Analysis of the criminal offense of illegal exploitation of natural resources in Guatemala (Art.346 Penal Code)

By: Lionel Aguilar

I. Introduction

Guatemala, as a result of the subscription of several environmental instruments, specifically in the area of climate change, has subscribed and incorporated to its internal legislation different international agreements related to the right of human beings to have a healthy environment.

As a result of these international conventions, Guatemala has also issued various regulations that have the character of domestic law, among the most influential, the “Framework Law to regulate the reduction of vulnerability, mandatory adaptation to the effects of climate change and mitigation of greenhouse gases” (hereinafter Framework Law) which was approved by Decree 7-2013 of the Congress of the Republic.

This law, in our opinion, is of great legal relevance, since it develops and explains the guiding principles of this “Framework Law”.

Within such guiding principles the one known as “In Dubio Pro-Natura” is positivized, conceptualized as follows according to article 6 literal a) of the Framework Law:

“Principle of action for the benefit of the environment and nature that obliges that when there is any doubt that an action or omission may affect the environment or natural resources, the decisions taken must be in the sense of protecting them”.

The application of this principle has been expanding to areas beyond the content of this Framework Law, to the extent that, in many judicial criminal cases, it has been attempted to apply it as a method of interpretation of penal norms.

In this article we will focus on determining whether or not it is legal to apply this principle “In dubio Pro-Natura” in the specific interpretation of the criminal offense of “Illegal Exploitation of natural resources” developed in section 346 of the Penal Code and at the same time, under the pretext of protecting the environment, misapplying grammatical rules that must necessarily be known and applied by the authorities specialized in the environment in order to respect the guarantee that, in criminal law, the principle of legality, taxativity and literalness must be respected and observed above all, without prejudice to always bearing in mind that this branch of law constitutes the last resort of the State in the prosecution of actions or omissions linked to the protection of the environment.

This being so, this article begins with the interpretation of the penal type developed in section 346 of the Penal Code according to the principles of our penal legislation, without prejudice to the form or manner of practical interpretation that the authorities specialized in the environment (Public Prosecutor’s Office, Attorney General’s Office and the specialized Penal Courts) are giving to that particular penal type, to finally address the corresponding conclusions.

II. Analysis of the Criminal Type under Principles and Guarantees of Criminal Order

The aforementioned criminal offense is literally expressed as follows:

“Whoever exploits mineral resources, construction materials, rocks and natural resources contained in the territorial sea, submarine platform, rivers and national lakes, without having the respective license or authorization, or whoever, having it, fails to comply with or exceeds the conditions provided therein, shall be punished with imprisonment from two to five years and the confiscation of the tools, instruments, instruments and machinery that have been used in the commission of the crime”.

If this crime is committed by employees or legal representatives of a legal person or a company, seeking benefit for the latter, in addition to the sanctions applicable to the participants of the crime, a fine of five thousand to twenty-five thousand Quetzals shall be imposed on the legal person or company. In the event of recidivism, the legal person or company will be sanctioned with definitive cancellation.

Those who fish or hunt occasionally for sport or to feed their families shall be exempted”.

We understand then that the elements of the aforementioned type, in respect of strict legality based on the literalness of the same, are the following:

  • Prohibited action.
  • Exploiting mineral resources, construction materials, rocks and natural resources contained in the territorial sea, rivers and national lakes, without having the respective license or authorization or whoever having it does not comply with or exceeds the conditions set forth therein.
  • Protected legal property.
  • The water resources contained in the territorial sea, the submarine platform, national rivers and lakes and the wealth contained therein.
  • Active Subject.
  • Any person.
  • Passive subject
  • The State.
  • Governing Verb.
  • To exploit, that is: to extract from natural waters (submarine platform, territorial sea, rivers and national lakes) the wealth they contain.

III. Analysis of the Type from the Perspective of the Authorities Specializing in the Environment

As can be seen from the analysis made above from a strictly criminal point of view, there is only one prohibited action that can be criminally reproached, namely:

“Exploiting mineral resources, construction materials, rocks and natural resources contained in the territorial sea, rivers and national lakes, without having the respective license or authorization or whoever having it fails to comply with or exceeds the conditions set forth therein.”

Notwithstanding the above, the authorities specialized in environmental matters (PGN, MP and Courts specialized in these matters) extract, from the content of the mentioned criminal type, “several prohibited actions” that for them are susceptible to be criminally sanctioned and independent if any of them is considered as an infraction in the administrative field.

For such authorities, by not respecting grammatical rules and even improperly applying the “In Dubio Pro-Natura”, four are the alleged prohibited actions provided for in Article 346 of the Penal Code that may be reproached, ignoring that the only legal property protected by this criminal type is: “The water resources contained in the territorial sea, the submarine platform, rivers and national lakes and the wealth contained therein”. And not several as absurdly claimed in its interpretation work.

The following are the four alleged prohibited actions that, in the opinion of authorities specialized in environmental issues, should be subject to criminal reproach, thus allowing the existence of several legally protected goods and not only one.

  • Exploiting mineral resources without a license;
  • Exploiting construction materials without a license;
  • Exploiting rocks without a license; or
  • Exploiting natural resources contained in the territorial sea, submarine platform, rivers and natural lakes without a license.

I will begin by stating that, for an adequate respect of the principle of legality, literalness and subjection of the authority to the law as inherent guarantees to any subject criminally prosecuted, fundamental and essential grammatical rules must necessarily be known and correctly applied. Failure to do so violates the guarantees, principles and rights of constitutional order that assist and protect the person being criminally prosecuted.

The first thing to highlight is that said authorities do not apply or analyze the fundamental grammatical function that commas (,) have within a legal text of a criminal nature.

In fact, these authorities ignore that the “comma” (,) is a fundamental grammatical punctuation mark that normally indicates the existence of a brief pause within a statement. The comma (,) separates the elements of an enumeration, provided they are not complex, since, in the latter case (complexities) the “semicolon” (;) is used instead of the comma (,).

Likewise, said authorities ignore the following fundamental grammatical rule consisting in that:

“when the enumeration is complete or exhaustive the last element is introduced by a copulative conjunction, such as happens to be the letter “Y” which is introduced in the criminal type under study as follows:

“Whoever exploits mineral resources, …, …, … And natural resources contained in the territorial sea, submarine platform, rivers or national lakes, without counting without a license”.

It is very important to consider that the criminal offense under study does not incorporate the “or” as a disjunctive conjunction. If it did, which it does not, such authorities would have some degree of reasonableness in their interpretation.

In other words, in the absence of the “o” and trying to introduce it in its interpretation analysis, it is concluded that the administrator of justice and the person in charge of the criminal prosecution are legislating against the criminal type, which is forbidden to them.

In the present case, the criminal offense under study “should not present” any doubt in its grammatical interpretation if basic orthographic rules are applied in its study, understanding the function of the comma (,), of the “semicolon” (;), of the letter “And” as a copulative conjunction that “joins words without separating them” and of the letter “or” as a disjunctive conjunction that instead of integrating, disintegrates words or expressions.

It is insisted that the function of the letter “And” grammatically integrates, in a single unit, a group of words, not separates them as erroneously made by said environmental authorities in the application of the criminal type contemplated in article 346 of the Penal Code, thus denaturalizing the criminal type without prejudice of creating criminal figures not foreseen in that norm.

It is therefore concluded that, from a strictly grammatical point of view and respecting the principle of literalness and legality, the criminal offense under study must be understood as follows:

That it is prohibited and criminally sanctioned “to exploit, without having a license, “mineral resources, construction materials, rocks AND natural resources that are contained in the territorial sea, submarine platform, rivers and national lakes.”

In view of the denaturalization of the “In Dubio Pro Natura” as a supposed hermeneutic method of interpretation of criminal norms, our comments are as follows:

In no sense is this principle of “In Dubio Pronatura” recognized and incorporated by our laws to be considered as a tool for the interpretation of positive norms, since for this interpretation work, the Judicial Organism Law instructs the procedure to be followed for such purposes (see article 10 of the Judicial Organism Law), to which is added, in criminal matters, the prohibition that judges cannot create criminal figures by analogy (see article 7 of the Criminal Code).

By making use of the “In dubio Pronatura” as a method of normative interpretation, such authorities decide that, in order to better protect the environment, the penal type under study (section 346 of the Penal Code), contains several prohibited actions and not only one; All this without prejudice to the fact that the principle “In dubio Pronatura”, as provided for in the “Framework Law” is not applicable as a method of interpretation of penal norms, since the purpose of this principle, according to our laws, is that “when in doubt as to whether an action or omission may or may not affect the environment or natural resources, the decisions taken must be in the sense of protecting them”. We understand then that the application of this principle is factual, not legal.

IV. The Erroneous Interpretation Of The Criminal Type Under Study Generates An Eventual Double Prosecution And Violation Of The Guarantee That The Criminal Law Is The Last Ratio

The authorities, by segmenting the assumptions that can be criminally sanctioned, for the misunderstanding of “the comma” as an orthographic sign, of the letter “Y” as a conjunction sign and of the letter “o” as a disjunctive conjunction, as well as the use of the “In Dubio Pro Natura” as a method of interpretation, generate several prohibited actions that can be sanctioned both criminally and administratively, without prejudice that, by not understanding the correct use of such distinctive signs, they are creating new criminal offenses that according to article 7 of the Criminal Code, are prohibited.

Indeed, Article 58 of the Mining Law imposes an administrative penalty for “the exploitation of minerals without an exploitation license”.

The way in which the judicial and administrative authorities specialized in environmental matters, by interpreting the criminal type under study in the way they do, allows that, in addition to being administratively prosecuted, “the exploitation of minerals without an exploitation license” can also be criminally prosecuted, thus breaking the general principle that criminal law, whatever the protected legal right may be, is the last ratio or last force to which the State must resort. All without prejudice to the fact that this way of interpreting the criminal type, besides not helping the protection of nature, allows a double persecution against the human being, which is prohibited by our legislation. It must be remembered that, for such authorities, “exploiting minerals without a license” is supposedly also one of the actions subject to criminal reproach.

Notwithstanding the above, such environmental authorities add that, according to the terms of Article 29 of the Environmental Protection Law, the same act may be prosecuted administratively and criminally, which results in another error of interpretation and execution of such law, since the latter provides that “any action or omission that contravenes the provisions of this law shall be administratively sanctioned in accordance with the procedures of such law, without prejudice to the crimes contemplated in the Penal Code”. This rule does not enable the possibility of criminal and administrative prosecution of the same act, since otherwise it would be in clear contradiction with constitutional guarantees…