With the increasing public awareness of environmental problems, stricter laws and regulations for protecting the environment have been introduced in Germany in recent years. In this context, public officials working for environmental authorities are at particular risk of criminal prosecution. If such a public official violates their duties, for example, by issuing faulty permits, it is sufficient for criminal prosecution that this violation has been committed negligently.
An omission is particularly relevant in practice and offers the most significant risk of possible criminal liability. If, for example, the public official fails to withdraw the unlawfully granted permit for environmentally hazardous installations, or if the authority does not intervene in offences against the environment, although it would be obliged to do so, this constitutes an omission relevant under German criminal law.
Schlun & Elseven Rechtsanwälte offers expert and committed legal assistance to provide our clients with the support they need in such a situation. As a multidisciplinary full-service law firm, we can provide expert service in all matters relevant to German environmental law. Whether assisting you in court proceedings, developing a suitable environmental management system for your company or answering any environmental law questions that may arise, our lawyers will be at your side with their excellent expertise and many years of experience. We stand up for you to protect your rights and interests.
Environmental Law for Private Clients
Private clients necessarily have different interests in environmental law than companies. In addition to altruistic motives, they are often concerned with protection against third parties’ interference or matters affecting their own property or garden. The following problems occur frequently:
- Street noise,
- odours and noise from restaurants,
- boundary planting,
- compost and bonfires,
- water well,
- railway noise.
Our lawyers will advise you in detail about your legal options and work with you to find a legal solution that is tailored to your needs.
Criminal Liability of Public Officials within an Environmental Authority
A potential source of danger of criminal liability can arise from the performance or non-performance of various acts within the activity as a public official. Here it is necessary to differentiate between possible groups of cases and to consider the resulting criminal liability under the German Criminal Code (StGB). The German legal system does not provide for a particular criminal offence for erroneous decisions within an environmental authority, so the general provisions on so-called perpetration and participation govern the criminal liability of public officials. Whether a public official is liable to prosecution as a perpetrator or participant depends on their committed offence.
Special Offences
If the offence committed is a special offence, only the person addressed in the offence can be the perpetrator of that offence. This is not the case with general offences. Special offences are those whose perpetrators can only be persons specified in the facts. The norms of environmental criminal law, for example, address plant operators. This is a so-called special offence, as only the addressee of this administrative duty can be liable to prosecution. Therefore, a possible criminal liability of the public official comes into consideration both as the perpetrator of a special offence and as its participant. As a rule, however, the public official lacks the quality of a perpetrator. So-called operator cases are the exception. These are cases in which the municipality itself is the operator of an environmentally harmful facility. Therefore, a public official’s perpetration is usually ruled out.
General Offences
A general offence is an offence that any person can commit. General offences are the rule in criminal law. Whether the public official is to be punished as a perpetrator or participant in a general offence depends on which general offence they have committed and how the specific individual case will be assessed under German criminal law. The three most common groups of cases are:
- Issuance of an unlawful authorisation by a public official,
- failure to withdraw an unlawful authorisation,
- failure to intervene against unlawful environmental damage by third parties.
Commission by Omission, Section 13 StGB
According to Section 13 StGB, criminal liability by omission can often arise in the last two groups of cases. Regarding the criminal liability of public officials for omissions, it is mainly the failure to remove unlawful authorisations that is relevant. In this context, whether a so-called guarantor’s position exists on the part of the public official is disputed. A position of a guarantor based on inherent rights exists if the public official has unlawfully created a danger through a prior endangering act and is obliged to avert the threat retrospectively if there is a dangerous connection between the risk created and the legal asset threatened. Accordingly, since a danger to environmental goods was created due to the granting of an unlawful environmental permit, the public official would also be responsible for eliminating the danger by withdrawing the unlawful permit.
Whether such a position of guarantor exists must always be assessed on a case-by-case basis. The assessment of the criminal liability of public officials under environmental criminal law is a highly complex matter and requires a comprehensive examination by our experienced legal experts in every case.
Schlun & Elseven: Legal Assistance in German Environmental Criminal Law
The law firm Schlun & Elseven assists private and business and private clients as public officials in defense of German environmental criminal law. Our advice includes an examination of the legal framework applicable to the alleged offence. In doing so, we will explain all relevant laws, ordinances and regulations and present the nature of the allegations from a legal perspective. To exonerate you from the accusation of a criminal offence, we use our skills in conducting investigations and collecting evidence. Our lawyers examine all the necessary documents and records, interview witnesses and experts and consult specialists on technical aspects of evidence. Once we have the information required, our team can devise an appropriate defense strategy.
In addition, our team can advise you on dealing with the media and public relations concerning such cases. If left unchecked, media reports can significantly damage the reputation of a company or a person in the public eye. By engaging our legal counsel, your company will get the protection to minimise the negative impact efficiently.
Practice Group: Our German Criminal Defense Lawyers
Practice Group:
Our German Criminal Defense Lawyers
Contact Schlun & Elseven Rechtsanwälte
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