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),
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
of Environmental Law and Economy, Paraguay (IDEA) and
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
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
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
Training Strategy. Convinced of the need to encourage the
training and participation of judges and prosecutors in environmental
issues, we propose to:
surveys or studies of opinion that will identify concrete
necessities as outlined by judges and prosecutors.
public awareness campaigns on environmental issues.
environmental issues into the training programs for judges
and prosecutors in the corresponding national and local
regional training through the Ibero- American Network of
training on environmental issues by means of incentives.
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.
spaces for the exchange of experiences.
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
towards the institutionalization of the environmental
training received by judges and prosecutors, bearing in
mind the significance of implementing assessment and monitoring.
auxiliary staff from the courts, Public Ministry, and
Public Administration in the training programs
As part of the incidence strategy we commit ourselves to the
general, to circulate this Declaration in each of our areas
of action and participation.
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
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.
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.
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.
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.
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
recognize that it is an essential requirement to generate
and systematize information on environmental development,
compliance and enforcement, guaranteeing free access.
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
urge the identification of technical units to support the
organisms entrusted with environmental development, compliance
understand that the use of resources destined to environmental
development, compliance and enforcement must be optimized.
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:
urge the implementation of serious policies to secure environmental
enforcement and compliance in our countries.
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.
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
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.
Regarding Environmental Public Information, we believe that:
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.
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.
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:
consider it necessary in our countries to take preventive
environmental jurisdictional action, whose sentence should
act as a deterrent.
emphasize the importance of recognizing active, broad, real,
and not purely formal, standing in order to secure access
to justice in environmental proceedings.
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.
must be given to the treatment of cases concerning fundamental
rights, such as health, life and environment, over those dealing
with patrimonial issues.
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.
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
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.
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.
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.
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.
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.
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.
erga omnes scope of the sentences on environmental issues
must be recognized, because of the collective nature of the
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
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.
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).
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
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.
encourage the use of constitutional actions with rapid proceedings
(this is the case of the action of protection in some countries).
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:
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
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.
urge judges and prosecutors of the region enforce the precautionary
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.
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.
consider the training of judges in environmental damage assessment
techniques to be vital interest.
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.
propose the quantification of environmental damage as additional
to material damage, and the need to establish assessment criteria
for environmental interests and services.
propose the need to extend the right to sue without charge
to the action of reparation and prevention of environmental
suggest that, in the content of the sentences, the principle
of the total reparation of damage be received.
consider it essential to include in the definitive document
the follow-up procedure in compliance with the sentence.
13. Regarding the environmental criminal action:
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.
strongly advise strict enforcement and strengthening of the
regulations on sanctions contained in the administrative law.
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.
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.
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.
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.
is essential to encourage civil society to involve itself
in the criminal investigation of the facts that have damaged
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
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:
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.
expansion of that initiative in conforming a Latin American
Federation of Environmental Prosecutors.
organization of a website with the aim of collecting information
and documentation for investigation into environmental offenses.
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:
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)
(General Secretary of the
Federal Judicature Institute, México)
(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
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)
Ricardo Merlo Faella
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
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)