Penal Benefit-Based Construction System on Indonesian Environmental Criminal Law Settlement Policy According to Environmental Rule of Law Paradigm

DOI

10.2991/978-94-6463-214-9_2How to use a DOI?

Keywords

Environmental Rule of Law; Environmental Crime; Benefit-Based Criminal System

Abstract

The environmental rule of law paradigm requires the existence of a special mechanism that involves all parties in realizing an integrated environmental law system which is not only aimed at enforcing legal certainty but also for realizing justice for all elements, both humans and the environment itself. One aspect of the mentioned special mechanism is law enforcement against environmental crime cases which not only prioritizes the deterrent effects against perpetrators for the sake of law and order, but also must pay attention to the benefit aspects, especially related to the restoration of the environment damaged or polluted due to the crimes committed. This is in line with Principle 10 of the Rio Declaration, which specifies the need for 'Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided' by States in environmental matters'. Based on the results of the author's research, Law Number 32 of 2009 concerning Environmental Protection and Management as a general provision of national environmental protection and management (general environmental law) has regulated the specificity in solving environmental crime cases. However, the author has not found any confirmation regarding the paradigm behind the penal policy towards the settlement of environmental crimes in Indonesia. The ambiguity of this paradigm has influence on the level of effectiveness of environmental law in Indonesia where criminal law enforcement against environmental crime cases does not contribute in a balanced way with efforts to improve the conditions of decreasing environmental carrying capacity. In fact, crimes related to the environment always have a business or financial motive in which the management of natural resources tends to be inconsistent with the general environmental law principle. Therefore, environmental law enforcement instruments should prioritize the benefits of law for each party so that a collaborative approach between law enforcement efforts that are in line with efforts to advance the business world has become a must. If reviewed based on the benefit-based penal policy, this collaborative approach is needed to ensure the effectiveness and efficiency of the criminal law enforcement process in solving environmental problems. This condition then became a trigger for the author to examine how the criminal law enforcement mechanisms against environmental crimes in Indonesia should be implemented based on the principles of the Environmental Rule of Law as a special paradigm in international policies in handling of environmental problems. The author in this paper uses a doctrinal/juridical- contextual research method that focuses on research on legal principles, legal systematic analysis, and legal comparisons, to find the right construction in establishing a mechanism for resolving environmental crimes based on a benefit-based penal system in Indonesia.

Copyright

© 2023 The Author(s)

Open Access

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TY  - CONF
AU  - Yazid Nurhuda
PY  - 2023
DA  - 2023/07/27
TI  - Penal Benefit-Based Construction System on Indonesian Environmental Criminal Law Settlement Policy According to Environmental Rule of Law Paradigm
BT  - Proceedings of the 1st Brawijaya International Conference on Business and Law (BICoBL 2022)
PB  - Atlantis Press
SP  - 3
EP  - 13
SN  - 2352-5428
UR  - https://doi.org/10.2991/978-94-6463-214-9_2
DO  - 10.2991/978-94-6463-214-9_2
ID  - Nurhuda2023
ER  -