THE SIGNIFICANCE OF DAMAGE – A CRIMINAL ACT AS PART OF THE ILLEGAL LOGGING OF TREES AND SHRUBS

Abstract

The paper deals with the criminal act provided for in Article 303 of the Criminal Code of Georgia for unlawful felling of trees and bushes, the amount of damage caused to the environment, the procedure for its calculation and the significance of the damage. It will be discussed what constitutes and how the essential component of the disposition of the Article – substantial damage is calculated. Where is the line drawn between criminal and administrative responsibility? What kind of damage can be caused by the illegal cutting of trees and shrubs, and what are their implications for investigations, prosecutions, and courts? The paper is novel since other scientific works do not identify the subject of our study, and there are few studies of damage in textbooks or comments to the private part of the Criminal Code. The damage caused to the environment differs from the damage imposed for crimes with other material components provided by the criminal law code; its amount decides the basis of administrative or criminal law in a specific case. Therefore, the scientific study of the issue has practical significance. The scientific paper aims to clarify the essential component for the composition of Article 303 of the Civil Code – the study of the issue of compensation for damage and to create a correct understanding of the problematic issues raised around it.

Keywords: environment, damage, illegal logging, trees, and shrubs.

Introduction 

Among the world’s most important tasks, special priority is given to environmental protection. Human impact on nature is increasing daily, especially today, in the context of continuous hostilities in the region, causing dire ecological consequences. The intensive human impact on nature manifests in the irrational consumption of natural resources and their illegal extraction and destruction. The explosion of the “Kakhovka HPP” dam in Ukraine, which was accompanied by irreversible processes, namely the destruction of water, soil, vegetation, and animals, can be considered as a face of large-scale destruction of nature, which was assessed as ecocide.[1]

States and their leaders should assume more responsibility as soon as possible to preserve land, vegetation, and water in their natural state because this is the only way left, shortly, to maintain a sustainable climate and, therefore, to avoid the ecological disasters that threaten the world in the form of global warming. To this end, the researchers have developed both a short-term and a long-term action plan, which includes a number of preventive, protective, and restoration measures.[2]

Harmonization of environmental protection and rational use of nature with ecological, economic, and social interests of the state and society is a priority for each state. However, the problem of environmental protection has long gone beyond the borders of a particular country, and today, it is presented as an international challenge. All democratic states aspire to engage in international legal protection of the environment and preserve nature, thereby maintaining a decent quality of life in the world.

In this regard, Georgia pays special attention to synchronising criminal and other legislation with international legal norms. In the Criminal Code of Georgia, a separate Title is given to a crime against the rules of environmental protection and use of natural resources.[3] The Title consists of one chapter and 26 Articles.[4] We agree with the opinion of the authors that the subject of the crime against the rules of environmental protection and use of natural resources are objects of natural origin and existing in the environment, which were created naturally and, accordingly, no human or material resources were spent. For example, they are air, land, water, plants, animals, and others.[5] At the same time, we note that in addition to natural resources, the subject of crimes against the rules of environmental protection and the use of natural resources can be such resources on the territory of municipalities in planting, growing, developing, cultivating of which human and material resources were expended (e.g., parks, windbreaks, gardens, etc.).[6]

The scientific work discusses a specific criminal act from the part of crimes against the rule of environmental protection, a mandatory component of the disposition on the illegal felling[7] of trees and shrubs: the essence, amount, method of calculation and significance of causing substantial damage.

This Article has undergone many changes over the years. Especially noteworthy is the cascade of changes implemented since 2018, which was caused, on the one hand, by the upward trend in crimes against the environment in 2017,[8] and, on the other hand, by considering the amount of damage caused to the environment.[9]

The work also considers whether the legislative changes made in the Article had positive and negative consequences. Have the new rules ensured a reduction in environmental damage, have they contributed to the process of sustainable forest development, and have they reduced cases of illegal forest use? In the study, special attention is paid to the rules for calculating damage, the type, amount of damage and its compensation, as well as its significance in the criminal case.        

Legislative Changes Related to the Article

In the current Criminal Law Code, the Article of a criminal act for illegal cutting down of trees and bushes has undergone four legislative changes. Initially, the illegal felling of trees and shrubs was punishable under criminal law in case of causing significant damage through negligence;[10] after the amendment, the word “negligence” was removed from the disposition of the Article, and accordingly, the subjective side of the crime under consideration was defined as an intentional crime. Moreover, a number of authors partially criticize this change and believe that with this change, it will no longer be possible to initiate criminal prosecution under Article 303 of the Civil Code against those who illegally cut down trees and shrubs and caused significant damage through negligence.[11] It should be noted that logging is an active and intentional action, when the person(s) by prior intention, with the appropriate tools or equipment, arbitrarily goes to cut down a tree or bush. They know in advance that they do not have the proper permission/license to cut down trees and that logging any tree or bush entails some kind of damage, which we will discuss in more detail in the next part of the paper. Accordingly, we believe that the subjective side of the corpus delicti (composition of the crime), which is expressed in the premeditation, does not allow for the possibility of damage due to negligence. We agree with the opinion of the authors that this change was justified and necessary since the original version of the disposition meant criminal liability in case of causing significant damage through negligence as a result of illegal felling of trees and shrubs, and accordingly, excluded the implementation of the norm in the conditions of damage caused by an intentional act.[12]

In connection with the amendments to the legislation in 2018, the disposition and structure of the Article have been substantially changed. In particular, for the qualification of the action, the amount of damage caused as a result of unlawful logging of trees and shrubs did not matter in cases where the illegal felling will be committed by a person held administratively liable for: illegal cutting and damage to woody plants within the borders of protected areas and their territorial-functional zones,[13] re-manufacturing of timber in the territory of the state forest without the relevant documents stipulated by the legislation of Georgia,[14] re-damage, arbitrary cutting and destruction of green plants in the territory within administrative borders of the municipality (except the privately owned territory)[15] and re-damage, unauthorized felling and/or removal of green plants within administrative borders of Tbilisi Municipality (including damage or arbitrarily felling of green spaces in such a way that it is impossible to determine the type of damaged or arbitrarily cut green plants), on the facts of violation of the rules of maintenance and restoration of green plants.[16] With the same change, Parts Three and Four were added to the Article, according to which illegal felling of trees and shrubs listed in the Red Book of Georgia, on the lands of the state forest fund or protected areas, [17]has been regulated as a criminal offense toward a person who is an administratively charged with the fact of illegal felling and damage to woody plants within the established boundaries of specially protected areas and who has repeatedly committed the specified action.[18] It should be noted that the sanction imposed under Part 4 of the Article classified it as a serious crime.[19]

In 2020, the third Part of the Article was changed, and in the disposition, the phrase “on the lands of the State forest fund or protected areas” was replaced by the sentence “in the forest or protected area of Georgia”.[20]

In 2021, the first Part of the Article was amended,[21] and the fact of repeated illegal felling of trees and shrubs in the windbreak (field protection) strip was added to the list of administrative violations.[22]

Over the years, the main goal of the changes implemented in the Article was to strengthen the fight against the facts of illegal logging and to minimize the mentioned criminal actions. But the statistics show that the legislative changes implemented to achieve this goal have not been effective, and crime has been declining over the years, although the indicator remains noteworthy.[23]

The Essence and Significance of Damage in the Disposition of the Article 

Up to 40% of the territory of Georgia is covered with forest,[24] therefore, it should be said that it is more accessible than other natural resources spread in Georgia, and due to its scale, it is a less protected good. Considering that wood can be used for many purposes, and it is more profitable to obtain it with lower costs, unfortunately, unlawful logging of trees and shrubs in Georgia has become a widespread crime.

Illegal felling of trees and bushes is a criminal act with a material component, which implies the necessity of a material result at the time of its commission, and this means harming the legal good (for the given Article, for the environment).[25] The subject of the crime is a person who has reached the age of 14, the subjective side of the crime is expressed in the intention, and the commission of this crime through negligence is excluded since the Article does not have a proper clause.[26] The object of the crime is any tree or shrub for which a special license or permit is required to be cut, while the objective side implies an active action aimed at cutting a tree or bush, and it does not matter how it will be carried out (e.g., with axe, pickaxe, electric saw or other). A prerequisite for the qualification of the action is the confirmation of the fact of damage and the calculation of the amount of this damage. In the Criminal Code of Georgia, for the purposes of a particular chapter, the amounts of damages are regulated in the notes of the Article itself. For example, for an economic criminal Chapter, significant damage is considered when the value of an item exceeds 150 GEL and a large amount – over 10,000 GEL.[27] For money laundering, an income from thirty thousand to fifty thousand GEL is considered a large amount, and income over fifty thousand GEL is considered a particularly large amount.[28] For tax evasion, a large amount is considered when the amount of tax to be paid exceeds one hundred thousand GEL, and especially a large amount when the amount exceeds one hundred and fifty thousand GEL.[29] There is no similar legal clause for the criminal Chapter against the environment. It should be noted that in 2011, with the amendments made to the Criminal Code, for Chapter purposes, the amount of significant damage is determined in accordance with the subordinate normative act of the Government of Georgia.[30] Moreover, in the event of a crime stipulated by Part One of Article 303 of the Civil Code, a person would not be held criminally liable If, within 45 calendar days from the date of receipt of the claim for compensation for environmental damage, he would pay the amount due or within the same period, an agreement regarding the damage to the environment would be signed with him.[31] This entry of the law was cancelled in 2013.[32] Accordingly, the Criminal Code, for this Article, did not clarify what amount would be considered significant damage. Unauthorized felling of even one tree or bush will certainly cause some damage, but how should we determine and distinguish whether the specified damage is significant or not, that is, whether it constitutes the basis for criminal liability, and whether it is insignificant, that is, whether it represents the basis of administrative responsibility. Some authors believed that the court should decide the issue of significant damage.[33] We cannot agree with this opinion since, before the court’s decision, to initiate criminal prosecution against a person for the composition of the crime and, accordingly, for the prosecutor to issue a decision to charge the person as an accused, a document on determining/confirming the damage is decisive evidence. The burden of proof is on the accuser, as well as the duty to substantiate the admissibility of evidence of the accused’s side and the inadmissibility of evidence of the defense.[34] Logically, the question arises: based on which document the damage caused by the illegal felling of trees and shrubs was and is being carried out today in Georgia. The mentioned subordinate normative act has been changed many times over the years.[35] The amount and significance of substantial environmental damage was determined by the current normative act. The value of the damage is determined by the illegal felling of woody plants and/or shrubs, which leads to the cessation of their growth and vital function. In addition, the specified action, which is manifested in the illegal cutting, uprooting, or destruction of the plant, should cause damage to the environment for 1000 GEL or more.[36] To determine the amount of damage, the amount of illegally felled trees and shrubs, the type of wood, its location and others are important.[37] If, as a result of the calculation, the amount of damage is found to be less than 1000 GEL, in such a case, the person will bear only administrative responsibility.

As we mentioned above, the amount of damage does not matter in cases where the person under administrative penalty commits the illegal cutting of trees and bushes again. Although the damage may not amount to 1000 GEL, a criminal case will be initiated against the person since such a legal clause exists in the disposition of the Article.

The crime under Article 303 of the Criminal Code of Georgia falls under the investigative jurisdiction of an investigator of the Ministry of Internal Affairs of Georgia.[38] The calculation of environmental damage is not within the investigator’s competence. In a fact of illegal felling of trees and shrubs is discovered, appropriate calculations are made by the State Sub-Agency Department of the Ministry of Environmental Protection and Agriculture of Georgia – Department of Environmental Supervision and/or employees of the National Forestry Agency of the same ministry. A written document on the calculation of damages is attached to the criminal case as evidence and represents an important act for a specific case, which confirms the amount of damage and that this damage is significant.

The issue of compensation for damage to the environment, of course, does not change the criminal qualification of the action, but, as a rule, it is considered by the court when making the final decision on the case.

Conclusion

Summing up, it should be noted that the necessary circumstance of the offense of illegal felling of trees and shrubs – the calculation of damage, is carried out by a subordinate normative act approved by the government decree. Damages are calculated by an authorized person of the Ministry of Environmental Protection and Agriculture of Georgia within the scope of his/her competence and in the case of referral by investigative bodies. The amount of significant environmental damage is defined as 1000 GEL or more. Accordingly, if the amount of damage is only 999 GEL or less, the criminal case and/or criminal prosecution are not initiated and/or terminated against the person. In addition, an administrative fine will be imposed on the said person. In contrast to the clauses imposed on other categories of crimes, the Criminal Code does not impose a specific amount of damage in the event of illegal felling of trees and shrubs, which often creates uncertainty among those concerned. We believe that to avoid uncertainty, the amount of damage should be clearly regulated in the Criminal Code for the Chapter and/or specific Articles of the crime against the environment.

In addition to the above, to effectively combat illegal logging and to prevent violations, it is advisable at the legislative level to impose such additional obligations for those convicted under the mentioned Article, along with the main type of punishment, such as, for example, the planting and taking care of trees in proportion to the damage caused to the environment.

Bibliography

1. Dvaladze I., Tumanishvili G., Gvenetadze N., Case Study Method in Criminal Law, Tb., 2015.


2. Urushadze T., Loria V., Ecological Law, Tb., 1999.


3. Lekveishvili M., Mamulashvili G., Todua N., Mumladze D., Private Part of Criminal Law, first edition, (book II), Tb., 2005.


4. Lekveishvili M., Todua N., Mamulashvili G., Private Part of Criminal Law, fifth edition, Tb., 2017.


5. Turava M., Criminal Law. Overview of the General Section. With Attached Test Samples and Case Study Method, eighth edition, Tb., 2010.


6. Hallam J, and others, Collapse of critical Ukrainian dam sparks region-wide evacuations. Here’s what we know, 2023, <https://edition.cnn.com/2023/06/06/europe/ukraine-nova-kakhovka-dam-breach-intl-hnk/index.html> [Last accessed: 15.06.2023];


7. Dinerstein E. and others, A Global Deal for Nature: Guiding principles, milestones, and targets, SCIENCE ADVANCES, 2019, Vol 5, Issue 4, <https://www.science.org/doi/10.1126/sciadv.aaw2869> [Last accessed: 06.23];           

Legislative Acts

1. The Criminal Code of Georgia, 1999.


2. Code of Administrative Offenses of Georgia, 1984.


3. Law of Georgia on Amendments to the Criminal Code of Georgia, 2020, No 5963-ss.


4. Law of Georgia on Amendments to the Criminal Code of Georgia, 2021, No. 971-VIms-Xmp.


5. Law of Georgia on Amendments to the Criminal Code of Georgia, 2013, 472-rs.


6. Criminal Procedure Code of Georgia, 2009


7. Calculation and Compensation of Damages Caused to the State Forest Fund as a Result of Illegal Forest Use. Approvedby the Order 99 of 2002 of the Minister of Environmental and Natural Resources Protection of Georgia.  


8. Methodology for Calculating Damage to Environment. Approvedby the Order 538 of 2006 of the Minister of Environmental and Natural Resources Protection of Georgia.


9. Methodology for Determination (Calculation) Damage to Environment. Approvedby the Order No. 2 of 2011 of the Minister of Environmental Protection and Natural Resources of Georgia.


10. Methodology for Determination (Calculation) Damage to Environment. Approvedby the Order 54 of 2014 of Georgian Government.


11. On Determining Investigative and Territorial Investigative Jurisdiction of Criminal Cases, Order 3 of 2019 of the General Prosecutor of Georgia, Appendix, Paragraph No.1.

Electronic Resources

1. Statistics of registered crimes in 2017, column 68 of the table, link: <https://www.geostat.ge/media/16776/danaSauli-2017.pdf>, [Last accessed: 06/12/23].


2. In December 2017, for the Prime Ministerial Candidate’s report to Parliament, <https://sputnik-georgia.com/20180202/xe-tyis-ukanono-gacexva-mTavrobis-praqtikuli-nabijebi-239164563.html> [Last accessed: 12.06.23].


3. Statistics of registered crimes, 2018-2022, columns 68-69 of tables, https://www.geostat.ge/ka/modules/categories/679/siskhlis-samartlis-statistikis-ertiani-angarishi , [Last accessed: 06.23].

Footnotes

[1] Hallam J, and others, Collapse of critical Ukrainian dam sparks region-wide evacuations. Here’s what we know, 2023,  <https://edition.cnn.com/2023/06/06/europe/ukraine-nova-kakhovka-dam-breach-intl-hnk/index.html> [Last accessed: 15.06.2023].

[2] Dinerstein E. and others, A Global Deal for Nature: Guiding principles, milestones, and targets, SCIENCE ADVANCES, 2019, Vol 5, Issue 4, <https://www.science.org/doi/10.1126/sciadv.aaw2869> [Last accessed: 12.06.23].

[3] The Criminal Code of Georgia, 1999, Part Ten.

[4] Ibid., Chapter XXXVI, Offenses against the Environmental Protection Act.

[5] Lekveishvili M., Todua N., Mamulashvili G., Private Part of Criminal Law, fifth edn., Tb. 2017, pp. 171-172.

[6] Resolution No. 54 of 2014 of the Government of Georgia on Methodology for Determining (Calculating) Damage to Environment, Art. 6.

[7] Criminal Code of Georgia, 1999, Art. 303.

[8] Statistics of registered crimes in 2017, column 68 of the table, <https://www.geostat.ge/media/16776/danaSauli-2017.pdf>  [Last accessed: 06/12/23].

[9] In December 2017, Giorgi Kvirikashvili, speaking before the parliament as a candidate for the position of prime minister, declared war on illegal logging. According to official data, the damage caused to the environment of Georgia amounted to 8.5 million GEL in 2017, and more than 1.7 thousand cases of violation of forestry legislation were detected (It is meant as a set of facts of criminal law as well as administrative violations. Author’s note). <https://sputnik-georgia.com/20180202/xe-tyis-ukanono-gacexva-mTavrobis-praqtikuli-nabijebi-239164563.html>  [Last accessed: 12.06.23].

[10] Criminal Code of Georgia, 1999, Art. 303. (edition valid until June 30, 2000).

[11] Lekveishvili M., Mamulashvili G., Todua N., Mumladze D., Private Part of Criminal Law, first edn., (book II), Tb., 2005, p. 43.

[12] Dvaladze I., Tumanishvili G., Gvenetadze N., Case Study Method in Criminal Law, Tb., 2015, p. 85.

[13] Code of Administrative Offenses of Georgia, 1984, Art. 64¹, Part.1.

[14] Ibid., Art. 66, Part 2.

[15] Ibid., Art. 151, Part 2.

[16] Ibid., Art. 151¹, Part 2.

[17] Criminal Code of Georgia, 1999, Art. 303, Parts 3-4.

[18] Code of Administrative Offenses of Georgia, 1984, Art. 64¹, Part 2.

[19] Criminal Code of Georgia, 1999, Art. 12, Part 3.

[20] Law of Georgia on Amendments to the Criminal Code of Georgia, 2020, No 5963-ss.

[21] Law of Georgia on Amendments to the Criminal Code of Georgia, 2021, No. 971-VIms-Xmp.

[22] Code of Administrative Offenses of Georgia, 1984, Art. 64², Part 3.

[23] Statistics of registered crimes, 2018-2022, columns 68-69 of tables,  <https://www.geostat.ge/ka/modules/categories/679/siskhlis-samartlis-statistikis-ertiani-angarishi>  [Last accessed: 13.06.23].

[24] Urushadze T., Loria V., Ecological Law, Tb., 1999, p. 214.

[25]  Turava M., Criminal Law. Overview of the General Section. With Attached Test Samples and Case Study Method, eighth edn., Tb., 2010, p. 76.

[26] Criminal Code of Georgia, 1999, Art. 10, Part 4.

[27] Ibid., Note to Article 177.

[28] Ibid., Note to Article 194.

[29] Ibid., Note to Article 218.

[30] Ibid., Note to Article 291, Part 1 (edition valid until May 15, 2013).

[31] Ibid., Note to Article 291, Part 2 (edition valid until May 15, 2013).

[32] Law of Georgia on Amendments to the Criminal Code of Georgia, 2013, No. 472-rs.

[33] Lekveishvili M., Mamulashvili G., Todua N., Mumladze D., Private Part of Criminal Law, first edn., (book II), Tb., 2005, p. 42.

[34] Criminal Procedure Code of Georgia, 2009, Art. 5, Part 2; Art. 33, Part 1; Art. 72, Part 3.

[35] For example: in 2002-2006, there was a resolution No. 99 of the Minister of Environmental and Natural Resources Protection of Georgia on Calculation and Compensation of Damage Caused to the State Forest Fund as a Result of Illegal Forest Use; in 2006-2011 – a resolution  No. 538 of the Minister of Environmental and Natural Resources Protection of Georgia on Methodology for Calculating Damage to Environment; in 2011-2014 –a resolution No. 2 of the Minister of Environmental and Natural Resources Protection of Georgia on Methodology for Determining (Calculating) Damage to Environment, and from 2014 to the present technical regulation No. 54 of Government of Georgia on Methodology for Determining (Calculating) Damage to Environment.

[36] Resolution No. 54 of 2014 of the Government of Georgia on Methodology for Determining (Calculating) Damage to Environment, Art. 5, Part 6.

[37] Ibid., Appendix 10.

[38] Order No.3 of the General Prosecutor of Georgia on Determining of the Investigative and Territorial Investigative Jurisdiction of Criminal Cases, 2019, Appendix, Paragraph No.1.