Article 325 Spanish Criminal Code: Environmental Offences

Article 325 of the Spanish Criminal Code punishes emissions, discharges, radiation, extractions, excavations, landfill, noise, vibrations, injections, deposits and water abstractions carried out in contravention of environmental legislation which cause or may cause substantial harm to the quality of air, soil or water, or to animals or plants. The offence is one of risk: actual harm need not be proved. The second paragraph raises the penalty to two to five years where the balance of natural systems may be seriously affected. In the province of Alicante it is applied to discharges from premises, to unlawful abstraction of water and to noise from licensed premises.

Wording of Article 325 of the Spanish Criminal Code

Elements of the offence

1. Contravention of a law or general provision protecting the environment, which must be identified specifically: the offence is one of administrative dependence and cannot rest on a general duty of care.
2. One of the forms of conduct listed, carried out directly or indirectly, which includes the conduct of a company through those who direct it.
3. Causation of substantial harm, or the capacity to cause it. The offence is complete on the creation of that potential, but the potential must be established by expert evidence and not asserted.
4. For the second paragraph, the capacity seriously to harm the balance of natural systems, which is a materially higher threshold than substantial harm to a single element.

Defence strategy

The specific rule contravened. The offence depends on the breach of an identified environmental provision. Where the discharge was within the parameters of the authorisation held, where the authorisation had been renewed on the same terms, or where the parameter relied on is contained in a technical instruction rather than in a general provision, the element fails. The defence obtains the complete administrative file of the installation, including the history of inspections, which frequently shows the same conditions accepted for years.

The threshold of substantial harm. Substantial harm, or the capacity to cause it, must be established by expert evidence relating to the specific medium affected. Isolated samples, samples taken without the safeguards, samples not representative of normal operation and comparisons against background levels that were never measured are all challenged. The defence commissions its own sampling where the source is still operating, since the prosecution case is often built on a single reading.

Attribution within a company. Where the conduct is that of a business, the individual responsibility of each accused must be established: who took the decision, who was responsible for the installation, what the delegation of functions provided and whether a compliance system was in operation. A director without operational responsibility for the installation, and a technician who reported the problem internally, are in materially different positions, and the internal documentation is what establishes this.

Restoration and the administrative route. Restoration of the site, the installation of corrective measures and payment of the cost of remediation before trial found the mitigating circumstance of reparation and, in this class of case, frequently persuade the prosecution that the administrative sanction is sufficient. Because the criminal and administrative proceedings overlap, the defence also raises the prohibition on double punishment where a penalty has already been imposed for the same facts.

• Article 319: unlawful building
• Article 320: planning offences by officials
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.