With the continuous expansion of the field of public interest litigation, acts that endanger the ecological environment and harm the public interest, such as destroying water sources, illegal fishing, and illegal mining of sea sand, have gradually been included in the scope of case handling by the procuratorial organ. In recent years, the basic-level procuratorial organs have faced the above-mentioned "old problems" and filed various public interest lawsuits to make the people applaud. In an interview with Banyuetan reporters, we learned that investigations and evidence collection are difficult, public damage identification is difficult, and procuratorial advice is not rigid enough... A series of difficulties and difficulties are hindering the effectiveness of procuratorial organs in handling cases.
1 There is no system guarantee for the right of investigation
The Haikou Maritime Court recently publicly heard the first marine environmental protection civil public interest litigation case in Hainan Province, and ordered the defendant to compensate more than 8.6 million yuan for environmental pollution damage and a public apology in the media. In response to this, Liu Jialing, assistant prosecutor of the People’s Procuratorate of Xiuying District, Haikou City, let out a sigh of relief: "So many days of guarding and visiting are worth it!"
For such public interest litigation cases, the prosecutor’s investigation and evidence collection is by no means an easy task. Both parties cannot be allowed to produce evidence on their own, nor can they legally use violence like the police. Liu Jialing told Banyuetan reporters that their forensic investigations are like unannounced visits by reporters.
Since late October 2018, the Haikou Municipal Government’s 12345 hotline has repeatedly received reports from citizens that there were mud ships dumping construction waste in the waters near Meilisha, Haikou. The People’s Procuratorate of Xiuying District, Haikou City subsequently launched an investigation using this as a clue.
"Outside the sea is a construction site. The courtyard is tightly enclosed. We can't get in at all. We are forced to break and we are afraid of grass and snakes." Liu Jialing said that on the basis of long-term squatting, she and her colleagues used drones and unmanned ships. Photographed: A mud ship of Hainan Zhonghui Dredging Engineering Company has repeatedly transported construction waste offshore, and the stern billowing mud forms long tails on the sea.
"These photos and videos have become the key evidence to prove that the defendant has committed illegal dumping." Liu Jialing said that if normal investigative methods are adopted, the offenders will not pay attention to them at all, and they have nothing to do with the offenders.
Why did such an investigation dilemma arise? Lin Fangming, director of the Fourth Procuratorial Department of Wenchang City Procuratorate, believes that the main reason is that the investigative power of prosecutors is not guaranteed by the system, the subject of investigation has no legal obligation to cooperate in the investigation, and the law does not specify the consequences of not cooperating in obtaining evidence. "Some departments have misunderstandings about the public interest litigation procuratorial system, resisting investigations and evidence collection by procuratorial agencies, and do not cooperate or even obstruct." Lin Fangming said.
Li Hao, the prosecutor of the Longlou Prosecutors Office of the Wenchang City Procuratorate, said that with the continuous expansion of the field of public interest litigation, the professional knowledge and laws and regulations involved in many fields must be learned by doing, especially when they lack technical investigative capabilities and related equipment when collecting evidence. There is a general sense of skill panic.
2 It is difficult to quantify public welfare damage and repair
For environmental public interest litigation, prosecutors also face a thorny issue, namely: how to quantify the value of damage and determine the standard of compensation?
Taking the above-mentioned illegal dumping of construction waste as an example, after evaluation, the construction waste dumped by the ship involved in the case contained cadmium, mercury, nickel, lead, arsenic, copper and other harmful and toxic substances. The relevant departments of the local government had three versions before and after the determination of the dumping quantity: Haikou Municipal Oceanic Bureau held an administrative penalty hearing, and the transcript showed that the total amount of illegal dumping was 7,580.56 cubic meters; Haikou Natural Resources and Planning Bureau identified the dumping quantity as 15791.616. Cubic meters; and the dumping volume was 69360 cubic meters entrusted by the procuratorial agency and assessed and identified by the South China Academy of Environmental Sciences of the Ministry of Ecology and Environment. The maximum difference between the data of several versions is more than 9 times.
"Many public interest infringements and damages to existing technologies are difficult to quantify scientifically. The cost of asking forensic authentication agencies to appraise is high and it is difficult for procuratorial organs to bear. Moreover, it is uncertain whether expert opinions can be used as legal evidence. Fortunately, in this case, the defendant raised a defense. The court of first instance still accepted the expert opinion. However, the defendant filed an appeal and it is hard to say how the second instance will be judged.” said Liu Benrong, director of the Eighth Prosecution Department of the Hainan Provincial People’s Procuratorate.
The same problem also exists in illegal sea sand mining cases. Illegal sea sand mining has intensified in Hainan in recent years. An important reason is that the offenders have not been held accountable for damages to the environment. The maritime law enforcement agencies only use administrative penalties to crack down. Such illegal costs are far lower than the benefits of sand mining. In order to identify the impact of illegal mining of sea sand on the marine environment, there are not enough qualified institutions in Hainan Province, and it is difficult to identify the special circumstances involved.
"How much is the cost of ecological restoration, who should pay for the compensation, how to manage and use, how to repair, and other issues lack supporting mechanisms. Some law enforcement agencies have different understandings on the investigation of damages and their enthusiasm is not high." Hainan Provincial People's Procuratorate No. 5 Said Wang Bangyuan, deputy director of the Procuratorate.
3 The pre-litigation procuratorial advice has repeatedly become "a dead letter"
For issues that harm the public interest, compulsory resolution through legal judgments through "lawsuits" is only one of the ways, and it is a more common method to urge relevant departments and individuals to rectify through pre-litigation prosecution recommendations. But at present, the pre-litigation procuratorial recommendations are not effective.
A large number of illegal fishing nets have been placed in Fengjiawan waters of Wenchang City for a long time. Wenchang Procuratorate issued pre-litigation prosecution recommendations to Wenchang Ocean and Fishery Bureau twice in 2016 and 2018. However, the bureau emphasized form and neglected effect, and failed to perform its duties in full after receiving the pre-litigation procuratorial advice, resulting in long-term and large-scale illegal fishing in fixed nets in the sea area of its jurisdiction.
For this reason, the procuratorial agency had to file an administrative public interest lawsuit with the Haikou Maritime Court, requesting confirmation that the defendant’s administrative actions were illegal, and the marine fishery department was ordered to implement rectification within six months. "If you don't touch the pain point, no one will pay attention." said Hong Zhongshi, director of Wenchang Agriculture and Rural Bureau, who is in charge of rectification work.
In an investigation into the occupation of coastal defense forests by illegal buildings in Lingao County, western Hainan, the procuratorial agency found that two shipyards had illegally occupied forest land without approval and issued pre-litigation procuratorial recommendations to the Lingao County Comprehensive Administrative Law Enforcement Bureau. Although the bureau responded to the procuratorial organ, it did not investigate and deal with the two shipowners’ resistance to administrative punishment, nor did they dismantle the two shipyards.
Niululing Nature Reserve, where the water source of Wanquan River is located, has been interplanting more than 10,000 mu of economic forests such as betel nuts for many years, "cannibalizing" natural forests. The ecology of the reserve has been extensively damaged. However, within nearly one and a half years after the procuratorial agency issued procuratorial recommendations, the former forestry authority Qionghai Agriculture and Forestry Bureau and now Qionghai Natural Resources and Planning Bureau have conducted some investigations and issued rectification notices to some offenders. , But did not make administrative actions in accordance with the law, nor did they take effective measures to stop illegal acts in accordance with the procuratorial recommendations, and there is no practical and feasible comprehensive rectification plan. As a last resort, the procuratorial organ can only file a lawsuit.
Liu Benrong said that some public interest litigation cases have encountered great resistance and are difficult to break through. Some administrative staff are worried about being held accountable and affecting their political performance. They perfunctory or even fail to cooperate with procuratorial proposals. The effectiveness of public interest litigation is facing a big rebound. risk.
Li Shunhua, deputy procurator-general of the Hainan Provincial People’s Procuratorate, believes that to bite the hard bones of public interest infringements, it is often difficult to pass a prosecution proposal or a case prosecution, and there are obvious limitations to only using pre-litigation prosecution recommendations, prosecution, and support for prosecution. . Hainan's procuratorial organs are exploring methods such as "investigation reports + procuratorial recommendations", "individual supervision + supervision of similar cases", "administrative public interest litigation cases + taking advantage of the momentum", "civil public interest litigation + follow-up supervision", "case handling + joint meeting", etc. Combine punches to defend the public welfare battle.