Environmental law and guarantee of «non bis in idem»

Lawyou — jueves, 25 de febrero de 2021

Can the same infraction be sanctioned more than once?

Is a double administrative and criminal sanction possible as a consequence of a same infringement of environmental protection legislation committed by the same perpetrator or company? Is a double or triple administrative sanction feasible according to the complex distribution of administrative competences to protect the environment?

These questions, apparently innocent, can be the object of different answers and legal arguments in application of the guarantee implied by the principle «non bis in idem» implicitly included in art. 25 CE and developed in the constitutional jurisprudence itself.

From my point of view, an integrated application of arts. 9, 10, 24 and 25 CE, of art. 45 of the Spanish Constitution, as well as of the jurisprudence of the TC, should not allow double administrative and criminal penalties for the same environmental infraction. However, the reality of practice shows us that, on some occasions, the dispersion of environmental competences can lead to double or triple penalties for the same facts.

What does the Constitutional Court say?

The most guaranteeing jurisprudence of the Constitutional Court should help us to clarify some questions on the matter. IN ORDER TO APPLY THE GUARANTEE OF «NON BIS IN IDEM» THERE MUST BE IDENTITY OF FACT, SUBJECT AND BASIS OF THE PENALTIES. In such a case, it is appropriate to apply it as a guarantee, as defended by the SSTC 2/1981, 77/83 and especially, STC 177/1999:

The latter ruling guarantees that «there will be no duplicity of sanctions -adtva. and penal- in cases where there is identity of subjects, facts and basis without the existence of a relationship of special supremacy of the Admon». This is a principle and a fundamental right of guarantee linked to the principle of legality and typicity of the infractions recognized in art. 25 CE.

According to the STC 77/1983: «non bis in idem» prevents the repeated punishment of the same conduct through different procedures, since such a possibility would entail, in effect, an inadmissible reiteration of the ius puniendo of the State and an open contradiction with the right to the presumption of innocence, because the coexistence of sanctioning procedures for an offence leaves open the possibility, contrary to that right, that the same facts exist and cease to exist for the organs of the State».

The STC 177/1999 is especially illustrative in the field of Environmental Law, being an Appeal for Protection that was successful due to violation of the aforementioned art. 25 CE, from the wording of which it is possible to extract some very interesting legal considerations:

  1. The «non bis in idem» is established as a fundamental right via art. 25 CE.
  2. When there is identity of subject, identity of fact and identity of basis in the sanction, the prohibition of double sanction for the same act, committed by the same natural or legal person, must be guaranteed, given that the object of protection is exactly the same.

This STC 177/1999 contains its CENTRAL ARGUMENTATION IN FDTO. JCO 3º: «The NON BIS IN IDEM is configured as a fundamental right of the citizen against the decision of a public authority to punish for acts that were already punished as a result of the ius puniendo of the State. Therefore, as a right of defense of the citizen against a disproportionate punitive reaction, the prohibition of bis in idem cannot depend on the order of preference established by law,… which means that the preference of the criminal jurisdiction over the administrative sanctioning power must be understood as a guarantee of the citizen complementary to his right not to be punished twice for the same acts and never as a limiting circumstance that implies that fundamental right».

The TC gives priority to the substantive elements of «non bis idem» as a fundamental right over the strictly procedural. On this basis, the TC annulled the criminal sentences appealed in amparo for violation of art. 25 CE by producing a double sanction for the same facts. In the absence of such guarantee and right, nothing would prevent up to 3, 4 or 5 sanctions… for the same facts. Where do we place a guarantee limit? Clearly, in the prohibition of the «bis in idem» contained in art. 25 EC and the STC 177/1999, among others.

And the legislation?

This interpretation is, moreover, consistent with Law 26/2007, on Environmental Liability:

Art. 6.3 Law 26/2007 «If by application of other laws the prevention, avoidance and repair of environmental damage has been achieved at the expense of the responsible party, it will not be necessary to process the actions provided for in this law».

If the legislator prohibits in such a case to resort to Law 26/2007, so much or more for the criminal route.

Art. 36.3 Law 26/2007: «The facts that have been sanctioned criminally or administratively, in cases where the identity of the subject, fact and basis can be appreciated«.


This interesting subject is one of those addressed in the program of the 22nd edition of the online Master’s Degree in Environmental Law of the University of the Basque Country. In the last decades, real issues and conflicts such as the shipwreck of the «Prestige», the case of the nuclear tests in the Pacific, the case of the Itoiz reservoir in Navarra, the fishing conflicts in the EU, the Aznalcollar mine, the case of the Santoña marshes, the «fracking», the «fracking», the «fracking» case, the «fracking» case, the «fracking» case, the «fracking» case and the «fracking» case, fracking, the problem of various landfills, oil prospecting in the Canary Islands or the presence of radioactive waste in the fertile plain of the Jarama River, among others, are the subject of practical study throughout the UPV/EHU’s online Master’s Degree in Environmental Law. http://mida.asmoz.org

Xabier Ezeizabarrena

Lawyer at Lawyou and director of the Master in Environmental Law at the University of the Basque Country.

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