Abstract
Kosovo as a new country has many challenges to protect the environment. It was a territory with no effective environmental protection in the past, and now this is one of its main international commitments. It also has to enforce a legal system that has its origin in the legislation adopted by the United Nations Mission under the mandate of Security Council Resolution 1244/99 (UNMIK), and that has to incorporate the European Union Environmental law acquis to strengthen its relationship with it. Kosovo has some of the most polluted sites in Europe affecting both human health and the environment. Like many countries, it experiences serious problems of enforcement due to lack of human resources and expertise and weak governance as well as corruption and organized crime. These problems are at the root of illegal practices that are openly carried on in most of the territory of Kosovo: illegal logging, illegal hunting, illegal waste management, illegal building, destruction of cultural heritage of minorities, etc. They are aggravated by the lack of public and private sectors capable of assuming responsibility for services still carried out by the State or the EU Mission for the Rule of Law (EULEX). The informal sector is still providing most of the environmental-related services, in some cases contravening the recently adopted environmental legislation. In this scenario, is it possible for the EU to export its legal model of environmental protection to Kosovo, including the possibility of protecting the environment through criminal law?
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Notes
- 1.
See Law No. 02/L-18 on Nature Conservation available at http://www.assembly-kosova.org/common/docs/ligjet/2005_02-L18_en.pdf.
- 2.
This lack of consensus on the status of Kosovo among the member states has led the EU to adopt a special formula to refer to Kosovo in its documents, including the Stabilisation and Association Agreement: ‘this designation is without prejudice to positions on status [from the Member States], and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence’ (Fajardo 2015, p. 11).
- 3.
See the Instrument for Pre-Accession Assistance (IPA II), Multi-Country Indicative Strategy Paper (2014-2020), adopted on 30/06/2014, available at http://ec.europa.eu/enlargement/pdf/key_documents/2014/20140919-multi-country-strategy-paper.pdf.
- 4.
The civil law system is characterized by its dependence on administrative law, meaning that criminal law will only intervene when according to the principle of legality, the intensity and seriousness of the breach of administrative law standards of environmental protection requires a criminal sanction. On the other hand, the Common Law relies on an Inspectorate with wide powers to sanction and to decide fines or to initiate criminal procedures (Fajardo 2015).
- 5.
See Law No. 02/L-53 on Hunting, and in particular, Chapter X on Administrative Sanctions and Article 59 on undertake measures, available at http://www.assembly-kosova.org/common/docs/ligjet/2005_02-L53_en.pdf.
- 6.
In its Article 62 on Protection measures, the Law on Hunting states: ‘Besides the penalty for civil violence from Article 61, the person may be sentenced to the protection measures of seizing the mean item used or meant for committing the civil violence and the protection measure of seizing the property achieve as a result of civil violence or remained as a result of committing the civil violence’.
- 7.
Article 358 of the Criminal Code on Forest Theft: 1. Whoever, with the intent to steal, cuts down trees in a forest and the quantity of the timber cut down exceeds two cubic meters shall be punished by a fine or by imprisonment of up to one (1) year. 2. When the offense provided for in paragraph 1 of this Article is committed with the intent to sell the cut timber; if the quantity of the cut timber exceeds five cubic meters; or, the offense is committed in a protected forest, protected park or any other forest used for a specific purpose, the perpetrator shall be punished by a fine and by imprisonment of three (3) months to three (3) years. 3. An attempt to commit the offense provided for in paragraph 1 of this Article shall be punishable, Code No. 04/L-082 Criminal Code of the Republic of Kosovo, available at http://www.kuvendikosoves.org/common/docs/ligjet/Criminal%20Code.pdf.
- 8.
See Law No. 03/L-233 on Nature Protection, 2010, available at http://www.kuvendikosoves.org/common/docs/ligjet/2010-233-eng.pdf.
- 9.
The Constitutional Framework introduced a Chapter 5 on Responsibilities of the Provisional Institutions of Self-Government that envisaged in its sect. 5.1 that Provisional Institutions of Self-Government shall have responsibilities regarding (i) Environmental Protection. See Constitutional Framework for the Provisional Self-Government of Kosovo, available at http://www.assembly-kosova.org/common/docs/FrameworkPocket_ENG_Dec2002.pdf.
- 10.
See the TAIEX Workshop on the Implementation of the Environmental Information Directive and the Aarhus Convention, available at http://ec.europa.eu/enlargement/taiex/dyn/taiex-events/library/detail_en.jsp?EventID=50080.
- 11.
REC was established in 1990 by the United States, the European Commission, and Hungary. Today, REC is legally based on a charter signed by the governments of 28 countries and the European Commission, and on an international agreement with the government of Hungary. It defines itself as ‘a nonpartisan, non-advocacy, not-for-profit international organisation with a mission to assist in solving environmental problems in Central and Eastern Europe. REC fulfils this mission by promoting cooperation among non-governmental organisations, governments, businesses and other environmental stakeholders, and by supporting the free exchange of information and public participation in environmental decision making’. See REC Mission Statement in its new website available at http://www.rec.org/. REC has an office in Kosovo with the goal of ‘empowering citizenship to and support environmentally mainstreamed policy making’. ‘The office was established to assist in the development and strengthening of environmental civil society; to support the development and enforcement of appropriate environmental policies; and to ensure that environmental issues are taken into consideration during the process of transition’. The REC office in Kosovo focuses its activities in three main areas: providing support to institutions for efficient environmental management; providing information/education for civil society; development of sustainable communities. See REC Kosovo Office presentation available at http://www.rec.org/office.php?id=9.
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del Castillo, T.F. (2016). The EU Action to Protect the Environment in Kosovo and to Fight Environmental Crime. In: Sollund, R., Stefes, C., Germani, A. (eds) Fighting Environmental Crime in Europe and Beyond. Palgrave Studies in Green Criminology. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-349-95085-0_7
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