In response to the international and Colombian society's call to strengthen the environmental protection, the Congress of the Republic approved, and the President enacted Law 2111 of 2021. In accordance with the concern of the Congress and the Government, specially of the Ministry of Environment and Sustainable Development, to reinforce the battle against the activities that affect the environment, this Law replaced Title XI “Crimes against Natural Resources and the Environment” and modified the Colombian Criminal Procedure Code, making the penalties for the crimes more severe.
Regarding the replacement of Title XI of the Colombian Criminal Code, the Environmental Crimes Law modified some punishable acts, such as pollution, illegal hunting, illegal fishing, among others. It created new environmental crimes as deforestation, promotion and financing of deforestation, ecocide, financing of invasion of important ecological areas, illegal appropriation of wastelands, financing of appropriation of wastelands and wildlife trafficking. Likewise, this Law eliminated the crime of violation of borders for the exploitation of environmental resources, which was governed in article 329 of the Colombian Criminal Code.
About the new crime of illegal appropriation of wastelands, Law 2111 establishes in paragraph 2 of Article 337 of the Criminal Code that, when the conduct is committed by indigenous people, Afro-descendants and farmers, whose subsistence depends on the habitation, work or use of the wasteland, there will be no criminal liability.
Concerning the increase of the penalties for the environmental crimes, this Law establishes specific aggravating circumstances for some crimes, as well as ten additional common aggravated events. In addition, the imprisonment and fines penalties increased by approximately 25%.
With respect to the mens rea, it is important to mention that Law 2111 allows for negligence in 3 cases: ecocide, environmental pollution and environmental pollution by exploitation of mining sites and hydrocarbon deposits.
On the other hand, a new Specialized Directorate for Crimes against Natural Resources and the Environment was created in the Office of the Attorney General's. The purpose of this new Directorate is to provide the Prosecutor's Office with the necessary tools to prosecute and investigate acts that have the characteristics of an environmental crime.
In addition to the replacement of Title XI of the Criminal Code, Law 2111 of 2021 also amended the Criminal Procedure Code, as will be discussed below.
First, through the addition of numeral 33 of article 35 of the Criminal Procedure Code, it is established that the Specialized Circuit Criminal Judges will hear the crimes of illegal exploitation of renewable natural resources, wildlife trafficking, deforestation, promotion and financing of deforestation, damage to natural resources and ecocide, and invasion of areas of special ecological importance.
Second, a paragraph was added to article 91 of the Criminal Procedure Code, which indicates that, until the Judge of Knowledge issues his ruling, when the legal status has been suspended or cancelled due to reasonable grounds to infer that it has been totally or partially dedicated to the development of criminal activities, the natural or legal entity will be disqualified from constituting new legal personalities, premises or commercial establishments with the same object or economic activity.
Finally, the Environmental Crimes Law added a new paragraph to Article 92 of the Criminal Procedure Code, which indicates that, in relation with environmental crimes, the Judge may order as a precautionary measure "the seizure, confiscation of the species, suspension of the ownership of goods, the immediate suspension of the activity, as well as the temporary closure of the establishment and all those that [the Judge] considers pertinent, without prejudice to what may be ordered by the competent environmental authority."
As noted, Law 2111 of 2021 shows an important progress in terms of strengthening the tool of criminal law in environmental matters. Notwithstanding, no effective measures have been adopted to reduce impunity.
It is necessary to highlight that the increase of imprisonment and fines penalties are not an incentive (not even negative) when there is a high rate of impunity for environmental crimes and there are no clear, coherent, and strong preventive public policies that seek environmental protection. In fact, it makes no sense that in June 2021 the Congress did not ratify the Escazú Agreement – “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean” (Underlined outside original text) –, an important tool to strengthen a preventive policy in environmental matters, and almost a month later it issued the Environmental Crimes Law.
Furthermore, to investigate the commission of environmental crimes it is require that the entities that prosecute and judge have the necessary technical expertise to do so. Thus, although it is true that Law 2111 of 2021 created a Specialized Directorate for Crimes against Natural Resources and the Environment, there is still the shortcoming that the Specialized Circuit Criminal Judges will not hear all environmental crimes. Therefore, it is likely that the (non-specialized) criminal judges that hear crimes that are not provided for in numeral 33 of article 35 of the Criminal Procedure Code will not have sufficient tools to make an accurate value of judgment.
Bearing in mind the above analysis, it can be concluded that, although the Environmental Crimes Law is a significant step forward in strengthening environmental protection in criminal matters, there are still important challenges in the implementation of this legislation.