The Preventive Mechanisms to Confront Ecological Crimes

RESEARCH ARTICLE The Preventive Mechanisms to Confront Ecological Crimes Ouahrani Imene \ Doctor \ < < University Amar Telidji Laghouat Algeria Email: Doi Serial Keywords Disturbance of environmental balance, ecological crimes, preventive mechanisms. Abstract

Ouahrani I. (2025 The Preventive Mechanisms to Confront Ecological Crimes. Science, Education and Innovations in the Context of Modern Problems, 8(7), 429-437; doi:10.56352/sei/8.7.46.

Following the emergence and increasing severity of ecological problems, it became necessary to establish laws, the most important of which is the Environmental Protection Law within the framework of sustainable development under Law No. 10-031. The aim of this law is to provide protection in its broadest sense, as it is not merely the product of ordinary legislation but is embodied in international charters2 and constitutional provisions. Although these may not specifically mandate environmental protection, they at least guarantee the right to live in suitable environmental conditions, including the Algerian Constitution, as confirmed by Article 21.

From the latest constitutional amendment3 , which states that in order to protect individuals and ensure their well-being, the state is committed to guaranteeing a healthy environment.

Therefore, this article is considered a reaffirmation of the constitutional founder’s commitment to environmental issues, particularly regarding the reference to fossil fuels and ensuring their rational use, due to concerns about negative impacts on a healthy environment4.

Article 64 of this amendment also stipulates that the right to a healthy environment within the framework of sustainable development is a right of every citizen5.

Furthermore, Articles 1, 2, and 3 of the aforementioned Law No. 10-03 state that defining the goals it seeks to achieve and the principles on which it is based serve as preventive mechanisms underpinning the fight against all ecological hazards and environmental damages.

This leads us to pose the following problem statement:

On what do the preventive mechanisms rely to confront ecological damages? And what is Algeria’s strategy to preserve the environmental balance?

To answer this problem, we decided to divide our research into two sections

Section One: The Legal Foundations on Which the Fight is based

Article 03 of Law No. 10-03 clarifies a set of general principles upon which the protection of this balance is based, which include defining the authorities of the various actors involved in protecting environmental balance (First Subsection). Additionally, the Algerian legislator adopted the Environmental Impact Assessment system (Second Subsection).

First Requirement: General Principles Stipulated in Law 10-03

Preventive measures in the field of environmental protection aim to take all means and procedures that lead to the development and improvement of the environment and consideration of its ecological laws, to prevent any threats that endanger it. Therefore, prevention means to avoid the occurrence of the problem6.

Among the innovations introduced by Law 10-03 concerning environmental protection within the framework of sustainable development are the international environmental principles, which the legislator considered as the foundations and pillars upon which the special law for protecting environmental balance is based7.

Accordingly, we will address these principles in the following subsections:

Branch One: The Principle of Biodiversity Conservation:

Biodiversity refers to the biological diversity in the plant and animal environment. According to this principle, every activity must avoid causing significant harm to biodiversity8 and preserve it.

and the continuation of life and achievement of natural balance as defined in Article 04 of the aforementioned Law No. 10-039.

Branch Two: The Principle of Non-Degradation of Natural Resources:

According to this principle, no harm should be caused to natural resources such as water, air, soil, and underground resources, which in all cases are part of the sustainable development process and play a vital role in sustaining life, especially underground resources10.

Branch Three: The Principle of Substitution (Le principe de substitution):

The substitution principle aims to replace an environmentally harmful activity with another that is less dangerous to the environment, even if the risk remains somewhat elevated, as long as the activity is compatible with the system governing the protected environment.

It was derived from the Earth Summit conference and can be practically applied provided that the activities achieve the same objective, but the degree of environmental risk is reduced by substituting one activity with another.

Branch Four: The Principle of Integration (Le principe d’intégration):

According to this principle, environmental protection provisions must be integrated when preparing sectoral plans and programs and efforts must be made to implement Article 04 accordingly. This is what Law No. 10-03 stipulates in its Article 03.

Branch Five: The Principle of Preventive Action and Priority Correction of Environmental Damage at the Source (Le principe de prévention et la lutte à la source):

According to this principle, the best available technologies should be used at an economically acceptable cost, and anyone whose activity could cause significant harm to the environment must consider the interests of others before starting their activity11.

Branch Six: The Precautionary Principle 12 (Le principe de prévention)

With the emergence of new types of technology, this era has witnessed the rise of new risks known as ecological risks. The damage caused by these risks is often difficult to estimate and influenced by uncertainty. By adopting the precautionary principle, the law has completely changed its perspective, acknowledging that it is necessary to take into account not only expected risks but also uncertain risks. This obligation of precaution is expressed in several ways: on one hand, it requires taking intensive protective measures more than what would be required by mere probability, and on the other hand, it entails taking protective measures against risks that are not at all probable13.

Branch Seven: The Polluter Pays Principle (Le principe du pollueur-payeur)

The goal that the legislator aimed to achieve by establishing this principle14 is to place the social cost burden of pollution on the polluter. In this way, it represents a form of financial pressure on the polluter to stop polluting the environment or at least reduce it.

The polluter pays principle includes compensation for the direct damages caused by the polluter to the environment. It thus covers ongoing or periodic polluting activities. However, there are other areas covered by the polluter pays principle as applied by European countries, which can be summarized as follows:

• -    First: The application of the polluter pays principle to residual damages: This means that the polluter’s responsibility remains for residual damages if they violate the standards set by legislation, even if they have paid the prescribed fees through charges.

• -    Second: The application of the polluter pays principle to pollution caused by accidents: The Organization for Economic Co-operation and Development (OECD) has included pollution resulting from accidents by stipulating that the costs of preventive measures for pollution caused by accidents fall under the polluter pays principle. The purpose of this measure is to reduce the burden on the public budget for expenses related to pollution accidents by transferring them to the facility owner, thereby encouraging these owners to take necessary precautions to prevent such accidents¹⁵.

It can be said that the polluter pays principle is at the same time a preventive, punitive, and deterrent principle, as the independent polluter or producer is more motivated to reduce pollution at its source by establishing units within industrial facilities to combat crimes that disrupt environmental balance16.

Branch Eight : The Principles of Information and Participation (Le principe de l’information et de participation)

According to Article 02, paragraph 06 of Law No. 10-03, every person has the right to obtain information regarding the environment and its status, and also has the right to participate in advance when decisions that may harm the environment are taken.

Second Requirement: Environmental Impact Study System17:

The Algerian legislator adopted18 the Environmental Impact Study system under Law No. 03-8319 related to environmental protection, which defined it as a fundamental means to promote environmental protection aimed at assessing the direct and indirect impacts of projects on ecological balance and the living conditions and quality of life of the population.

Under this law, Executive Decree No. 78-90 related to the Environmental Impact Study20 was issued, defining it as a prior procedure that applies to all major construction works or facilities that, due to their significance, may cause direct or indirect harm to the ecosystem, particularly public health, natural green spaces, animals, plants, preservation of sites and monuments, and good neighborhood relations.

As for the aforementioned Law No. 10-03, Articles 1521 and 1622 in Chapter Four clarified the system for evaluating the environmental impacts of development projects.

Accordingly, and as a necessary approach, we have decided to divide this section into two parts: the first part dedicated to the nature of projects subject to impact studies, and the second part addressing the content of the Environmental Impact Study system.

Branch One: The Nature of Projects Subject to Environmental Impact Study

Due to the severity and often irreparability of pollution cases and environmental degradation, current environmental protection policies tend to focus on mechanisms that guarantee the prevention of The occurrence of damages affecting the ecological balance leads to development projects being subject, in advance, to the Environmental Impact Study system23.

According to Article 15 of the aforementioned Law No. 10-03, the projects that require an impact study are: development projects, fixed structures and facilities, factories, other technical works, and construction and development programs. Considering the scale of the works and their impact on the ecosystem, we deduce two criteria:

• -    First criterion: Linking the study to the size and importance of the works, development activities, and major facilities.

• -    Second criterion: Considering the operations that impact the environment. These effects may affect either the natural environment, including agriculture, natural spaces, animals, and plants, or the human environment, particularly public health, as well as sites, monuments, and good neighborhood relations.

Referring back to Article 16 of Law No. 10-03, which states that: The regulations determine the list of works that, due to the importance of their impact on the environment, are subject to environmental impact study procedures24...

Besides the Environmental Protection Law, there are other laws that specify certain projects that must undergo impact studies, including Law No. 02-01 related to spatial planning and sustainable development, as well as the Coastal Protection and Enhancement Law. The extraction permits for tiles and their related materials are also subject to the Environmental Impact Study25.

Branch Two: Content of the Environmental Impact Study System

The content of the Environmental Impact Study under Law No. 10-03 related to environmental protection is articulated in Article 16 as follows: A presentation of the planned activity, a description of the original state of the site and its environment which may be affected by the planned activity, a description of the potential impact on the environment and human health caused by the planned activity and the proposed alternative solutions, and a report on the effects of the planned activity on cultural heritage.

Additionally, the legislator defined in Article 4 of Executive Decree No. 145-07 concerning the scope of the impact study the entity responsible for preparing the study, limiting it to study offices under the Ministry of Environment, which perform the study at the expense of the project owner. This is also supported by Article 22 of the aforementioned Law No. 10-0326.

The aim of the Environmental Impact Study remains to avoid and reduce the negative impact of the project, improve and enhance its positive effects on the environment, and assure the population regarding the project’s negative impact27.

Second Section: Licensing, Prohibition, and Obligations System in the Environmental Field

The Algerian legislator dedicated Chapter Five of Law No. 10-03 to special legal systems. Article 18 addresses classified establishments, while Article 19 discusses the necessity of These establishments are subject to a licensing request for their exploitation (First Requirement), alongside the application of prohibition and obligation systems in the field of environmental protection.

First Requirement: The Licensing System 28

Combating all forms of environmental resource wastage requires the administration to impose certain obligations and restrictions through administrative permits, in order to prevent any damage that may harm the environment.

It is worth noting that there are many examples concerning the licensing system in the field of environmental protection. We will address the most important applications in construction (Section One) and classified establishments (Section Two).

Branch One : Building Permit

A building permit can be defined as an individual administrative act whose primary purpose is for the administration to ensure that the legislator’s conditions or the construction works subject to the building permit application do not violate the legal provisions and substantive regulations of construction and urban planning29.

Based on this, the building permit is considered a regulatory license, through which the administrative authority targets, by granting or refusing it, prior control over the establishment and implementation of construction works according to prescribed rules; thus, the building permit has a declarative nature.

Reviewing the legal texts30 concerning the procedures for preparing and issuing urban development contracts reveals a strong relationship between environmental protection and the building permit. The latter is considered one of the most important permits expressing prior control over the environmental and natural surroundings. To support this statement, we cite some examples, such as obtaining a building permit to protect forest areas. Accordingly, a permit must be obtained to erect a cabin or a woodworking workshop or to allocate space for storage of wood. This is related to the protection of forests from fires, pollution, grazing, and thus construction and works in national forest properties are not allowed except after obtaining a permit from the responsible ministry31.

Branch Two: Permit for Operating Classified Establishments

The Algerian legislator defined classified establishments in Law No. 10-0332 as those factories, workshops, nurseries, stone quarries, and mines — generally, establishments operated or owned by a natural or legal person, whether public or private, which may cause risks to public health, hygiene, safety, agriculture, ecological systems, natural resources, sites, landmarks, and tourist areas, or may cause disturbance to neighborhood comfort.

From this, we conclude that classified establishments are divided into:

First: Establishments subject to licensing

Article 19 of the aforementioned Law No. 10-03 defines the authority responsible for issuing the operating permits for classified establishments according to their importance and the degree of risk arising from their exploitation. It divides them into three categories:

• -    Establishments of the first category require a permit from the Minister in charge of the environment.

• -    Those of the second category require a permit from the regionally competent Wali (governor).

• -    Those of the third category require a permit from the President of the Municipal People's Assembly.

As for the timing of the permit application33, it must be submitted at the same time as the building permit application.

Second: Establishments subject to declaration

These are establishments that do not cause any danger and have no direct impact on the environment. They do not cause risks or harms to natural resources or tourist areas; therefore, they do not require an Environmental Impact Study.

Second Requirement: Prohibition and Obligation System

Alongside the licensing system, which is considered the most important tool used by the administration in environmental protection, there is also the prohibition system (Section One), the obligation system (Section Two), as well as the reporting system34.

Branch One : Prohibition System

Prohibition is a legal tool applied by the administration through administrative decisions, aiming to prevent certain actions due to the danger resulting from their practice. One of the characteristics of environmental protection laws is that most of their rules are mandatory, which individuals cannot violate because they relate to public order.

Referring to environmental protection laws, we find many such rules. Law No. 10-03 includes examples of prohibitions; for instance, Article 33 prohibits any action that harms biodiversity or disfigures the character of protected areas, as the legislator subjected them to special protection systems35.

Under the new Water Law No. 12-0536, the legislator prohibited any new construction, planting, erecting permanent fences, or any action that harms the preservation of valleys, lakes, ponds, and shores, or any act that obstructs the free flow of surface water in the courses of valleys. Many other legal texts have also adopted the prohibition approach in the legal protection of the environment37.

From the above, it is clear that the legislator resorts to prohibition whenever there is a real danger threatening ecological balance and sees the necessity of intervention to preserve and protect it from any violation or aggression.

Branch Two : Obligation System

Obligation is the opposite of prohibition. While prohibition is a legal and administrative measure that prevents an activity (a negative measure), obligation requires performing a certain action (a positive measure).

Therefore, the administration resorts to obligating individuals to carry out certain actions to reinforce protection and preservation of the environment.

There are many examples of obligation in environmental legislation. For example, within the framework of air and atmosphere protection, Article 46, paragraph 2 of Law No. 10-03 states: Industrial units must take all necessary measures to reduce or cease the use of materials that cause ozone depletion.

CONCLUSION

In conclusion, this study highlights that achieving protection of the ecological system and ecological balance is realized through raising awareness among individuals about the necessity of preserving ecological balance. The existence of environmental legislation with deterrent and preventive mechanisms, organized administration, and strict judiciary alone is not sufficient to confront ecological environmental hazards unless civil society is sensitized, educated, and the role of active associations in environmental protection is strengthened.