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Ironic efficiency of the People’s accusation in environmental matters

May 22, 2013
Ironic efficiency of the People’s accusation in environmental matters

Without any doubt today the harm to the environment is not only of a regional or national interest, but of a global interest, our planet lost already three quarters of the temperate forests and half of the tropical, the Word Fund for the Nature has warned that if we continue with the current rhythm of excessive cutting, the major part of the 3 million hectares of the forests that cover a third of the land surface, will disappear for the year 2040.

That is why currently the countries have the strong premise of redesigning their development patterns and adopting new strategies that prohibit to reorient the use of the natural resources in a form harmonic with the progress and social subsistence.

Mexico, as part of the international environmental concert, has participated of the Conference of the United Nations on the Human Environment held in 1972 in Stockholm Sweden, Conference of the Environment and Development, at Rio de Janeiro Brazil in the year of 1992, the latter being the summit of greatest importance currently in environmental matters, due to the number and diversity of the actors.

In the national sphere and in regards to the legal, since the Constitution of 1917, in its article 27 the protection to the environment was already provided, however, the first true legislative effort in this matter was the Federal Law to Prevent and Control Environmental Contamination of March 23rd, 1971, wherein the authority of dictating measures to prevent and fight environmental contamination were provided.

We currently have the General Law of Ecological Equilibrium, which was sent to the Congress of the Union by the President Miguel de la Madrid on the past November 04th, 1987 and published on February 28th, of the following year, the President textually expressed “With this legislation I have the certainty that Mexico will strengthen its ecological policy and will have better instruments to preserve its natural resources and elevate the quality of life of the population”.

Since then, the mentioned legislation has contemplated in its article 189 the power of any person, social group, ONG, association or company, to report before the corresponding environmental authorities, any act, fact or omission that produce or may produce an ecological imbalance or damages to the environment or to the natural resources, such complaint that given the previous preamble expressed and since the environmental authorities are not omnipresent, it should be a resource accessible, trustworthy, safe and that would encourage its filing.

Such is the case, that just a few days ago at the offices of Rincón Abogados an honest citizen was assisted, victim of the inefficiency with which the processing of the People’s accusations are carried out.

Since very little citizens now a day report, and conscious of the need and obligation of every Mexican of contributing with the ecological care, he detected within his property that someone, without his consent and without permit from the authorities, was cutting trees illegally, therefore he decided to exercise the mechanism mentioned by article 189 of the environmental Legislation and to file the People´s accusation before the corresponding authorities.

Before such situation, the dear reader asks itself, did the accuser acted correctly? Or should he had taken particular measures without informing the authority? It is indisputable that the environmental protection is a duty of general interest, which we all have the obligation of protecting and reporting its noncompliance, regardless if the direct damage is given in our property or in the property of our neighbor, since in accordance to article 4°, as well as 27 of our Political Constitution of the United Mexican States, the right to a safe environment is derived on one part and on the other part, the obligation of the State of creating mechanisms that propitiate the preservation and restoration of the same.

Thus, that once the People’s Accusation is admitted, the Federal Board of Environmental Protection orders an inspection visit in terms of article 160 of the Law of Sustainable Forest Development, which obligates the owners or possessors of forest land to facilitate the authorized staff the visits, since in the contrary, rigorous sanctions will be applied.

That is why, the accuser, interested in boosting the accusation filed and in his capacity of owner, directly assists the inspection visit taking the inspectors up to the place where the acts are took place, as follows, the corresponding minute is drafted, wherein the complainant literally with his own hand writing sustains:

“This inspection I imagine is in consideration to a report that I made at the State Board of Environmental Protection, since some time ago I noticed that persons unrelated with my property, were cutting the trees for the use of posts for which this official communication does not have my name nor does it mention the report that I made, I have the doubt that if I am consider the suspect for which my desire is to discover the persons who did the cutting in order that the cutting does not continue”

As derived from the Minute, the reported by the owner was true, that is, trees were being cut illegally within his property, including the strong belief of the accuser- owner is expressed of assisting the Board despite of not knowing the responsible, as well as his fear of being indicated as the suspect.

Ironically a summons is issued to that honest citizen who reported the ecological damage made within his property, but this time not as owner or accuser but as “PRESUMED OFFENDER”, in addition of imposing as corrective measure planting 150 trees.

That is, the citizen, that knowing of the existence of acts contrary to the environmental legislation, acts that break the ecological equilibrium and that therefore, decides to use those mechanisms created by the legislator to assist with the environmental authorities, such is the case of the people’s accusation, goes from a citizen, participating and committed, to be the “PRESUMED OFFENDER”.

Without any major elements other than the Inspection Minute wherein the existence of the secret cutting is established, as well as the saying of the owner, a shameful administrative resolution is issued wherein the full responsibility is determined of the accuser, assuring that he indeed obtained a direct benefit and that the acts performed were intentionally, therefore a fine is imposed for the amount of $43,840.00.

Evidently next time he detects acts that break the ecological equilibrium within his property, he will think twice before reporting again to the corresponding authority.

This case, is not the exception, it is the rule, the General Law of Ecological Equilibrium and the Protection to the Environment as well as the General Law of Sustainable Forest Development upon regulating the very important tool such as the “People’s Accusation” do not differentiate between the report filed by a person unrelated to the forest property and the one made by the owner directly, the latter being mainly interested in sanctioning the offender, not only for the environmental deterioration, but for the patrimony detriment.

Such differentiation is necessary before the evident lack of reporting culture in Mexico, since as per data produced by the Head of the Federal Protection Environmental Board, Francisco Moreno, upon starting the National Crusade for the Environment Accusation each year between six and 7,000 reports are received, of which those related with forest cases there totaled 43%.

Let’s image only, that from the around 7,000 reports filed in the past year, how many were filed directly by the owners of the forest properties, which since the law does not the distinguish, they were submitted to the same procedure as in the case mentioned herein, wherein without doing a detailed investigation and without having the necessary elements, the owner of the property is sanctioned even and when he had filed the report that activated the procedure.

Before the evident legislative gap, there is no doubt that while the reporters-owners are continued to be treated in this manner, that is, as a victim and accused at the same time, the citizen participation is discouraged for law enforcement of environmental justice.

It is illogical that if a person decides to report illegal acts, with the eagerness not only of guarding the collective interests, but also for his particular situation as owner, he also guards his personal rights upon being affected by a direct lien to his patrimony, he turns out to be the main suspect of the illegality.

We should not ignore, that the case could be that indeed the owner seeking an economic interest, decides to cut trees secretly, and in accordance to the proposed herein, he files a people’s accusation to try to exempt himself from any responsibility, however, in such case the authority should prove with reliable elements the responsibility of the owner, and not to presume it as it currently occurs.

The legislation of any matter, should always reward the good faith of the citizen participation, creating reliable and efficient mechanisms that encourage and promote the direct link of the population with the State, eradicating gradually the isolated cases of exploitation and illegality, only in this manner, those commitments agreed by the Mexican state in environmental matters will be complied.

Adrián Jiménez Navarro
Litigating Attorney