On September 8, 2022, the Executive issued the Decree No. 7774/2022 (the “Decree”) that regulates articles 53, 54 and 60 of Law No. 422/1973 (the “Forestry Law”), specifically with regard to offences and penalties.
The Forestry Law includes a list of offences and penalties (§§ 53-54), and some basic application rules, such as the five-year statute of limitation period, the enforcement authority, the need for summary proceedings (art. 56/59 -60). The Decree seeks to provide greater detail to allow the application of the regime of offences and penalties by the enforcement authority, the National Forestry Institute (the "Infona").
Regarding the offence’s regime, the Decree classifies them as very minor, minor, medium, serious and very serious (§ 3), and then incorporate an extensive table with seventeen typified conducts (§ 6), including the six specific infractions already foreseen in the Forest Law. As can be seen from said table, the same type of offences can be classified with different degrees depending on the case, including offences varying between very minor and very serious.
To rate offences, the Decree incorporates two "assessment methods", depending on whether or not there is a change in land use, fires or land clearing (§ 7):
(i) If yes, the first step is to set the base amount of the fine according to the number of affected hectares, at a rate of ten wages per hectare in the Región Occidental and twenty wages per hectare in the Región Oriental. Then, the mitigating and aggravating factors that may or may not take place are weighed; such as the severity of the damage caused, possibility of recovery, existence of an approved plan, collaboration with the investigation and recidivism (five years from the last firm penalty).
(ii) If there is no land clearing, it starts from a very minor penalty to reach then a final assessment after considering these indicators: damage to the legal order, intentionality, accumulation of offences within the succession of illegal conducts, recidivism, and the value of the resulting forest products and by-products.
Turning to the penalty regime, the Decree implies that Infona will apply fines in all cases, varying the amount of the fine according to the degree of the infraction. Ascending up to 10,000 minimum wages (currently PYG 980,890,000) (§ 5), in line with the cap set by the Infona’s organic charter (Law 3464/2008, § 9(s)). According to the Decree, Infona may additionally apply the other types of penalties set forth in the Forestry Law, depending on the nature of the infraction. Such penalties are confiscation, suspension of permits and disqualification for activities for up to five years, all of which are also provided for as "actions" in the Decree (§§ 4/6).
Regardless of the penalty imposed, the Decree states that the offender must rebuild the protected forests and mandatory minimum forestry reserves affected by the illegal conduct (§ 6 in fine). in fine).
Finally, the Decree provides for some acts that are not penalised, including illegal acts by third parties that are duly reported to the authorities and changes in land use aimed at fighting fires appropriately.
The Decree replaces another relatively recent regulation of 2020, reflecting the Executive's interest in improving the application of penalties for violations of forestry regulations. Like any punitive regulation, it will eventually be subject to legality scrutiny by the courts.
Article prepared for The Legal Industry Reviews, Edition N° 2, Paraguay, by Rodrigo Fernández, you can consult the complete review .
