Punishment without culpability in environmental offences

Abstract

Under existing Indonesian environmental legislation, the principle of punishment without culpability has been applicable exclusively in civil cases, closing the possibility to open prosecutorial window in criminal cases. This paper aims to explore the legal considerations and the scope of application of punishment without culpability in environmental offenses. This paper employed doctrinal legal research focusing on the legal provisions of environmental legislation in which the culpability of the culprit was not stated in an explicit manner. In addition, this study analysed the judicial decisions in the application of punishment without culpability. The findings of the study show that most of the prohibited offenses in environmental legislation deal with the malum prohibitum crime tied to the violation of a permit. The mental element is not explicitly stated in these offenses. Hence, the culpability of the defendant is presumed to be displayed in the evidence of the prohibited conduct. Waste or emissions discharged into the environmental media without authorisation is prohibited and is pertaining the potential to harm the environment. These offenses are included as formal offense by removing the element of culpability in the structure of the offense. It is also sufficient for the court to rule that the defendant has committed the prohibited conduct as the basis for imposing criminal sanction.

Keywords

• punishment without culpability
• environmental offenses
• abstract and concrete endangerment model
• judicial response