Recently, by the Beijing Municipal Kyoto Law Firm YanHuainan, LiMingZhen lawyers respectively defense of a key unit of environmental regulation of two employees suspected of pollution of the environment crime, after up to more than eight months of hard work, and ultimately obtain the results of non-prosecution, for the parties to win the complete freedom.
First, the case background
This case is due to a sewage treatment plant outfall discharge chemical oxygen demand (referred to as COD) of the automatic monitoring facilities abnormalities by the environmental protection department to investigate, and later found that the perpetrators of the monitoring equipment for the extraction of the drainage outlet pipe cut, inserted into the pre-prepared to meet the discharge standards of water containers, interference with the above automatic monitoring facilities, the violation of the discharge of chemical oxygen demand and other pollutants, environmental protection departments will be related to the transfer of the case to the public security, and ultimately the two perpetrators of the crime of polluting the environment. The environmental protection department then transferred the relevant case to the public security, and eventually the above two actors to the crime of pollution of the environment criminal case.
Second, the disposal of environmental crime defense lawyers how to break the situation?
First, the defender accepts the commission, the first time with the parties and their families to communicate, a comprehensive understanding of the facts of the case, found that the case is the disposal of environmental pollution crimes. Article 338 of the criminal law “serious pollution of the environment” as one of the constitutive elements of environmental pollution, from the perspective of criminal law doctrine and legal interpretation of criminal law provisions, the defender believes that the above elements show that environmental pollution is still the main focus of the crime of environmental pollution is the behavior of the environment caused by the harmful results, rather than just behavior. The defense believes that the above elements indicate that the main focus of the crime of polluting the environment is whether the act causes harmful results to the environment rather than just the act itself. However, according to the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Environmental Pollution (Legal Interpretation [2023] No. 7), Article 1, Item 7, the tampering with or interfering with the monitoring equipment also belongs to the scope of the crime of “serious pollution of the environment”, that is, through the regulation of the law, it will be the case of interfering with sampling, tampering with or falsifying the environment, and the crime of “serious pollution”. That is, through legal regulation, will interfere with sampling, tampering or falsification of environmental monitoring data into the criminal law incrimination. From the overall perspective, the defender believes that it should also be combined with the specific disposition of the type of behavior, means and methods, harmful consequences and other comprehensive judgment.
Specifically in this case, the defense followed the above ideas found five favorable defense: 1. This case did not cause any harmful consequences of environmental pollution; 2. The discharge of COD (Chemical Oxygen Demand) is fully in line with national standards, just slightly higher than the local standards; 3. The entire interference with the equipment sampling and monitoring data of the behavior of a short period of time, the harmfulness of the small; 4. The parties involved in the case after receiving the phone call to the unit of the initiative to go to the case, the case of a true confession, with the circumstances of surrender; 4. Confession, there are surrender circumstances; 5. The case unit has paid compensation for environmental damage, the damaged legal interests have been repaired. Therefore, combined with the above facts and evidence in the case, the defense fully argued: whether from the behavior or results, the case is a crime of minor circumstances, harm is not great, according to the “Criminal Procedure Law” Article 177, paragraph 2, belongs to the People's Procuratorate can be made not to prosecute the handling of the category.
Second, the defense conducted a large number of cases search, from a large number of cases found that there are several cases of behavior similar to this case, in the absence of surrender circumstances, but still made a decision not to prosecute. Although not in the last three years, but according to the principle of lightening the burden of proof, the defender will submit the case as an annex to the defense opinion to the case-handling organs, and fully communicated with the case handler, and strive to win the results of non-prosecution for the client.
Thirdly, after accepting the commission, the advocate instructed the unit involved in the case to deal with the criminal crisis, and went to the unit involved in the case several times to communicate with the response measures. The parties involved in the unit also actively cooperate with the case authorities to carry out rectification, including but not limited to technical rectification, safety and environmental protection regulations, education, system improvement, etc., although not listed as a suspect, but still support and cooperate with the case authorities to the maximum extent possible, and strive to fight for the optimal rights and interests of the employees involved in the case! What's more, it has laid a solid foundation for the future long-term and sound development of the enterprise.
Finally, the case after eight months long saw, in the joint efforts of the two actors involved in the case of non-prosecution decision, the case involved in the unit of highly recognized the work of the defenders, the unit is not due to the above events and fall into a criminal case and expressed deep gratitude!
Third, the conclusion: a wake-up call and reflection
Although this case for the parties to win valuable freedom, but the significance of a successful case not only lies in the results, but also to cause enough awakening and reflection: with the state attaches great importance to environmental protection, “green mountains is the mountains of gold and silver” concept is gradually deepened in people's hearts, in recent years, more and more serious interference with the sampling, tampering or falsification of environmental monitoring data behavior began to be subjected to the law. In recent years, more and more serious interference with sampling, tampering or falsification of environmental monitoring data behavior began to be regulated by the criminal law. In this case, the relevant enterprises and personnel should strictly abide by the legal red line, set up the banner of environmental protection, legal and compliant operations, if necessary, the introduction of professional lawyers team of gatekeepers, only in this way, in order to be able to safety and environmental compliance in the management of the steady march!
Translated with DeepL.com (free version)
