The Brazilian Environmental Crimes Law was passed in March of 1998 and is considered to be one of the most modern and comprehensive legal texts focusing on environmental crime. Some of the specific articles that give this law force are highlighted and explained below.
Broad Culpability. Article 2 is important because it establishes culpability, not only for the person who actually breaks a law, but notably, also for any person in a position of authority, person who knew about the illegal activity and failed to stop it or inform the appropriate authorities.
Assignment of Penalties. Article 6 outlines three general criteria that should be considered in the assignment of penalties for an environmental law violation. They are:
- 1. The seriousness of the act and the intent of the person who committed the act and additionally the seriousness of the repercussions of the act on the environment and human health.
- 2. If the person who committed the act has a history of environmental law violations.
- 3. The financial situation of the person who violated the environmental law.
Article 7 explains the circumstances where a person should be punished through a fine, community service or other means, other than imprisonment i.e. when the crime is unintentional i.e. “without malice” or carries a jail term of “up to four years” overall reputation of the offender, his motive and circumstances of the crime.
Aggravating and Mitigating Circumstances. “Aggravating circumstances” is a legal term for factors that can make a penalty more severe. The law requires that these factors be considered when assessing the seriousness of a crime:
- 1. Frequency of the environmental crimes
- 2. If the offender was motivated by:
“Mitigating circumstances” is the legal term for factors that can make a penalty less severe. The law requires that these factors be considered when assessing the seriousness of a crime i.e.:
- 1. Low educational level of the offender
- 2. The offender’s remorse, exhibited by spontaneous reparation of the environmental damage, limitation of the harm caused.
Crimes Against Fauna. Section I of the law contains a detailed list of actions that are considered to be crimes against fauna, or animal life. A person who commits one of these acts is automatically violating the law and is subject to the prescribed penalty, which in this case, is imprisonment for six months to one year and a fine.
The law also includes the aggravating and mitigating circumstances that should be considered when determining the penalties. For example, the penalty is increased by half, if the crime is committed:
- 1. Against rare species or species considered endangered, even if only at the site of violation;
- 2. In the period in which hunting is prohibited;
- 3. During the night;
- 4. By abusing the license;
- 5. Within a protected area;
- 6. By using methods or instruments capable of provoking mass destruction.
Crime Against Flora.Section II of the law contains a detailed list of actions that are considered to be crimes against flora, or plant life. A person who commits one of these acts is automatically violating the law and is subject to the prescribed penalty, which varies according to the crime. The law also included the aggravating and mitigating circumstances that should be considered when determining the penalties. Thus, for the examples given here, the penalty is to be increased by one sixth to one third if:
- 1. A result of the fact is the decrease of natural waters, soil erosion or modification of climatic regime;
- 2. The crime is committed:
Pollution and Other Environmental Crimes.Section III of the law contains a detailed list of actions that are pollution and other environmental crimes. A person who commits one of these acts is automatically violating the law and is subject to the prescribed penalty. The law also includes the aggravating and mitigating circumstances that should be considered when determining the penalties.
Crimes Against Environmental Administration.The section on crimes against environmental administration generally includes violations committed by civil servants that harm the environment in some way. For example, making false statements or issuing environmental permits illegally. The penalties for each of these types of violations are prescribed in the law, as well as the aggravating and mitigating circumstances.