues of environmental development, compliance and enforcement. We specifically propose as a possible starting point, the exchange of experiences and information through national and regional networks.

We urge the identification of technical units to support the organisms entrusted with environmental development, compliance and enforcement.

We understand that the use of resources destined to environmental development, compliance and enforcement must be optimized.

Therefore, we exhort the Legislative, Executive and Judicial Branches to promote permanent inter-institutional dialogue with a view to improved environmental development, compliance and enforcement.

7. Regarding the assessment of environmental compliance and enforcement by the Judicial Branch and the Public Ministry:

We urge the implementation of serious policies to secure environmental enforcement and compliance in our countries.

We believe that the question of indicators of efficiency and efficacy should be related to plans and policies on environmental enforcement and compliance, in order to assess implementation.

We consider it opportune to promote the use of alternative means to solve controversies (conciliation, arbitrage) in order to improve effective environmental protection, and to include as agents of cooperation all the plaintiffs in the affected environment.

8. We consider it essential to promote public participation in environmental decision-making by establishing civic-environmental awareness in society, and favoring training in the use of the existing juridical tools.

9. Regarding Environmental Public Information, we believe that:

The right of public access to public information on environmental issues must be acknowledged or strengthened, depending on the case, as a tool for becoming aware of rights which could be potentially affected, and thereby guarantee access to justice.

In order to guarantee access to public environmental information it is vital to ensure clear summary proceedings, establish obligatory spontaneous dissemination of information by public and private sectors, provide mechanisms to impose sanctions in the event of non-compliance, and set limits on industrial or military secrets and the inversion of the burden of proof regarding the person responsible for providing the information.

Therefore, we urge the organisms of public administration to eliminate the "culture of the secret," (particularly common in our countries) and facilitate access to information for judges and prosecutors.

10. On judicial proceedings related to environmental protection:

We consider it necessary in our countries to take preventive environmental jurisdictional action, whose sentence should act as a deterrent.

We emphasize the importance of recognizing active, broad, real, and not purely formal, standing in order to secure access to justice in environmental proceedings.

Given the characteristic complexity of environmental questions and the urgency of their resolution, proceedings for the protection of diffuse interests must be highly summary. Consideration must be given to the fact that this type of prosecution is free of charge.

Priority must be given to the treatment of cases concerning fundamental rights, such as health, life and environment, over those dealing with patrimonial issues.

Considering the highly positive results achieved in recent experiences, we believe that instances of participation that enrich effective access to justice exist and that they deserve to be promoted. Examples are the participation of both citizens and the Public Ministry in promoting environmental causes, and the figure of Amicus curiae.

We consider the use of the sana crítica1 system, as a method for evaluating the proof and the game of presumption, to be necessary in proceedings on environmental issues, with the exception of penal proceedings because of their inherent features.

We must move towards the application of the theory of evidential dynamic burdens, considering that the person who must prove is the party who enjoys the best technical, economic, juridical or real conditions regarding the conducive facts.

The act of administering justice, especially in environmental issues, does not end with the literal enforcement of regulations: we think it is necessary to sharpen both wits and interpretative creativity in order to provide effective answers to the conflicts treated. That is why we are convinced of the need for an active judge in environmental proceedings, with broad capacities such as promoting complementary proofs, incorporating proofs not produced by the parties, and imposing fines.

We cannot fail to emphasize the need for an official body of experts in environmental cases, or to consider the information from public organisms to be of the same evidentiary level. We believe the signing of treaties between the organisms of the State opportune in facilitating access to the information on proofs already produced in order to be used in other proceedings. This would imply socializing the proof, thus avoiding any duplication of efforts.

In order to make the work of judges and prosecutors in environmental cases more efficient, we propose setting up specialized environmental security and scientific-technical advisory bodies in those countries where they do not exist.

As a general rule, we think it is fundamental to impose in the proceedings the procedural anticipation of proofs and precautionary measures, in order to prevent loss.

We consider coordination between the different jurisdictional instances in environmental cases to be of vital importance. m. We consider the application of the principle in dubio pro ambiente to be opportune.

The erga omnes scope of the sentences on environmental issues must be recognized, because of the collective nature of the protected right.

We state that proceedings for execution of a sentence in accordance with the highly summary nature of environmental proceedings must exist, in order not to pervert the recognized guarantee.

11. Regarding constitutional proceedings and environmental protection:

We recognize the need to incorporate the basic human right to a healthy well-balanced environment for the development of life into those constitutions in Latin America that do not contemplate it. Likewise, it is essential to incorporate the environmental principles contained in international pacts and treaties into internal legislations.

We consider that the rights recognized at a constitutional level should be demanded without the need for legal regulation, as an expression of the supremacy of the Constitution (recognition of the principle of in dubio pro ambiente).

We think it is necessary to reinforce the legally protected interest in our constitutional and legal systems, and to incorporate the duty to preserve natural resources and protect sustainable development.

We maintain that access to justice concerning constitutional guarantees cannot be restricted due to unnecessary formal issues. The procedure is tributary, but it is not a determining factor of the rights recognized by the Constitution.

We encourage the use of constitutional actions with rapid proceedings (this is the case of the action of protection in some countries).

We think it is necessary to incorporate or extend the obligation to repair any damage caused the environment in relation to the effects of the sentences concerning proceedings on the constitutional guarantees that protect this right, besides the suspension of the main act.

12. Regarding environmental civil action and the process for environmental damage, we state that:

We emphasize the need to recognize broad active standing in the environmental damage lawsuit, without restricting access to the jurisdiction of the Non-Governmental Organizations. this sense, we believe it is fundamental to incorporate and/or strengthen collective and popular actions on environmental damage in the region, and mitigate the incidence of costs in standing.

We pose the need for the Public Ministry to recognize the right to promote the action for environmental damage in those regulations where is not considered.

We urge judges and prosecutors of the region enforce the precautionary principle.

We consider the use of the sworn bond to be promising in proceedings on environmental damage, along with the exemption from payment of the bond due to damages and losses that may be caused by a precautionary measure.

We propose as a way of funding for the production of proof the creation of funds made up with amounts obtained through environmental administrative sanctions. Likewise, and with the aim of facilitating the production of proof, we advocate the cooperation of administrative organisms and universities, as well as the signing of cooperation treaties with international entities that may be able to contribute knowledge and technologies.

We consider the training of judges in environmental damage assessment techniques to be vital interest.

We urge the incorporation of the attribution factor of strict liability in those countries of Latin America that may not already consider it in their legal systems.

We propose the quantification of environmental damage as additional to material damage, and the need to establish assessment criteria for environmental interests and services.

We propose the need to extend the right to sue without charge to the action of reparation and prevention of environmental damage.

We suggest that, in the content of the sentences, the principle of the total reparation of damage be received.

We consider it essential to include in the definitive document the follow-up procedure in compliance with the sentence.

13. Regarding the environmental criminal action:

We consider that, when legislating on crimes against the environment, the nucleus of what is forbidden must be defined in the criminal type, and its imprudent commission must be incriminated, with prior determination of the most suitable legislative process compatible with respect for current constitutional principles in each of the countries.

We strongly advise strict enforcement and strengthening of the regulations on sanctions contained in the administrative law.

In relation to standing, we believe that the existence of an extensive capacity to report environmental offenses, as well as guaranteeing the damaged party, the civil society organizations and the ombudsman the right to be plaintiffs is positive.

It is necessary to give the Public Ministry a more active role on environmental offenses in those countries that do not consider it, and also standing so that its officers may simultaneously exercise non-criminal environmental public actions.

It is necessary to guarantee in the legislation the evidentiary weight of the judgments and reports, which in the framework of the environmental criminal actions may be requested from public organisms, universities and Non-Governmental Organizations.

It is important that judges and prosecutors adopt urgent preventive measures in order to halt or suspend any act which harms the environment, and create coordination mechanisms with the Judiciary in countries where prosecutors do not have this capacity.

It is essential to encourage civil society to involve itself in the criminal investigation of the facts that have damaged the environment.

The use of alternative measures both as a basis for the investigation of environmental offenses, and for solving conflicts of that kind, thus avoiding the prejudicial consequences and antagonisms derived from the enforcement of criminal sanctions, is considered appropriate.

14. Convinced of the need to strengthen the role of the prosecutors in Latin America that are dedicated to environmental issues, and given the importance of its intervention in the judicial proceedings, we urge:

The creation of new Associations of Prosecutors and Lawyers under the Prosecutors' Public Ministry in defense of the Environment and the strengthening of the existing ones.

The expansion of that initiative in conforming a Latin American Federation of Environmental Prosecutors.

The organization of a website with the aim of collecting information and documentation for investigation into environmental offenses.

The organization of training and practice courses in the framework of the proposed Prosecutors' Federation, in order to establish the economic value of environmental damage or degradation.

The signatories are:

Mr. Juan Araya Elizalde
(Minister of the Court of Appeals of Santiago, Chile)


Mrs. Lucía Arbeláez de Tobón
(Judge of the Administrative Department
of the Judiciary Council, Colombia)


Mr. Gustavo Azpeitía
(Judge of the Civil, Trade and Mining Court of Appeals,
Viedma, Río Negro, Argentina)

Mr. Carlos Báez
(General Secretary of the
Federal Judicature Institute, México)

Mr. Santiago Bahamondes
(Qualified Assistant Secretary in the General Prosecutor's Office No.1, Capital Federal, Argentina)


Mr. Carlos Balbín
(Judge of the Court of Appeals in Administrative and Tributary Litigation of the City of Buenos Aires, Argentina)


Mr. Dino Berdini
(Environmental Research Unit of the
General Prosecutor's Office before the Federal Court
of Appeals of Bahía Blanca, Argentina)


Mr. Néstor Cafferatta
(Associate Judge, High Court
of Buenos Aires Province, Argentina)


Mr. Adolfo Campos
(Assistant to the Director of the Judicial School, Panamá)


Mr. Héctor Carreño Seaman
(Minister of the Court of Appeals I of San Miguel,
Santiago de Chile)


Mr. Mario Gustavo Costa
(Judge, Criminal Federal Oral Court No.1, Argentina)


Mr. José Ernesto Criollo
(Director of the Judicial Training School of the
National Council of the Judicature, El Salvador)


Mr. Jaime Cruz Justiniano
(Criminal Sentence Judge, Santa Cruz, Bolivia)


Mr. Marcelo Dolzany Da Costa
(Federal Judge of Minas Gerais, Brazil)


Mr. Jorge Douglas Price
(Judge of the Court of Appeals, Civil, Trade and
Administrative Contentious of the IV Judicial Circumscription
of the Province of Río Negro, Argentina)


Mr. Sergio Dugo
(Second Instance Federal Judge, Federal House
of Appeals of La Plata, Argentina)


Mr. Raúl Alejandro Fernández
(Assistant Secretary of the General Prosecutor's Office before the Federal House of Appeals of Resistencia, Chaco, Argentina)


Mr. Manuel Fortín Aguilar
(Director of the Judicial School, Honduras)


Mr. Anderson Furlan Freire Da Silva
(Substitute Federal Judge, Brazil)


Mrs. Yalitza García
(Director General of Environment,
Public Ministry, Caracas, Venezuela)


Mrs. María Cristina Garrós M.
(Court Judge of Salta and Director of the Modernization Department of the Magistrates School of Salta)


Mr. Antonio Gustavo Gómez
(General Prosecutor of the Federal Court
of Tucumán, Argentina)


Mr. Juan Pablo González
(Prosecutor, Costa Rica)


Mr. Eduardo Raúl Graña
(Academic Director of the Judicial School
of the Judiciary Magistrate School, Argentina)


Mrs. Adriana Guillén
(Environmental Issues' Solicitor, Colombia)


Mr. Alfredo Gusman
(Prosecutor of the City of Buenos Aires, Argentina)


Mr. Henrique Luiz Hartmann
(Federal Judge, 2nd Federal Jurisdiction of Santo Ângelo,
Rio Grande do Sul, Brazil)


Mr. Antonio Herman de Vasconcellos
(Prosecutor, Brazil)


Mr. Gabriel Darío Jarque
(Secretary of the General Prosecutor's Office, Coordinator of the Environmental Research Unit, Bahía Blanca, Argentina)


Mr. Eduardo Pablo Jiménez
(First Instance Federal Judge, Mar del Plata, Argentina)


Mr. Miguel Jurado Fabara
(Environmental Prosecutor, Ecuador)


Mr. Ernesto Lechuga Pino
(Magistrate's General Director, Peru)


Mr. Ivan Lira Carvalho
(Federal Judge of 5th Jurisdiction, Rio Grande Norte, Brazil)


Mr. Eduardo Lombardi
(Director of the Judicial Studies Centre, Uruguay)


Mrs. Patricia López Vergara
(First Instance Judge in the Administrative Litigation Contentious Jurisdiction of the City of Buenos Aires, Argentina)


Mr. Raúl Madueño
(Vice-President of the National Court
of Criminal Annulment, Argentina)

Mr. Ricardo Merlo Faella
(Prosecutor, Paraguay)


Mrs. María Angélica Nigro
(Secretary and Lawyer of the 24th Civil Court
Santiago de Chile, Chile)


Mr. Marcos Oliva Day
(Prosecutor of Puerto Deseado, Santa Cruz, Argentina)


Mrs. Frinette Padilla Jiménez
(Judge, Dominican Republic)


Mr. Vladimir Passos de Freitas
(Federal Judge, President of the 4th Region
Federal Regional Court, Brazil)


Mr. José Antonio Peláez Bardales
(Criminal Assistant Supreme Prosecutor, Peru)


Mr. Rubén Pereyra
(Assistant Federal Prosecutor of the
City of Buenos Aires, Argentina)


Mrs. Alicia Pucheta de Correa
(Judge, Paraguay)


Mr. José Quesada
(Vice-President of the Supreme Court of Justice, Guatemala)


Mr. Arturo Ramírez Sánchez
(Judge of the Civil Court, México)


Mr. Carlos Javier Ramos Miranda
(Judicature Institute, Bolivia)


Mr. Jorge Marcelo Silva
(Environmental Research Unit of the General Prosecutor's Office before the Court of Appeals of Bahía Blanca, Argentina)


Mr. Juan Carlos Silva Opazo
(Judge of the Guarantee Court of Calbuco, Chile)


Mr. Jarbas Soares Sunior
(Environmental Justice Prosecuting Attorney
of Minas Gerais, Brazil)


Mrs. Roxana Sobenes
(Environmental Prosecutor, Guatemala)


Mr. Joaquín Talavera
(Director of the Judicial School, Nicaragua)


Mr. Enrique Viana Ferreira
(Civil National Prosecutor, Uruguay)


Mrs. Mariana Yepez
(General Prosecutor, Ecuador)

 

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