Criminal Means of Counteracting Illegal Logging

Elena Abanina

, Nikolay Makhonko

, Yulia Plotnikova

and Elena Tarasova

Saratov State Law Academy, Saratov, Russia

Keywords: Criminal law, criminal liability, environmental law, illegal logging.

Abstract: The article focuses on the study of problems arising in countering illegal logging by criminal means. To this

end, the authors analyzed the criminal and environmental legislation in terms of determining the main features

of the objective element of illegal logging; law enforcement practice was studied; the problems that arise

when considering such cases were identified. The research was based on the application of general scientific

and specific scientific methods of cognition: analysis and synthesis, the Aristotelian method. In order to

improve the counteraction against illegal logging, the need to amend forest legislation in terms of conceptual

framework unification and the Resolution of the Plenum of the Supreme Court of the Russian Federation No.

21 "On the application by courts of legislation on liability for violations in the field of environmental

protection and natural resource use" in terms of clarifying the subject and place of the crime.

1 INTRODUCTION

Russian forests occupy a quarter of the world's forest

cover and perform the most important economic,

environment-forming and protective functions.

Recently, forest areas have been rapidly decreasing

due to high rates of illegal logging and subsequent

forest crime. According to the World Bank, direct

economic damage from illegal logging in the world

ranges from 10 to 15 billion dollars annually; at the

same time, the volume of forest crime is 15-30 billion

dollars a year. The environmental damage caused by

forest crimes is incalculable, since the damage caused

by illegal logging is not caused to individual trees, but

to the entire ecosystem (Qian, 2016). Barbaric

logging increases pressure on forests and creates

environmental, economic and social problems that

require urgent action. Due to the steady growth of

illegal logging and the volume of damage caused, the

role of criminal law measures as a reaction of the state

to forest crime is growing (Lopashenko, 2020).

The problems of legal regulation and qualification

of criminal encroachments on forest resources often

become the subject of research by Russian and

foreign scientists (Roque, 2018; Enuoh, 2018).

https://orcid.org/0000-0002-6222-3571

https://orcid.org/0000-0002-1301-1847

https://orcid.org/0000-0001-8665-8978

https://orcid.org/0000-0002-7364-4240

Particular attention is paid to the problems of criminal

and environmental law interaction due to the blanket

nature of the article disposition, which provides for

liability for illegal logging, which requires an appeal

to special environmental legislation (Yakimova,

2018; Timoshenko, 2018; Vasilyeva, 2019; Zvereva,

2019).

The goal of this work is to research the problems

arising in countering illegal logging by criminal

means, and to develop proposals for improving

legislation and law enforcement practice that will

help to increase the efficiency of the implementation

of criminal means of counteracting illegal logging

and subsequent forest crime.

2 MATERIALS AND METHODS

As the part of research, we analyzed the legislation

governing the issues of criminal liability for illegal

logging: Criminal Code of the Russian Federation,

1996 and special environmental legislation (Forest

Code of the Russian Federation, 2006). Particular

attention in the research was paid to the analysis of

the provisions of Resolution of the Plenum of the

Abanina, E., Makhonko, N., Plotnikova, Y. and Tarasova, E.

Criminal Means of Counteracting Illegal Logging.

DOI: 10.5220/0010643300003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

373-377

ISBN: 978-989-758-532-6; ISSN: 2184-9854

373

Supreme Court of the Russian Federation, 2012, N

21, "On the application by courts of legislation on

liability for violations in the field of environmental

protection and natural resource use" (hereinafter also

Resolution No. 21). Also, in order to develop

theoretical proposals, scientific works were studied

that influenced some of the research conclusions, for

example, the question of the impact of amendments

to the Forest Code of the Russian Federation on the

content of the objective element of illegal logging

(Davydova, 2019), the question of the causes of forest

crime latency (Goncalves, 2012; Ivanov, 2019); on

the structural features of blanket criminal norms

(Timoshenko, 2018).

The research used general scientific and specific

scientific methods of cognition: analysis and

synthesis in the research of legislation, practice,

scientific work in terms of identifying problems

arising in the field under study; when interpreting the

law; a formal-logical method for interpreting the

results in order to develop proposals for increasing

the effectiveness of criminal means of countering

illegal logging.

3 RESULTS AND DISCUSSION

In the Russian Federation, a criminal is applied for

illegal felling, as well as for damage to the point of

growth cessation of forest range or trees, shrubs,

vines not classified as forest range, if these acts are

committed in a significant amount. Due to the blanket

nature of the article disposition, when interpreting

this criminal norm, the need to use a concept that has

a legal definition in environmental legislation is taken

into account. This is confirmed by Resolution N 21:

when considering cases of environmental offenses,

one should be guided by the provisions of

environmental legislation and other regulatory legal

acts of the Russian Federation and its subjects on

environmental protection and nature management. It

is the application of the forestry legislation norms

when prosecuting for illegal logging causes

difficulties for law enforcement bodies.

The first problem is the mass character of the acts

that make up the blanket basis. Most of the

dispositions of norms providing for the responsibility

for environmental crimes are blanket, and they are

based on more than 70 federal laws alone and over

1000 other by-laws (Zvereva, 2019), which certainly

complicates the law enforcement process.

The second problem is the poor quality of legal

regulations. This is largely due to changes in forestry

legislation. With the adoption of the 2006 Forest

Code of the Russian Federation, the objective element

of the crime expanded, which entailed the difficulty

in distinguishing between the crime of “illegal

logging" and “acquisition, storage, transportation,

processing for the marketing or sale of deliberately

harvested timber, as well as illegal logging with an

administrative offense (Davydova, 2019).

The third problem is the latent nature of forest

crimes. They go unnoticed, unregistered, or simply

ignored in Russia and many countries, (Goncalves,

2012; Ivanov, 2019). In our opinion, this problem is

associated, among other things, with the vagueness

and inconsistency of forestry and criminal legislation.

Hence, it becomes difficult to establish and interpret

the signs of the forest crimes elements. It also

contributes to latency and low efficiency in law

enforcement bodies (Hendriana, 2020). This is due,

inter alia, to the lack of the necessary specialized

knowledge in the field of ecology and law and the

lack of environmental experts (Mardhatillah, 2016).

The fourth problem is the lack of legal liability of

legal entities for environmental crimes. Content

analysis of the mass media shows that large volumes

of illegal harvesting of forest resources are performed

by organizations. Both in Russia and in other

countries, the persons who actually perform the

felling are brought to justice, and who cannot

compensate for the damage caused, taking into

account their material condition (Lynch, 2015). In

order to solve this problem, some states have taken

the path of establishing criminal liability of legal

entities for environmental crimes: Australia, England,

Ireland, Iceland, Netherlands, Switzerland, Belgium,

Denmark, USA, Canada, etc. (Ilyas, 2019; Muchtar,

2019; Grebennikov, 2016; Ternovaya, 2016).

Taking into account the above circumstances and

factors of low efficiency of criminal law impact on

the forestry crime, the authors propose to pay

attention, first of all, to the improvement of forest

legislation and to improve the quality of the

relationship between the norms of criminal and forest

legislation.

Firstly, a clearer definition of the crime subject is

needed.

According to Resolution N 21, “the subject of

crime is both forest range, that is, trees, shrubs and

vines growing in forests, and trees, shrubs and vines

growing outside forests”. From our point of view, in

this provision, the judicial authority assumed the

function of rule-making, since the legal structure

“forest range, that is, trees, shrubs and vines” is, in

fact, the definition of “forest range”. While in special

legislation - the Forest Code of the Russian

Federation - there is no such definition. Due to this

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

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gap, there is a need to change forestry legislation in

terms of consolidating the legal definition of “forest

range”.

Secondly, it is necessary to clarify the place where

the crime was committed.

A clear definition of the place of forest range

growth affects the act qualification (illegal logging or

theft). Resolution N 21 specifies that “trees, shrubs

and vines growing in tree nurseries” do not refer to

the subject of the crime, that is, a tree nursery (as a

plot of forest land on which forest range is grown) is

not recognized as a crime scene. To our opinion, this

approach does not fully take into account the

peculiarities of forestry legislation, which establishes

various legal statuses of these plots. According to the

Forest Code of the Russian Federation, forest range

cultivation can be performed on the territory of

nurseries and plantations (Table 1).

Table 1: The legal status of plots for the forest range

cultivation.

Tree nursery

for state

institutions

Private tree nursery,

decorative crops

nursery

Forest

plantation

Pur

ose of creation

cultivation of

planting

material of

forest plants

cultivation of planting

material of forest

plants, obtaining

fruits, berries,

decorative and

medicinal plants

cultivation

of forest

range of

certain,

target

species

Legal basis

ermanent use rent rent

Ownershi

of the

rown ran

state,

munici

private private

We can assume that Resolution N 21 uses the term

“tree nurseries” as a collective term. While

clarification is required on which plot is: 1) state tree

nursery, 2) private tree nursery and nursery of

decorative crops, or 3) forest plantation. Obviously,

in cases 2 and 3, damage is caused to a private person,

and the plantings themselves are a collection of trees

as commodity and material values. Consequently, the

exclusion of such plots from crime scenes is fair, and

the illegal logging of such trees, bushes and plants is

qualified as their theft.

The situation is different with plantings in state

tree nurseries. Such nurseries were created not for

private, but for state interests. In light of the global

problem of deforestation, each state has undertaken

the obligation to increase the forest cover of its

territory, and the role of forest tree nurseries is

undoubtedly increasing. Taking into account the

special role of state tree nurseries for reforestation in

Russia, the authors propose to amend Resolution N

21 in terms of clarifying the crime scene: it is

proposed to replace the term "tree nursery" with "tree

nursery leased, forest plantation".

Thirdly, due to the active reform of environmental

and forestry legislation, there is a need to promptly

adjust the official acts of judicial interpretation, due

to their special role for law enforcement bodies. Let

us explain this by an example, when discrepancies in

the priority of using sources that determine the

objective element of the crime entailed serious

consequences.

The actions that constitute the objective element,

expressed in "illegal logging", are explained in the

Forest Code of the Russian Federation (article 16) and

in Resolution N 21.

Despite the indication in Resolution N 21 that

“when considering cases of environmental offenses,

one should be guided by the provisions of

environmental legislation”, in unclear situations the

law enforcement body does not use a systemic

interpretation of forest legislation, but refers to the

explanations of a higher court. This conclusion of the

authors is based on an analysis of judicial practice in

the period from 2012 to 2017.

In 2012, the “felling” definition in Resolution N

21 was identical to the definition contained in the

Forestry Code of the Russian Federation.

In 2015, the Forest Code of the Russian

Federation was amended to include additional

processes in the “felling” definition. Since the

provisions of forestry legislation should serve as a

guideline for the interpretation of Art. 260 of the

Criminal Code (Timoshenko, 2018), a similar

clarification should have been included in Resolution

N 21, but this was not done (detailed differences in

the “felling” definition by year are presented in Table

2).

The analysis of judicial practice showed that in the

majority of court decisions of the period of

discrepancy in the definition of felling, an outdated

definition of felling was used with reference to

Resolution N 21. This led to a restrictive

interpretation of the criminal law, and the objective

element of the crime was narrowed by excluding from

it the processes of skidding, partial processing,

storage of wood in the forest.

Due to the fairly frequent changes in

environmental legislation and the issues arising in law

enforcement practice in connection with this, we

consider it appropriate to recommend timely updating

the explanatory provisions of the Plenum of the

Supreme Court of the Russian Federation.

Criminal Means of Counteracting Illegal Logging

375

Table 2: The concept of forest range felling.

Forest Code Resolution N 21

2012

processes of sawing off, chopping down, cutting

off forest range

sawing off, chopping down or cutting, that is,

separating the tree trunk, cane and vine from the

root in various ways

2015

processes of forest range felling (including

sawing off, chopping down, cutting), as well as

other technologically related processes (including

skidding, partial processing, storage of wood in

the forest)

sawing off, chopping down or cutting, that is,

separating the tree trunk, cane and vine from the

root in various ways

2017

processes of forest range felling (including

sawing off, chopping down, cutting), as well as

other technologically related processes (including

skidding, partial processing, storage of wood in

the forest)

forest range felling (including sawing off, chopping

down, cutting, that is, the separation of the tree

trunk, cane and vine from the root in various ways),

as well as other technologically related processes

(including skidding, partial processing and (or)

storage of wood in forest)

4 CONCLUSIONS

The research of the problems arising in the

application of criminal liability for illegal logging

made it possible to come to the following

conclusions.

Based on the peculiarities of the interaction of

criminal and environmental law, in our opinion, the

legislature's approach to using the method of

constructing blanket criminal law norms is correct. In

this regard, the norms of the Criminal Code of the

Russian Federation establishing responsibility for

illegal logging do not need to be changed. Forest

legislation, which acts as a blanket basis, regulates the

activities associated with the forest range felling in

sufficient detail. At the same time, due to the

inconsistency between the norms of criminal and

forestry legislation, contradictions often arise in this

category of cases in law enforcement practice.

Elimination of the identified problems is possible by

amending:

1) the forestry legislation in terms of

consolidating the definition of "forest range as

trees, shrubs, vines in forests";

2) the Resolution N 21 in terms of clarifying the

crime scene - replacing the term “tree nursery”

with “tree nursery leased, forest range”.

We believe that these methods of minimizing

defects in legislation and law enforcement practice

will help to increase the effectiveness of the

implementation of criminal means of countering

illegal logging.

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