positive law of environmental responsibility I thank Madam Speaker of the association MIBEKO m have invited that day to make this presentation on positive law Congolese environmental responsibility.
As many of our compatriots face are moved to the waste-related pollution of garbage in our capital on the one hand, on the other hand when I see conservationists outraged because my colleagues apply the rule that freedom is the principle, detention is the exception in certain cases of wildlife brought to them. I can not talk about responsibility in this area if I do not give you the different approaches to environmental law, its contents including that provided by our laws, then the penalties incurred by those who break the laws which we will state in our presentation.
The Environmental Law is to study all the legal rules concerning the protection of the environment in all its landforms, natural and cultural, see for example non-terrestrial space law. As we can see through this definition, there is a right cross which includes many sub-branches:
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those related to elements of the environment: right of air, water law, land law, biodiversity law;
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those related to human activities: the right of hunting, fishing, energy,
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those related to activities harmful or polluting: the right noise, right to sanitation, etc.;
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those related to a particular object: right to the protection of nature, right chemicals, waste law, law sites, historic monuments;
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those related to an economic sector: agriculture, industry etc.We can we account for the extreme technicality of environmental law at the crossroads of goods from other legal disciplines.
Our positive law enshrines in the Constitution of 20 January 2002, the various treaties ratified by our country, the Environmental Code and other laws.
PART 1: THE ENVIRONMENTAL LAW IN THE LEGAL CONGOLESE
A) THE CONSTITUTION
Our constitution of January 20, 2002 was intended in Articles 35, 36, 37, 38 and 39. Indeed, it provides in article 35 that every citizen has a right to decent environment and sustainable and has the duty to defend.
The State shall protect and conserve the environment. I'll go further with Article 36 which states: "The conditions of storage, handling, incineration and disposal of toxic waste and radioactive pollutants from factories and other industrial or craft installed on the national territory are fixed by law. Article 37 of our constitution criminalizes punishable transit, import, storage, disposal, discharge into inland waters and the maritime areas under national jurisdiction, the application in the airspace of toxic pollutants, radioactive waste or other hazardous material from abroad or not. When discussing the notion of crime, we realize that we are criminal. Our constitution defines certain offenses refers to the sentencing law, in this case to the Criminal Code. Many of you will say that the applicable criminal code currently in our country date of Equatorial Africa and French and has not provided the penalties relating to environmental law. We can reassure you since there is a drafting committee of the penal code, which I am sure will find appropriate legal solutions to these environmental issues that concern us all. Meanwhile the victims of damage due to non compliance with legal rules laid down in the environment could enter the civil court to claim damages due to injuries they have suffered. This will depend on the case if the State has failed in its role of protecting its citizens' civil liability is incurred.
Sections 40 and 41 of our constitution provides as follows: " Every citizen has the right to petition the appropriate organs of the state. In case of damage from the administration, the citizen has the right to sue. In addition to the constitution and treaties ratified by the Congo, we have the environmental code.
Given the time allotted, I had a choice of legislation for which I felt they reflect the difficulties we are experiencing in the courts and judicial police officers to suppress those who pollute our environment.
B) LAWS
Act No. 003 / 9 1 23 April 91 on environmental protection covers the protection of facilities, protection of fauna and flora and the protection of the atmosphere. We will focus particularly section 39 of that Act which applies generally to facilities operated or owned by any individual or public or private entity that can be dangerous both for the health, safety, public health etc.. This Act prohibits the deposit and the abandonment of urban waste in conditions such that they can develop the disease vectors that are likely to cause damage to persons and property.
Law No. 48/83 of 21 April 1983 establishes the conditions for the conservation of wildlife exploitation.
Law 16/2000 of 20 November 2000 regarding the Forest Code which aims to establish a legal framework and ensure the sustainable management of forests and forest lands.
Law 13/2003 of 10 April 2003 on water code whose purpose is implementation of a policy to ensure a rational policy on water, prevent the harmful effects of water and fight against pollution.
We also engaged Ordinance No. 22-70 on the territorial sea including pollution of the sea, the exercise of maritime fishing. This order was completed in this area by Law No. 2-2000 establishing the organization of maritime fishing. Finally
Law No. 9-2004 of 26 March 2004 Code field of the state. Congolese legislation through all these laws sought to protect the environment. What did he then provided for violations of these statutory provisions?
PART 2: ACTIONS FOR COMPENSATION AGAINST THE OFFENDER
The offender in these cases must be punished, but unlike the General Penal Code, the finding of crimes and their punishment a special character.
A) ACTIONS MADE BY THE AUTHORITIES CONCERNED
responsibility as I have said previously is that of the person who has committed what the law forbade him to do, but research and detection of crime or their prosecution are conducted by sworn officers of the waters and forests with respect to offenses related thereto, by the maritime authority empowered to do so. For maritime offenses parallel to them, the police officers of the police and gendarmerie are authorized to establish such offenses. These are by minutes or by witnesses. However the decision to prosecute in respect of waters and forests up to the agents involved in the environmental field who have the power to prosecute, it is usually the Secretary General or the Directors of the Central Water Authority and forests in conjunction with the prosecutor. By cons regarding marine fisheries the decision to prosecute belongs to the prosecutor.
From these explanations, we conclude that the Act has made it possible for these different jurisdictions to deal with the offender, this has the consequence that its liability in criminal court is not at all engaged. The government certainly prefer that the transaction they make quick money in their coffers.
It is also worth noting that these people who post illegal behavior are also reprimanded at those jurisdictions that they are forbidden to carry out the activity for which they had obtained the license to the level it has without need to go through the courts.
B) ACTIONS IN THE COURTS
THE RESPONSIBILITY OF THE CRIMINAL OFFENDER
We affirm, however, that the few cases that have been brought before our courts have been tried according to law . The defendants were given sentences which certainly did not always have the consent of those who defend the environment, but we remind them that the judge in a case takes into account all elements of the case to convict the accused.
THE LIABILITY OF OFFICERS IN CHARGE OF THE ENVIRONMENTAL PROTECTION
This responsibility falls to both natural persons and legal entities are liable for infringements committed by persons under their authority. Many people tend to believe that the Congolese state can not be sued in court to answer for damages caused by his negligence in environmental matters.
We can say that the State must answer for damages caused by the material if it is proved that the damages are related to the injury which it is reported. However the responsibility of the state can not be held in accordance with the procedure laid down in that particular effect, ignorance of it by many of our fellow citizens led to the inadmissibility of their applications.
We will conclude our involvement with the following observation: the awareness of environmental concerns of the Congo is noticeable with the introduction of extensive legislation on the subject on the one hand, on the other hand, by joining many international treaties on environmental law. However management of our environment should be a plural governance where a prominent place must be granted to the people who must be informed through the women and men who have at heart the protection of the environment so that we can live in a healthy environment. We must make it a challenge as we have done in popularizing the family code in this country.
Ladies and gentlemen thank you for your attention.
Yvonne Kimbembe
Advocate General at the Supreme Court of Congo
President of the Review Board of the Family Code