Special judiciary on environmental crimes established in Peru

  • The majority of crimes correspond to illegal mining and illegal logging, two activities that seriously affect the region and that so far in 2018 account for 53 complaints.
  • One of the emblematic cases is related to the regional governor Luis Otsuka Salazar, who has two complaints about illegal mining and negligence in the performance of his duties.
  • Aside from the court in Madre de Dios, experts hope to also see courts in other regions of Peru, including Loreto, Ucayali, Cusco, Piura, Lima and San Martin.

On April 1 the first specialized court on environmental issues was launched in Madre de Dios, Peru. The region currently has the highest number of complaints of environmental crimes in the entire country, Julio César Guzmán Mendoza, the public prosecutor specialized in environmental crimes, told Mongabay.

“As of February 20, 2018, we have 2,983 active environmental complaints in the judicial district of Madre de Dios,” Guzmán explained. “Of the approximately 20,000 cases in all of Peru almost 3,000 correspond to this region.” Complaints to the prosecutor’s office and related investigations include cases from 2009 through February 2018.

Illegal mining is one of the most common environmental crimes in Madre de Dios. Photo by Rhett Butler/Mongabay.

Most of the environmental crimes that occur in the region are related to illegal mining and logging, said Guzmán. But we must also add related crimes such as environmental pollution and deforestation.

Illegal mining and damage to forests

Of the 64 cases presented so far this year, 15 complaints correspond specifically to illegal mining crimes and 38 refer to crimes against forests. The other 11 are linked to illicit trafficking of chemical inputs and use of machinery in illegal mining, environmental pollution, degradation of protected flora and fauna, and illegal trafficking of forest products.

In 2017, of the 491 current cases, 97 are specifically related to illegal mining and 211 for deforestation, that is, 62 percent or 308 of the cases, correspond to these two environmental problems in the region: mining and illegal logging.

Last year, in addition to the aforementioned crimes, there were reports of illegal trafficking of species, partly due to public officials granting illegal rights, among other crimes.

For the prosecutor, one of the emblematic cases of Madre de Dios is linked to the regional governor Luis Otsuka Salazar, who has had a complaint about illegal mining against him since 2013. The complaint is in two courts, the transitory environmental preparatory investigation court of Cusco and the fourth preparatory investigation court specialized in environmental crimes of Madre de Dios.

One of the areas affected by illegal logging is the buffer zone of the Tambopata National Reserve. Photo courtesy of Mininter.
One of the areas affected by illegal logging is the buffer zone of the Tambopata National Reserve. Photo courtesy of Mininter.

In addition, since 2016 the regional governor has also been investigated for the illegal granting of territorial rights, a process that is already in the fourth preparatory investigation court of Madre de Dios.

In this case, the complaint was based on an audit report from the Office of the Comptroller General of the Republic, which revealed the negligence and non-compliance of its functions as a regional authority.

As for other emblematic cases, although all are important for the prosecutor, he highlighted those related to illegal mining in the sector called La Pampa or those of the native Tres Islas community.

Entrapment in environmental justice

Public prosecutor Guzmán considers that the problem of environmental injustice in Peru can be clearly observed in Madre de Dios, where there is a conflict between the excessive burden of processes and the few assignments of prosecutors and attorneys to deal with them.

“Although this new environmental court is a step forward, the problem of the justice system in Peru will not be solved by appointing a new judge or opening a new court,” Guzmán said.

He also explained that the problem is not judicial, instead, it is due to the high burden to which prosecutors and attorneys are subject to, which leads to deficiencies in the investigations. “When there are deficient investigations, the judges are forced to release the defendants. And why does this happen? Because of a large amount of procedural burden which prevents further investigations.”

Deforestation affects forest concessions in Madre de Dios. Owners must deal with illegal logging. Photo by Jack Lo Lau/Mongabay.
Deforestation affects forest concessions in Madre de Dios. Owners must deal with illegal logging. Photo by Jack Lo Lau/Mongabay.

In this regard, he mentioned that the office of the Specialized Attorney for Environmental Crimes of the Ministry of the Environment, which he directs, has a staff of eight lawyers for the 20,000 complaints that exist throughout Peru, including the 3,000 in Madre de Dios.

In an interview with Mongabay, the president of the Superior Court of Justice of Madre de Dios, Kori Paulet Silva, said that currently there are only 200 cases prosecuted in Madre de Dios and that these are in the preparatory investigation stage in charge of the magistrates who work in the region.

“Most of the complaints are still under investigation in the prosecutor’s offices specialized in environmental matters and these have not yet been prosecuted, so we have a low number of cases admitted to the Judiciary,” Paulet Silva explained, reaffirming that the entrapment is presented in the investigation stage, as he says, because in many cases the perpetrators of the crime are not identified, since these occur in remote fields and forests of the region. “If they don’t find the ones responsible for the crimes, and if the investigation does not move forward, then it does not advance towards its judicialization.”

Paulet Silva indicated that the criminal activity against the environment is alarming in the region and that most of the cases are related to illegal mining, the same that drags other environmental crimes. “The immense wealth of Madre de Dios, which should be the engine for its development is, unfortunately, the entrance for underdevelopment,” he said.

The new environmental court

Paulet Silva said he has some doubts about the new Specialized Court on Environmental Matters, including that the rule does not specify whether a judge will be in charge of a preparatory investigation or a judge for trial. The difference is that the first one is in charge of resolving the accusation requirements of the prosecutors, that is, reviewing the files and approving them so that they can enter the trial. The second one carries the judgments that lead to sanctions.

Illegal and informal mining has already deforested more than 2,500 hectares of forest in Madre de Dios and pollutes the rivers with mercury. Photo: SPDA.
Illegal and informal mining has already deforested more than 2,500 hectares of forest in Madre de Dios and pollutes the rivers with mercury. Photo: SPDA.

The resolution of the Judicial Branch published on Jan. 24 in the newspaper El Peruano, states that, “The aforesaid court will have criminal, administrative litigation and constitutional environmental jurisdiction.”

Paulet Silva indicated that he has already made the corresponding consultation with the executive directorate of the judiciary and is now awaiting a response. However, he said that this case could use a magistrate dedicated to applying the sanctions since Madre de Dios already has a preparatory investigation office that looks at environmental issues.

A comprehensive vision of justice in Peru

Alicia Abanto, assistant director for the Environment, Public Services and Indigenous Peoples at the Ombudsman’s Office, said that the creation of the new court is an appropriate measure adopted by the judiciary, especially in the region most affected by illegal mining.

MMAP satellite images show deforestation in La Pampa, in Madre de Dios. Image via MAAP/Planet.
MMAP satellite images show deforestation in La Pampa, in Madre de Dios. Image via MAAP/Planet.

However, she reflected on the complexity and role of other institutions that should contribute so that a judge can have all the elements to properly sanction the environmental crime.

“The prosecution of crime and punishment is not only a function of the judge but also a task of the public ministry, prosecutors, police and other government agencies such as the Ministry of Energy and Mining or the Ministry of Agriculture and Irrigation, to mention some related to environmental issues,” Abanto said.

In relation to the overburdening of the Environmental Prosecutor’s Office, Abanto said that it would be convenient for the government to strengthen it with more resources and that also other prosecutors — Energy and Mining, of Agriculture, of Health — should be involved in the defense of the environment. “The protection of the environment is not only the responsibility of the Ministry of the Environment but of multiple sectors,” she said.

Jean Pierre Araujo, lawyer of the forestry program of the Peruvian Society for Environmental Law (also known by its Spanish acronym SPDA), considered that the decision of the Judicial Power is in addition to the decision made by the Peruvian government in 2008, when the Specialized Attorney’s Offices for the Environment were created (also known by its acronym in Spanish, FEMA). “At that time we saw how there was an explosion of environmental complaints,” he explained.

The expert of the SPDA stressed that this is a reform that follows from the Strategic Plan of the Environmental System of the Judiciary, approved in 2017 and in force until 2021. “It is a policy document that justifies these changes and allows the Judiciary, progressively, to improve the standards of knowledge and specialization in environmental matters.”

However, he said that the courts for environmental crimes should also be established in other regions such as Loreto, Ucayali, Cusco, Piura, Lima and San Martin, among others. “The Strategic Plan includes nine priority regions for the establishment of environmental courts, but this year only one will be launched,” he explained.

For his part, Mariano Castro Sánchez-Moreno, former vice minister of environmental management of the Ministry of Environment and ow a professor at the law school of the Catholic University of Peru, believes that the actions of the justice system in Peru have some gaps that must be overcome, such as the specialization.

The former vice minister said that the treatment of environmental issues, “requires a sensitive management to what is happening.”

“In addition, a knowledge of the legal matter to be treated in all its complexity,” he said. “Decisions should be taken considering the particularities that criminal environmental issues have.”

He agreed with the other experts that the justice system, in general, should be strengthened. “The remediation and environmental rehabilitation are part of the system. The activity that has environmental prosecutors, the police and the Directorate General of Captaincies and Coast Guard, which is responsible for monitoring the rivers must have the right elements to perform their work in the right conditions,” concluded the expert.

Banner image: La Pampa is another area destroyed by illegal mining in Madre de Dios. Photo courtesy of the Peruvian Society for Environmental Law.

This story was reported by Mongabay’s Latin America (Latam) team and was first published in Spanish on our Latam site on February 23, 2018.

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