In the criminal law practice, the Costaș, Negru și Asociații team obtained an important acquittal for the charge of committing the crime of waste disposal in violation of legal provisions and which may cause significant damage to the environment – art. 63 para. (1) letter g) of Law 211/2011 on the waste regime.
Thus, the criminal prosecution authorities accused the company that Costaș, Negru și Asociații represented that the animal waste disposal activity carried out as a collector and valorizer of non-hazardous waste (animal tissue waste, raw materials that are not suitable for consumption or processing) had caused soil and water pollution near the company’s headquarters.
The first instance validated the position of the Prosecutor’s Office attached to the Măcin Court and ordered the conviction of the company and its administrator, holding that, from the analysis of the evidence administered in the case and the circumstances in which the acts were committed, it results that a sufficiently serious violation was brought to the social values protected by the act incriminated by the criminal law. The first instance also found that the causal link necessary for the existence of the crimes subsists, between the acts committed and the socially dangerous consequences produced by the defendants.
Therefore, the Măcin Court imposed the following sentences on the defendants:
a) For the defendant, a natural person:
- Pursuant to art. 396 para. (1) and (2) of the Code of Criminal Procedure in relation to art. 63 para. (1) letter g) of Law 211/2011 on the waste regime, the defendant, a natural person, is sentenced to 3 years in prison for committing the crime of disposing of waste in violation of legal provisions and which may cause significant damage to the environment.
- Pursuant to art. 396 para. (1) and (2) of the Code of Criminal Procedure in relation to art. 92 para. (1) of Law 107/1996, the Water Law sentences the same defendant to 1 year in prison for committing the crime of discharging or injecting waste, residues containing substances, bacteria or microbes into groundwater in quantities that may endanger the environment.
- Pursuant to art. 396 para. (1) and (2) of the Code of Criminal Procedure in relation to art. 98 para. (2) letter a) of the Emergency Ordinance 195/2005, on environmental protection, sentences the same defendant to 2 years in prison for committing the crime of pollution by discharging waste or hazardous substances into the soil.
- Finds that the three crimes are concurrent, and pursuant to art. 38 para. (2) of the Criminal Code in relation to art. 39 para. (1) letter b) of the Criminal Code, merges the sentences imposed by this decision, as follows: applies the sentence of 3 years in prison, to which is added the additional sentence of 1 year in prison (representing one third of the total of the other two prison sentences), resulting in a total of 4 years in prison and orders that the defendant serve the resulting sentence of 4 years in prison in detention.
- Pursuant to art. 67 paragraph (1) of the Penal Code, the defendant shall be subject to the additional penalty of being prohibited from exercising the rights provided for in art. 66 paragraph (1) letters a), b) and g) of the Penal Code for a period of 4 years calculated after the execution of the prison sentence, in accordance with art. 68 paragraph (1) letter c) of the Penal Code.
- Pursuant to art. 65 paragraph (1) of the Penal Code, the defendant shall be subject to the additional penalty of being prohibited from exercising the rights provided for in art. 66 paragraph (1) letters a), b) and g) of the Penal Code from the date the judgment becomes final until the execution or consideration of the execution of the prison sentence.
b) For the defendant legal entity:
- Pursuant to art. 396 para. (1) and (2) of the Code of Criminal Procedure in relation to art. 63 para. (1) letter g) of Law 211/2011 on the waste regime, the defendant legal entity is sentenced to a fine in the amount of 80,000 lei (200 days-fine x 350 lei/day-fine) for committing the crime of disposing of waste in violation of legal provisions and which may cause significant damage to the environment.
- Pursuant to art. 396 para. (1) and (2) of the Code of Criminal Procedure in relation to art. 92 para. (1) of Law 107/1996, the Water Law sentences the same defendant legal person to a fine of 80,000 lei (200 days-fine x 400 lei/day-fine) for committing the crime of discharging or injecting into groundwater waste, residues containing substances, bacteria or microbes in quantities that may endanger the environment.
- Pursuant to art. 396 para. (1) and (2) of the Criminal Procedure Code in relation to art. 98 para. (2) letter a) of GEO 195/2005, on environmental protection, sentences the same defendant legal person to a fine of 80,000 lei (200 days-fine x 400 lei/day-fine) for committing the crime of pollution by discharging waste or hazardous substances into the soil.
- Finds that the three offenses are concurrent, and pursuant to art. 38 paragraph (2) of the Criminal Code in relation to art. 39 paragraph (1) letter c) of the Criminal Code merges the penalties imposed by this decision, as follows: applies the penalty of a fine in the amount of 80,000 lei (200 days-fine x 400 lei/day-fine), to which is added the increase of 53,333 lei (representing one third of the total of the other two prison sentences), resulting in a total fine of 133,333 lei.
- Pursuant to art. 136 paragraph (3) letter b) of the Criminal Code in relation to art. 140 of the Criminal Code, applies to the defendant legal entity the complementary punishment regarding the suspension of the activity of the legal entity, respectively the prohibition of carrying out the activity consisting of “manufacture of fertilizers and nitrogenous products (manufacture of fertilizers of animal and vegetable origin) – CAEN code 2015”.
At the same time, the trial court, pursuant to art. 19, art. 25, art. 397 paragraph (1) of the Code of Criminal Procedure with reference to art. 1357 of the Civil Code, dismissed the civil action brought by the civil party, the Ministry of Environment, Waters and Forests.
The defendants, the Prosecutor’s Office and the civil party appealed against this decision. The entire case was submitted to the appellate court – the Constanta Court of Appeal, in order to resolve the appeals.
Before the Constanta Court of Appeal, during the judicial investigation stage, the appellate court admitted the requests for probation filed by the defendants and ordered the performance of an expert examination in geology and an expert examination in accounting.
The purpose of the request for an expert report in the geology specialization was to prove the unfoundedness of the accusation formulated by the Prosecutor’s Office, an accusation validated by the first instance, regarding the degree of soil damage by the quantity of waste deposited, and of the expert report in the accounting specialization, to determine the quantities of by-products not intended for human consumption (SNCU) collected and incinerated by the defendant company.
Before the court of appeal, the defendants requested acquittal for the three crimes brought to trial, claiming that the conditions of typicality are not met since the acts are not provided for by the criminal law, being an incident of art. 16 letter b) sentence I of the Criminal Procedure Code. Moreover, at the date of the commission of the alleged acts (January 2021) the act under investigation was not provided for by art. 63 letter g) of Law no. 211/2011, this text of law being introduced later, namely on 23.04.2021.
With regard to this request, the court of appeal found that on 15.11.2011, art. 63 of Law no. 211/2011, had the following content:
(1) The following acts constitute a crime and are punishable by imprisonment from 6 months to 5 years:
a) the import of used and worn-out devices, installations, equipment, machinery, substances and products, from the category of waste prohibited for import;
b) the marketing, abandonment and/or failure to secure the load of waste during and during transit through the territory of Romania;
c) the refusal to return to the country of origin of waste introduced into the country for which the return measure was ordered by the competent authority;
d) the introduction of waste into the country for the purpose of disposal and/or their failure to use for the purpose for which they were introduced;
e) acceptance by landfill/incinerator operators, as well as by any natural or legal person, of waste illegally introduced into the country, for disposal, and/or of waste introduced into the country for purposes other than disposal and which could not be used for the purpose for which they were introduced.
(2) Attempt shall be punishable.
On 1.02.2014 this article was amended by Law no. 187/24.10.2012 by art. 233, in the sense that letter f) was also introduced – acceptance by landfill/incinerator operators, in order to eliminate illegally introduced waste and/or waste introduced into the country for purposes other than that of elimination that could not be achieved for the purpose for which they were introduced.
Subsequently, on 23.04.2021, by Law no. 90/19.04.2021, that is, after the exhaustion of the criminal activity (January 2011), held responsible for the defendants, art. 63 of Law no. 211/2011 was amended again, in the sense that letter f) was introduced. g) – collection, transport, recovery or disposal of waste, including the control of these operations and the subsequent maintenance of disposal areas, including actions taken by traders or brokers in the waste management process, in violation of the legal provisions in the field, which may cause the death or bodily injury of a person or significant damage to air quality, soil quality or water quality or animals or plants.
It is true, as stated in the appealed criminal sentence and in the indictment, that the provisions of art. 63 letter g) of Law no. 211/2011 were taken over by GEO no. 92/19.08.2021, which repealed the provisions of Law no. 211/2011, and the text of the law in the form provided for by art. 63 letter g) of Law no. 211/2011, is true, was taken over in art. 66 para. (2) letter c) of GEO no. 92/2021 of 26.08.2021, but in the form in which Law no. 211/2011 was found at the date of adoption of the ordinance, the respective incrimination not existing at the time of exhaustion of the criminal activity retained by the notification act, i.e. on 20.01.2021, being regulated after this moment.
Therefore, the appeal court validated the defenses formulated by the defendants, in the sense that their conviction for the crime provided for in art. 63 letter g) of Law no. 211/2011 with the application of art. 5 of the Criminal Code could not be ordered, as it contravenes the provisions of art. 3 of the Criminal Code, regarding the activity of the criminal law and the provisions of art. 15 paragraph (2) of the Constitution of Romania, this act not being incriminated on 20.01.2021, requiring the acquittal of the defendants under art. 16 paragraph (1) letter b) sentence I of the Code of Criminal Procedure.
At the same time, the appeal court held that although the Prosecutor’s Office claimed that the criminal activity dates back to 26.04.2011, the date on which the environmental permit for the defendant company was issued, Law no. 211/2011 entered into force much later, namely on 15.11.2011. Therefore, the criminal activity from 26.04.2011-15.11.2011 cannot be held responsible for the defendants.
This solution confirms that the criminal prosecution must be carried out diligently, in full legality, in compliance with all procedural norms and in a manner that ensures the standards of the rule of law. Regardless of the public pressure and emotion created by the accusation, the courts can only act within the limits of the law, as a guarantee of the rule of law. It is precisely these elements that differentiate the judicial systems in consolidated democratic societies and guarantee the conduct of a fair trial, reaffirming trust in justice.
The clients were represented in the appeal phase, before the Constanța Court of Appeal, by a team of lawyers from Costaș, Negru & Asociații – attorney Dr. Lia Pricope, attorney Maria Tușa, attorney Dr. Cosmin Flavius Costaș, in litigation consortium with attorney Valerică Florea (Bucharest Bar Association).
Costaș, Negru & Asociații is a civil law firm with offices in Cluj-Napoca, Bucharest and Arad, which offers assistance, legal representation and consultancy in several areas of practice through a team of 16 lawyers and consultants. Details regarding legal services and the composition of the team can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru & Asociații, their reproduction being permitted only for information purposes and with correct and complete citation of the source.
