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The New Concept Increases a Liability in the Sphere of Environmental Protection

On 28 April 2021, the Cabinet of Ministers of Ukraine has adopted Order No. 401-р (the "Order"). The Order approves a concept for the laws' elaboration to increase and make inevitable the administrative and criminal liability for the breaches of environment protection laws and rules (the "Concept").

For the said purpose, the Ministry of Ecology and Natural Resources of Ukraine under the Order should develop and submit to the government the drafts of the following laws:

  • On amendments to the Code of Administrative Offences of Ukraine, and
  • On amendments to the Criminal Code of Ukraine.

The enlisted draft laws, under the Concept, should amend the following articles of the Code of Administrative Offences to comply with EU Directive 2004/35/CE:

  • Article 29 "Confiscation of an object that has become an instrument of committing or a direct object of an administrative offense";
  • Article 87 "Violation of the requirements for the environment protection of habiting and ways of migration, resettlement, acclimatization, and crossing of wild animals"; and
  • Article 90-1 "Failure to comply with rules and regulations in the process of creation, production, storage, transportation, use, disposal, elimination, disposal of microorganisms, biologically active substances and other biotechnology products".

The Code of Administrative Offences shall also survive the modifications of the following articles:

  • Article 64 "Violation of the established procedure for the use of timber cutting stock, timber harvesting and export, resin harvesting";
  • Article 78-1 "Violation of the procedure for activities aimed at artificial changes in the state of the atmosphere and atmospheric effects";
  • Article 79 "Failure to comply with air protection requirements during commissioning and operation of enterprises and constructions";
  • Article 82 "Violation of requirements for waste management during its collection, transportation, storage, treatment, utilization, disposal, removal or underground disposal";
  • Article 82-1 "Violation of the rules of primary accounting and control over waste management operations or non-submission or submission of reports on the generation, use, disposal and disposal of waste";
  • Article 82-4 "Mixing or disposal of waste for which in Ukraine there exists a disposal technology, without special permission";
  • Article 85 "Violation of the rules of use of animal world objects";
  • Article 188-5 "Failure to comply with lawful orders or instructions of officials of the bodies that exercise state control in the sphere of environmental protection, use of natural resources, radiation safety or protection of natural resources".

The Criminal Code of Ukraine shall have the following amendments:

  • Article 236 "Violation of ecological safety rules";
  • Article 239 "Pollution or damage to lands";
  • Article 241 "Atmosphere air pollution";
  • Article 242 "Violation of water protection rules";
  • Article 243 "Marine pollution".

What is more, the Order shall envisage criminal liability for the production of ozone-depleting substances and fluorinated greenhouse gases and the criminal liability of the legal entities.

In general, the Concept is a logical development in the sphere of ecology. However, the suggested amendments may be changed during the relevant laws' elaboration and their passing by the parliament.

For more information, please contact Asters Counsel Anzhelika Livitska and Senior Associate Bohdan Shmorhun.

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