PRESENTATION OF MONTENEGRO Negotiating Team for the Accession of Montenegro to the European Union Working Group for Chapter 27 – Environment Bilateral screening: Chapter 27 PRESENTATION OF MONTENEGRO Brussels, March 2013

Chapter 27: Environment &Climate Change Chapter 27: Environment and Climate Change Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law Brankica Cmiljanovic Jokanovic Senior Adviser, Department of Horizontal legislation and the harmonization of regulations Ministry of Sustainable Development and Tourism brankica.cmiljanovic@mrt.gov.me M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment &Climate Change

Chapter 27: Environment and Climate Change Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law The main transposing instrument is the Criminal Code and the Law on Criminal Liability of Legal Persons According to the Progress monitoring report the most provisions have already been transposed The remaining provisions shall be transposed to the amendment of the Criminal Code The amending of the Criminal Code is in progress M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

ARTICLE 3 OF THE DIRECTIVE Chapter 27: Environment and Climate Change ARTICLE 3 OF THE DIRECTIVE Article 3 of the 2008/99 Directive has been transposed by Criminal Code - Chapter XXV Chapter XXV of the Criminal Code encompasses criminal acts against environment, but also criminal acts related to illegal construction of objects, poaching, etc. M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change Article 3.1, Offences 3. 1 (a) – transposed by Criminal code (Official Gazette of the RoMNE 70/2003, 47/2006 and Official Gazette of MNE 40/2008, 25/2010 and 32/2011) by articles 303, 304, 305, 307, 308, 313, 314, 315 - Shall be replaced by the new amendments of the article 303 3. 1(b), 3.1 (c) transposed by Criminal code (Official Gazette of the RoMNE 70/2003, 47/2006 and Official Gazette of MNE 40/2008, 25/2010 and 32/2011) by articles 313, 314, and shall be highlighted as a new criminal offence, article 303a (pollution of the environment by waste) 3.1 (d) transposed by Criminal code (Official Gazette of the RoMNE 70/2003, 47/2006 and Official Gazette of MNE 40/2008, 25/2010 and 32/2011) by articles 305, 314. This article shall be ammended and precisely defined by amendments of articles 305, 314 (Unlawful Construction and Putting into Operation and work Facilities and Installations which Pollute the Environment, Unlawful Use, prodaction, Processing, handeling, Disposal and Storing, import and export of Dangerous Substances) M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change Article 3.1, Offences 3. 1 (e) – transposed by Criminal code (Official Gazette of the RoMNE 70/2003, 47/2006 and Official Gazette of MNE 40/2008, 25/2010 and 32/2011) by articles 313, 314, 336- Article 314 shall be amended 3. 1(f) transposed by Criminal code (Official Gazette of the RoMNE 70/2003, 47/2006 and Official Gazette of MNE 40/2008, 25/2010 and 32/2011) by Articles 308, 309, 310 and 311. Articles 308, 309 shall be amended 3.1 (g) transposed by Criminal code (Official Gazette of the RoMNE 70/2003, 47/2006 and Official Gazette of MNE 40/2008, 25/2010 and 32/2011) by Article 312. Article 312 shall be amended 3.1 (h) transposed by Criminal code (Official Gazette of the RoMNE 70/2003, 47/2006 and Official Gazette of MNE 40/2008, 25/2010 and 32/2011) by Articles 303, 309, 310, 311, 312 . Articles 309 shall be amended M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change Article 3.1, Offences 3.1 (i) the production, importation, exportation, placing on the market or use of ozone-depleting substances shall be transposed by the Draft version of the amendments of the Criminal Code – article 3.1 (i) was missing A new article - criminal offence shall be added “ozone-depleting substances” article 303 b of the Draft of the amendment of the Criminal Code Beside the protection of the environment proscribed by the Criminal Code, also the relevant prohibitive measures have also been transposed to the sectoral laws as misdemeanor (e.g. Law on Waste Management, Law on Air protection, Law on Nature Protection, Law on the air quality, etc.) M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

DIRECTIVE’S PROVISIONS Chapter 27: Environment and Climate Change . Inciting, aiding and abetting (Criminal Code (Official Gazette of the Republic of Montenegro, 70/2003, 47/2006 and Official Gazette of Montenegro 40/2008, 25/2010 and 32/2011) - Art. 23, 24 and 25 Liability of legal persons are stipulated by the Law on Criminal Liability of Legal Entities, (Official Gazette of Montenegro, 02/07 from 11.01.2007) M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

DIRECTIVE’S PROVISIONS Chapter 27: Environment and Climate Change Some Directive’s provisions as follows: Art. 2(a) Definitions “unlawful”- not strictly defined by Criminal Code, Articles start with “ Anyone who by breaching regulations on ... “protected wild fauna and flora species” –Amendments to the Law on Nature “habitat within a protected site”- Amendments to the Law on Nature M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

CRIMINAL OFFENCES FROM CHAPTER XXV Chapter 27: Environment and Climate Change CRIMINAL OFFENCES FROM CHAPTER XXV Crimminal offences also include: Article 307 a: Abuse of Genetically Modified Organisms Article 316: Failure to Enforce the Decision related to Environmental Protection Measures Article 317: Violation of the Right to be Informed on the State of the Environment Article 323: Devastation of Forests Article 324: Forest Theft Article 325: Unlawful Hunting Article 326: Unlawful Fishing Article 326а: Building a Facility without a Building Permit Article 326b: Unlawful Connection of a Construction Site to the Technical Infrastructure M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change Competencies The Ministry of Justice – for transposition of the Directive 2008/99/EC Competent Courts- for implementation The State Prosecutor´s office – for prosecution Inspection Directorate is responsible for: -submission of misdemeanor procedure application -fines - submission criminal penalties applications - prohibition of performing, activity or duty - collecting and monitoring all above mentioned datas Institute for the Execution of Criminal Sanctions and specialized institutions are responsible for enforcement of criminal sanctions M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change COMPETENCIES Competent Courts Supreme court High courts Commercial courts Administrative court Appellate court Basic courts The State Prosecutor´s office Supreme State Prosecutor´s office High State Prosecutor´s office Basic State Prosecutor´s office M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change COMPETENCIES Local misdemeanour authorities -17 Misdemeanor Panel Conduction of the misdemeanor proceedings constitute a separate system from the ordinary courts M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change STATISTICS In a period (01.03. 2009. - 31.12.2012.) Ecological Inspection has submitted 15 criminal charges 6 criminal charges have been rejected by the Prosecution In 2012. Ecological Inspection has submitted 3 criminal charges For all 3 criminal charges process is ongoing by Basic State Prosecutor´s office M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change STATISTICS In a period ( 01.03. 2009. - 31.12.2012.) Ecological Inspection has submitted 121 requests for initiation of offense proceedings and 26 misdemanour warrants In a period 01.01.2012. – 31.12.2012 Ecological Inspection has submitted 33 requests for initiation of offense proceedings By breaching regulations Law on waste management 18 requests were submitted Law on Environmental Impact Assessment 3 requests were submitted Law on National Parks 1 request was submitted Law on Nature protection 1 request was submitted Law on Law on Inspection Supervision 1 request was submitted Law on Ionizing radiation and radiation safety 2 request were submitted The offense proceedings have been initiated for the 7 requests caused by failure to comply to the decisions made by Environmental inspection. M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment

Chapter 27: Environment and Climate Change I) Data from Local misdemeanor authorities Number of cases handled Number of disposed cases Number of pending cases 99 48 48,48% 51 51,51% Fine Admonishment Stay of proceedings Dismissal Acquittal Total 25 52,08% 1 2,08% 2 4,16% 16 33,33% 4 8,33% 48 II) Data from the Misdemeanor Panel of Montenegro Number of cases Number of disposed cases Number of pending cases 5 - Appeal dismissed Abolished Total 1 4 5 M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change Report on Montenegrin courts` judgments on the criminal offences against the environment and spatial development Non final verdict 2011 Article Type of judgment Total 303 Conviction 16 309 Acquittal 1 310 4 323 Rejection 324 10 67 99 325 18 326 46 Stay of proceedings 26 M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change Conviction 111 Acquittal 17 Rejection 4 Stay of proceedings 1 326 b 3 Dismissal Total 438 M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change 2012 Article Type of judgement Total 309 Acquittal 4 Conviction 1 323 324 Rejection 9 30 115 325 11 326 Stay of proceedings 159 22 326 a 12 250 3 Dismissal 326 b 5 628 M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change 2013 Article Type of judgement Total 324 Acquittal 1 Conviction 4 325 326 9 Rejection 326 a 25 2 44 M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change Final verdict 2011 Article Type of judgement Total 303 Conviction 16 323 4 Rejection 1 324 Acquittal 12 62 325 6 326 29 19 326 a 50 7 326 b 2 Dismissal 223 M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change 2012 Article Type of judgement Total 309 Acquittal 1 Conviction 2 324 Rejection 8 14 123 325 26 326 18 326 a 15 192 3 326 b 528 M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change 2013 Article Type of judgement Total 324 Conviction 4 325 1 326 11 326 a 16 32 M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Chapter 27: Environment and Climate Change CHALLENGES Further capacity building: Inspection Directorate Prosecutors Expert witnesses Judges M O N T E N E G R O Negotiating Team for the Accession of Montenegro to the European Union Chapter 27: Environment and Climate Change

Thank you for your attention QUESTIONS