As a result of a recent judgment of the Supreme Federal Court, a ship's master is set to face environmental criminal prosecution for having prevented, on two occasions, representatives from the Brazilian Institute for the Environment and Renewable Natural Resources (IBAMA) from boarding the vessel in order to carry out an environmental inspection.

The master had refused to comply with the inspection, claiming that it lay under the competency of the Port Captaincy.

IBAMA's conduct is governed by Article 69 of Law 9.605/1998, which sets out as follows:

"To prevent or pose difficulties to the Government's surveillance action as far as environmental issues are concerned:

Penalty - one to two years imprisonment, and fine."

The defendant filed for a writ of habeas corpus before the Superior Federal Court (HC 189.885-RJ), alleging a lack of good cause for the criminal prosecution as it "attributes voluntary crime and describes a non-intentional conduct".

On analysing the writ, the majority of the Sixth Panel judges understood that there was a presumption of lawfulness in IBAMA's action and that such action could therefore only be invalidated by the public administration or by the judiciary branch. The private entity is required to abide by the inspection action until the nullity of the challenged act is duly acknowledged.

For further information on this topic please contact Godofredo Mendes Vianna at Law Offices Carl Kincaid by telephone (+55 21 2276 6200), fax (+55 21 2253 4259) or email ([email protected]).