Antonio Vercher: “It would have been much better if El Algarrobico had collapsed, but the defeat would have been open.”
Antonio Vercher (Tavernes de la Valldigna, Valencia, 1953) has been in charge of the Public Prosecutor’s Office specialized in the field of environment and urban planning for almost two decades, from where he directs the Public Ministry’s actions in environmental crimes. He recently published the book Environmental Crime and Companies (Marcial Pons, 2022), where he gathers his extensive experience in investigating various forms of aggression against nature. In the volume, he looks at the progress of this legal discipline and warns of the risks of new phenomena, such as the greenwashing of the image promoted by some companies, the so-called Greenwashing or the challenge of waste treatment.
Vercher hosts elDiario.es in his office on Calle Ortega y Gasset in Madrid, in a spacious room with a large window overlooking the capital’s wealthy area. From there, he coordinates the work of more than two hundred prosecutors who specialize in the fight against environmental damage and wild urbanism. Currently, more than a thousand are convicted each year for environmental, urban planning, forest fires and mistreatment of domestic animals.
In his book, he confirms that if there is anything about environmental issues, it is not only because of its breadth, but also because of the speed of its evolution. You have been leading this prosecutor’s office since 2006, when it was established. What evolution have you seen during this time?
Since 1922 — the date of the first criminal law code — there has not been a single criminal figure where so much progress has been made. The first reference we have to the environment conceptually speaking is in the Regulation of Nuisance, Unwholesome, Noxious and Hazardous Activities of 1961. In 1978, the environmental regulation appeared in the constitution, and in 1983, the emergency and partial reform law. Article 347 bis of the Criminal Code [que regula el delito ecológico]. Since then it has gone from nothing to practically forty articles.
Pressure from public institutions has led to the prosecution of companies for environmental crimes since 2010. After more than ten years, what is your assessment of this change in sentencing? How was it affected?
There is not enough jurisprudence to be able to provide a clear or clear perspective on the evolutionary process. In addition, casuistry is brutal. Sometimes it seems that judges, in order not to complicate existence, condemn the legal entity and leave the individual, sometimes the opposite happens. But the main thing is that the judiciary is responsive. In the first phase, since 1983, the first judgment given by the Supreme Court is in 1990, ie after seven years. From that moment we went to punishment in a year. And now the annual trend is 1,200 annual convictions and barely 300 acquittals.
Do you see more awareness in this regard from companies? It is companies that have the greatest impact on all environments, as he says in his book.
In one way or another, most companies have activities that have an impact. My impression is that there was some impact at the beginning, we had a pretty strong approach with the first proposal, which was to convince a large multinational company that was state-owned at the time. [Endesa]. But then we see that the business context has softened.
what does it mean
For example, in Pavlov’s case [un procedimiento sobre contaminación en una zona en Rusia] This is an administration that has not used its authority to restore order. If he had behaved in this way, he would not have degenerated, and we see this a lot. The first thing that worries me is the contrast between the right to do business and the right to the environment, which is also not a fundamental right in Spain. I tend to favor the perspective because the jurisprudence of the Court of Justice of the European Union in many cases leans towards an ecological perspective rather than a strictly economic one. and the European Court of Human Rights (ECtHR), from Fredin v. Sweden [de 1991] It also clearly prioritizes the environment over corporate interest.
Would the environment change if it were considered a fundamental right?
Hierarchically, it will acquire greater importance and be more considered. For example, Ecuador’s constitution legitimizes nature rather than treating it as a fundamental right. At the Advisory Council of European Prosecutors, we prepared a report last year in which we set out a code of conduct for all prosecutors in the field of environmental protection and included principles such as the possibility of legitimizing nature.
In his book, he says that “more often than not” companies’ complex organizational charts allow them to evade responsibility and avoid possible sanctions. Is there still impunity for companies?
This should not surprise you. Anyone who may be criminally liable tries to avoid it. In addition, we have an unwritten principle in this country, which is the defendant’s right to lie. In other words, what they are doing is exercising a right, although it is one thing for an individual to exercise that right and another for the entire company. First, because the potential for environmental harm that a company can produce is, in theory, greater than for individual harm.
In recent years, there has been a proliferation of products or consumer goods that are defined as green, non-polluting. This is what is defined as green washing. Is more demanding regulation needed to avoid public confusion? Ultimately, sometimes, a shadow of doubt appears over the whole green product.
It is clearly not well organized. I imagine that will happen eventually. With this type of initiative, confusion is communicated to the public by offering something environmental, which may even be anti-ecological.
Did the 2018 Financial Disclosure and Diversity Act miss him?
I do not know. I have no formed opinion. But the body asks me not to legislate much more on the environment. There are approximately 20,000 environmental administrative regulations in Spain.
In the previous decade, we experienced a wave of illegal construction that resulted in over a million convictions. But the memory of the prosecutor’s office emphasizes the difficulties of carrying out the demolition of illegal buildings. Why is it so difficult?
We are trying to make our contribution from the point of view that the issue of enforcement is taken up by the prosecutors [de las sentencias en los casos de demoliciones]. We have a problem that when this prosecutor’s office was created, everything seemed logical, correct, reasonable and coherent. But with the passage of time we realized that we were completely lacking. Because, for example, I can’t order the prosecutors’ offices that the environmental prosecutors undertake to enforce the environmental penalty. We have a functional capacity for prosecutors, but not an organic one.
One of the most paradigmatic examples is El Algarrobico. Work stopped in 2006, 17 years ago, but it’s still there on the beach. Doesn’t that create a certain sense of impunity?
Obviously, it would be much better if it collapsed, and we recognize that on a daily basis. Now, it would be a bummer if that worked, which it didn’t. Rather, there is a form of sanction because there is a severe economic investment that is paralyzed. It’s not that I’m an optimist or a pessimist, I’m trying to be completely objective. But one needs to know what this extraordinarily new issue provides. We must be realistic.
He stated in other interviews that waste treatment is one of the “main concerns” of the prosecutor’s office. because?
Historically, this is a topic that has not been given much importance. But there was a time when it began to be regulated by very strict legislation. And, as a result of this legislation, many countries have stopped accepting waste that is returned. That is, we have a problem that they can no longer be sent [los residuos], that they returned it and you have to manage it, which is expensive. And there are many companies that look at it strictly from a business perspective.
This is difficult to deal with as landfill fires start and the legislation remains as it is. At one time, we were even asked to draft a short regulation on this type of fire, which was processed, but remained in boron water. These are approaches that have an important business component, and of course, the passage of time and the evolution of events will introduce more stringent elements in terms of treatment.
Last summer, he sent a resolution to the prosecutor’s office against the background of the “boom” of prefabricated houses. What problem did he find?
It’s crazy. We issued a press release denying the existence of a legal vacuum. There is no legal loophole, everything is crystal clear: prefabricated houses are subject to planning permission and further control. Since the beginning of this millennium, criminals have been sentenced and more and more are being convicted, but [algunas empresas que ofertan estos productos ] They don’t want to understand it.
How do low emission zones work? Is it useful to use the criminal process in the most serious cases of non-compliance?
We had to shut it down because the Supreme Court said it was an ordinance [del Ayuntamiento de Madrid, uno de los primeros consistorios en regular esas zonas] was void due to certain formal deficiencies. Nothing can be done anymore because the administrative base has failed. Again, there is a legal basis [la Zona de Bajas Emisiones, que entró en vigor en diciembre de 2021] And what was done was to train the local police, because their competence should prevail when entering these areas illegally. There are 149 cities that have to meet their low-emissions commitments pending European regulations.
So we control 40 million cars. It can be done and we are checking. Obviously, from the moment it becomes clear that criminal proceedings are possible, people’s attitudes are expected to be more controlled and cautious in this regard, and there is also expected to be less entry into places where they are not. may enter where entry is unlawful.
Source: El Diario
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