NAMERA I KRAJNJA NEPAŽNJA KAO ELEMENTI BIĆA KRIVIČNIH DELA PROTIV ŽIVOTNE SREDINE
Intention and Serious Negligence As Elements of Criminal Offenses Against the Environment

Summary/Abstract: A healthy environment is the subject of continuous attention in almost all forms of human activity: from civic activism, through various development strategies, to legal regulation and the sanctioning of violations of the rights to healthy water, air, soil, flora, and fauna. Protection through criminal law is an important segment in this regard, ranging from “classic” environmental violations and endangerment, such as pollution, to those forms that take environmental crime to a “higher level” and make it profitable. One of the reasons contributing to this is the inefficiency of criminal justice mechanisms, as well as the ineffectiveness of penalties when they have been imposed. This was also one of the motives for adopting Directive 2024/1203 on the protection of the environment through criminal law. In addition, some of the key issues of criminal law doctrine can be observed almost paradigmatically precisely through the example of environmental criminal offenses. This primarily refers to certain substantive-law dilemmas concerning the subjective elements of these criminal offenses; then the concept of liability of legal persons for criminal offenses, whose potential may be realized precisely in the field of environmental offenses; and also the limits and justification of a criminal law response in this area, especially with regard to its relationship with other measures, such as administrative, civil, and other penal-law measures. The Directive and international instruments mentioned above mainly use the notions of intention and serious negligence as subjective components of criminal offenses. This is a dominant feature of the Anglo-Saxon legal tradition, whose structure of the general concept of a criminal offense is somewhat different from the continental European one. Nevertheless, the subjective element is singled out as a separate element, whether through the so-called mens rea component or through the concept of culpability. Roughly speaking, intention and serious negligence, as subjective forms provided for by the Directive, would correspond to intent and negligence in domestic law. However, the assumption is that they overlap only in certain respects and that it is not justified to equate them too readily. At the same time, the Directive contains a provision referring to the interpretation of these elements under the rules of national law, which, with certain specific features, nevertheless relativizes this hypothesis. Accordingly, the focus of this paper will be on analyzing these subjective elements on the basis of environmental criminal offenses and the meaning of the terms prescribed by Directive 2024/1203. In addition, the paper seeks to examine the possibilities of implementing these provisions in domestic law, while also pointing to the capacity of the existing provisions of the Criminal Code in this area. Furthermore, an attempt will be made to formulate certain practical guidelines for understanding and applying the rules on intention and serious negligence, with a view to proving them more efficiently.

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