Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

DOI https://doi.org/10.31876/er.v8i50.870

Judicial expertise and its application to environmental

crime in Ecuador

Peritaje judicial y su aplicación en el delito ambiental en Ecuador

Girard David Vernaza Arroyo*

Received: March13, 2024

Approved: June 29, 2024

Abstract

Environmental matters require imminent action by expert assessment

to establish responsibilities and define judicial procedures. It is

essential to know which factors have a legally relevant influence in

determining environmental crime. The objective of the research is to

analyze the judicial expertise from the perspective of environmental

crime. It is supported by the review and analysis of scientific

documents, from specialized databases, with the aim of identifying

aspects that allow focusing attention on the need to integrate legal

guidelines on environmental crimes that limit the sustainable

development of the territories. It is concluded that the existence of a

judicial expert opinion leads to the need to mediate, negotiate or

settle matters or facts in accordance with the law, where the human

being acts as a scientific technician with evidentiary training.

Keywords:

Judicial Expertise; Environmental Crime; Environmental

legislation; Environmental Conflicts; Administrative Authorities

* Doctor en Estudios Legales. Doctor en Ciencias

Jurídicas. Doctor en Jurisprudencia. Docente Titular a

Tiempo Completo, de la Universidad Técnica “Luis

Vargas Torres” de Esmeraldas, Ecuador.

girardvernaza@gmail.com;

girard.vernaza@utelvt.edu.ec. https://orcid.org/0000-

0001-8591-6154

Vernaza, G. (2024) Judicial

expertise and its application to

environmental crime in Ecuador.

Espirales Revista Multidisciplinaria

de investigación científica, 8 (50),

46-65

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

Introduction

The judicial expertise requires useful information on which to support decisions to

sustain sentences. The same is supported by a report made by professionals to know

the margin of information on some environmental fact, it requires to locate of exact

records on questions developed by judges, that is to say to indicate questions

presented by a judge, so that it is possible to have knowledge capable to dictate a

sentence, in which to sustain or to support the decisional process.

The expert opinion, is a means that is represented by an evidence report that provides

timely and valid information for the judicial proceeding, in which facts or circumstances

of evidentiary nature are highlighted (Duce, 2011), specifically it is an exposition made

verbally or in writing. In view of these approaches, the intervention of an expert in a

categorical period is relevant; giving special importance to written communication and

oratory, as a fundamental part of the expertise (Rodriguez, 2010), it is conclusive to

differentiate the judicial expertise, expert and expert opinion, this differentiation

becomes imperative in the face of collapsed and restricted environmental crimes, where

the rationalization of decision making and efficiency, is essential.

The establishment of these differentiations becomes essential for the search of a

scientific method that validates the creation of a public conscience on judicial expertise

in different countries and at an international level, in this sense, the establishment of

theoretical and scientific frontiers, highlight the importance of fighting with decision the

harmful and dangerous actions against the environment and nature, using, among

others, the means and regulations provided by law through its normative expressions

such as the Constitution and the particular environmental laws.

Resumen

Lo ambiental requiere una actuación inminente de la valoración de

expertos para el establecimiento de responsabilidades y la definición de

procedimientos judiciales, resulta fundamental conocer cuáles son los

factores que influyen legalmente de forma relevante para la

determinación del delito ambiental. Se precisa como objetivo de la

investigación analizar el peritaje judicial desde la perspectiva del delito

ambiental. Se apoya en la revisión y análisis de documentos científicos,

procedentes de bases de datos especializadas, con la finalidad de

identificar aspectos que permitan centrar la atención en la necesidad de

integrar lineamientos legales sobre delitos ambientales que limitan el

desarrollo sostenible de los territorios. Se concluye que la existencia de

un peritaje judicial conlleva a la necesidad de mediar, negociar o dirimir

asuntos o hechos apegados al derecho, donde el ser humano actúa como

técnico científico con entrenamiento probatorio.

Palabras clave:

Peritaje Judicial; Delito Ambiental; Legislación

Ambiental; Conflictos Ambientales; Autoridades Administrativas

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

There are many faults that human beings and organizations commit against the

environment, to such an extreme that the ways of relating human beings with nature

have been transformed, that in the juridical field they have propitiated the appearance

of human rights of third and fourth generation, or 21st century rights, referring not only

to living in a healthy and balanced environment, but also to the fact that nature,

traditionally considered as an object of rights and a source of resources for the

satisfaction of human needs, has also become a subject of rights as a result of this re-

dimensioning.

From a generic perspective, the tendency of an environmental ecology, marked by

anthropocentrism, considers that the idea that nature must be preserved only in terms

of human beings as the exclusive and privileged holder of rights over it, is already in the

past, by granting nature the category of subject of the rights that the 2008 Ecuadorian

Constitution grants it.

The Political Constitution of Ecuador of 2008 (EC) and the Constitution of the

Plurinational State of Bolivia of 2009 (BC 2009), supported by the innovative guidelines

of the new Latin American constitutionalism, legalized from the ancestral traditions of

the Andean indigenous cosmovision, refer to an antagonistic form of the relationship of

human beings with their environment, called sumak kawsay or also good living, which

radically distances itself from the anthropocentric position, since it is not about the

community limited to humans, but about the community of all living things.

Consequently, indirectly in Bolivia and expressly in Ecuador, nature is recognized as a

subject of rights (Pinto, 2017).

In this order of ideas, the research aims to analyze the judicial expertise from the

perspective of environmental crime, specifically to describe the historical path of the

judicial expertise and identify the essential elements from the constitutional and legal

guidelines of Ecuador for the analysis from an extended vision of the judicial expertise.

The methodology used was selected from its organization and development, selected

methods were used for the theoretical research in juridical sciences, specifically the

interpretative, deductive, historical-logical, making use of the hermeneutic method for

the analysis of the legal-constitutional norms of the rights of nature and from those

juridical guidelines the establishment of a judicial expertise that determines faults and

deficiencies on the environmental.

Likewise, as a research technique, content analysis was used, applied especially to the

analysis of legal documents and specialized studies, legal provisions, and non-legal

documents, such as reports from national or foreign institutions and information

published in different Ecuadorian media, in all cases texts related to judicial expertise

and environmental crimes.

1. Judicial expertise: Brief historical references

For the understanding of the genesis of the idea of expertise, from the linguistic point

of view, conditions are created to establish differentiations on several terms involved in

it. According to the dictionary of the Royal Spanish Academy, the expression expert,

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

comes from the Latin perītus which means connoisseur, or dexterous, corresponds to

the expert or knowledgeable in some object. In this sense, the word expertise comes

from the Latin peritia, which means knowledge, experience, license, skill or talent, that

is to say, in concrete terms, expertise refers to the wisdom that is developed from

practice, which exposes the experience and skill in a science or art (Picard and Useche,

2005).

Under this perspective, the term expertise is a modification of the base word by means

of the suffix -aje, forming the noun that expresses the action, and whose close synonym

is expertise, which refers to the work or study done by an expert. In the discussion of

the analysis of these definitions, a common and similar element underlies the special

knowledge, which differentiates the one who holds it by the procedures and

responsibilities with certain expertise.

From the point of view of the legal doctrine, Dall'anese (2002), points out that in the

definition of expert, he refers to the person who performs in the judicial field, that is to

say, he is an auxiliary of justice, who through the exercise of the public function or also

of his private activity, it is essential to issue an opinion on elements referred to his

science or practice, which, his fundamental role is the advice and orientation to the

diverse judges.

One of the essential characteristics of the expert is that they have special and diverse

knowledge, in this sense, there is a recognition of the participation and involvement of

the experts. From a historical-legal point of view, in the process of inquiry, the

recognition of the expert in the normative system is linked to the specialized knowledge

and the contribution of physical or material elements, if it is located in historical stages

the expert opinion existed since the Classical Roman law as well as in the jurisprudential

law (100 to 50 B.C.), in Rome, the figure of the "jurisperito" stood out, referred to

perform expert work under consultancies to magistrates, judges and individuals.

2. Legal configuration of the rights of nature: Essential elements for its analysis

from an extended vision of expertise.

In Ecuador, nature is a subject of rights, as was established in the Constitution of the

Republic of Ecuador (2008), by decision of the National Constituent Assembly; this

quality in terms of legal dogmatics implies the possibility of exercising rights and

contracting obligations, acting in court by itself or through third parties by way of

representation and, in general, doing everything that is not prohibited by law. This is an

indisputable thesis in modern law, especially because it is based on the unquestioned

assumption that only human beings can be subjects of rights, either individually or

through legal or collective persons, thus rights always refer to persons as their holders.

The fact that nature has been granted the quality of subject of rights has generated an

abundant literature in Ecuador and abroad; the novelty denotes precisely that fact,

without a rigorous analysis of the theoretical and practical implications of the fact,

beyond some essays and general references that lack scientific rigor.

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

One of the logical consequences deriving from the recognition of the new subject of

rights is that, also by means of a political decision of the competent authority, it must

be specified which rights it has and in what way, within the limits, it could exercise them;

there are few studies that exhaustively analyze the technical legal characteristics of the

rights recognized to nature, apart from marginal comments to reinforce the arguments

that sustain its quality of subject of rights and that jurists maintain different

interpretations ( Kriskovich, 2007).

These shortcomings have negative repercussions both at the legislative and

jurisprudential levels, as well as on the necessary formation of environmental awareness

and a culture of respect, protection of the rights of nature and determination of

environmental crimes, because if beyond rhetoric and good wishes there is no

explanation of what these rights consist of and what their content and scope are, they

could hardly be properly protected and guaranteed in the different instances of public

or private decision making or by the citizenship in general.

In spite of the much praised novelty of the rights of nature, in the Constitution of the

Republic of Ecuador, the rights granted to them are really scarce, both in quantity and

in the precise establishment of their internal and external limits of their scope and

content, which should be developed by secondary legislation or, as proposed by an

assembly member in the constituent assembly, through an organic law on the rights of

nature. To go into the subject it is necessary to begin with the analysis of the article of

the Constitution of the Republic of Ecuador in which nature is attributed the quality of

subject of rights, in this order of rights, is that the experts will take referential information

for the legal opinion and the suggestions and advice to the judges.

Article. Individuals, communities, peoples, nationalities and collectives are holders and

shall enjoy the rights guaranteed in the Constitution and international instruments.

Nature shall be the subject of those rights recognized by the Constitution (italics not in

the original).

In an exhaustive manner, it denies what is repeated ad nauseam in some studies on the

subject that refers to the rights of nature, which are not at the same level, are not equal,

do not have the same meaning as the rights of the other subjects provided for in article

10; the difference lies in the constituent mode to individual or collective subjects

constituted by human beings, the first are holders of rights, while the second is subject

to the rights that are recognized in the Constitution.

The difference is not only terminological, but involves important theoretical and

practical consequences, being a holder of rights denotes the fact that these rights are

held, regardless of whether or not they are recognized by the authority. One is in

possession of the title that confers legitimacy to exercise the rights that correspond

according to the condition of the subject; on the contrary, nature is not a holder of rights

but a subject whose rights are contracted to those recognized by the Constitution of

the Republic of Ecuador.

Another important consequence, which derives from the distinction between holders

and subjects of rights, is related to the question of whether the principles of application

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

of human rights established in Article 11 of the Constitution of the Republic of Ecuador,

which also works for the application of the rights of nature. With certainty, it could be

said that the only one of the principles applicable is the one provided for in clause 11,

according to which "the content of the rights shall be developed progressively through

norms, jurisprudence and public policies." The others would only be applicable to rights

holders, subjects other than nature.

After the debates in the National Constituent Assembly and the approval of the final

text, the rights of nature were established in two articles: Article 71. Nature or Pacha

Mama, where life is reproduced and realized, has the right to full respect for its existence

and the maintenance and regeneration of its vital cycles, structure, functions and

evolutionary processes. Any person, community, people or nationality may demand

from the public authority the fulfillment of the rights of nature (italics omitted).

Article 72. Nature has the right to restoration. This restoration shall be independent of

the obligation of the State and natural or juridical persons to compensate the individuals

and collectives that depend on the affected natural systems. This is the literal text of the

articles where the rights are established in their pertinent part, the rest refers to the

principles of interpretation and application, the obligations of the State and the subjects

legitimized to act on behalf of nature. According to the text, nature is recognized as

having three rights: i) to have its existence fully respected; ii) to respect the maintenance

and regeneration of its vital cycles, structure, functions and evolutionary processes; and

iii) the right to restoration.

The first two require an abstentionist attitude, as passive subjects, from the rest of the

subjects of law such as the State, public and private economic agents and society in

general: the basic requirement would be that it is forbidden to carry out any action or

omission that could affect the integral existence of nature or its vital cycles. The difficulty

lies in the fact that there is no unitary, individual or individualizable subject that can be

identified as "nature" as an active subject.

The third obliges as passive subjects those who are found responsible for causing

damage to nature to restore it; when the environmental impact or damage caused is

serious or permanent, it is up to the State to establish the most effective mechanisms

to achieve restoration, and to adopt adequate measures to eliminate or mitigate the

harmful environmental consequences, thus satisfying nature's right to its restoration.

If a separation is made between man and nature, or even situating man as part of nature

and living in harmony with it, any action or omission he makes, even to ensure its

existence, affects the second of the recognized rights: if man were in danger of

contracting a serious disease as a consequence of insect bites, and decides to eliminate

some of them, he would affect the maintenance and regeneration of the vital cycles of

nature, or at least that of each of the eliminated insects or of his species in general.

Hence, the content of the first two rights is almost impossible to satisfy literally, since

the underlying rule demands an absolute non-doing that is unfeasible even for the most

hardened environmentalist.

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

As for the right to restoration, despite its apparent coherence with the previous two, it

logically implies their violation: for example, when operations begin in an open-pit mine

it is obvious that the rights recognized in article 71 will be violated; as compensation to

nature, article 72 recognizes its right to restoration, which in practice translates into an

annulment of the rights recognized in article 71, a logical contradiction that has not

been noticed to date by theorists of the rights of nature, be they ecologists or

professional jurists.

Of course, the literal interpretation is not the only possible way to analyze the rights of

nature, and it is certainly not the most appropriate because of the perplexity it leads to

in terms of logical consequences; but a systematic and coherent interpretation of the

constitutional text yields something even more disturbing: the good life, understood as

the realization of human rights, can only be achieved if the rights recognized to nature

in article 71 are not respected and, additionally, if the right of nature to its restoration

provided for in article 72 is fulfilled to the greatest extent possible.

The above conclusion raises an apparent contradiction between human rights and the

rights of nature: the more the latter are respected, the less possibilities there will be of

satisfying human needs, especially those whose effective enjoyment depends on the

exploitation, use and commercialization of natural resources, or those which, on the

contrary, require the elimination of elements of nature that may be harmful to man.

This is, in synthesis, the center of discord between those who defend the rights of nature

and sumak kawsay to the extreme, and those who defend good living understood as

the satisfaction of human rights; however, from both positions, extreme by the way, it

is agreed that both sumak kawsay and good living must be achieved in harmony with

nature and the environment. The center of the discussion is more political than juridical,

although the best of the possible solutions surely passes through the promotion of

"constitutional and judicial actions oriented to demand the application of the rights of

nature in concrete situations, which would promote the configuration of a judicial

criterion and state protection...and the development of a proper legislation of the rights

of nature, which assures its autonomy, integrity and effectiveness".

Although this proposal is not meaningless in principle, since 2008 it has not materialized

in a special law on the rights of nature, nor have they had a significant development or

impact on the legislation subsequent to the EC regarding the exploitation, exploitation

or commercialization of natural resources or environmental goods. On the contrary,

there are many authors who consider that environmental legislation subsequent to the

Constitution of the Republic of Ecuador in certain cases violates the rights of nature or

encourages their violation.

Those rights recognized to nature as an undifferentiated totality, cannot be exercised

or claimed directly if there are no specific regulations in the secondary legislation that

make them operative; for this there does not seem to be a different way than the

common way of proceeding in environmental legislation, that is to say through the

special regulation of the specific forms of exploitation, exploitation and

commercialization of concrete natural resources according to their characteristics.

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

In spite of the fact that nature and the environment exist as a systemic totality in which

each of its biotic and abiotic elements coexist, Law as rules for the regulation of human

conduct requires the identification of both the subjects and the object on which the

rights and obligations arising from a juridical relationship fall; therefore, from the point

of view of legislative technique, it is unfeasible to regulate in a single legal body

everything related to human activity on nature as a subject, or its elements understood

as natural resources exploitable by human beings.

Given this impossibility, in practice the concrete forms of interaction of man as a subject

of rights with natural resources as an object are regulated separately, without losing

sight of the fact that at least in theory the legal system into which the special laws are

integrated should be coherent and exhaustive; under this premise, Ecuadorian

environmental legislation after 2008 should be understood as a concrete form of

protection of the rights of nature.

However, contrary to that hypothesis, such legislation is characterized more by what it

hides than by what it says: disregarding the vague and ambiguous expressions on the

protection of the rights of nature or the references that make to the EC or to good

living, the special laws on environmental matters continue to treat nature, with

exceptions that will be explained below, as an object and not as a subject of rights

worthy of special consideration.

These limitations can be seen in the Mining Law (LM): despite the fact that it is one of

the activities that most affects the environment and the rights of nature, it only contains

two references to them, the first in its recital that reproduces a segment of article 319

of the Constitution of the Republic of Ecuador and the second in article 79, which

establishes the obligations of the holders of mining rights to return the waters to their

original sources free of contamination, "in order not to affect the constitutionally

recognized rights of people and nature." The obligations related to the reparation of

the damage or environmental impact caused, as well as the popular action that people

can exercise to denounce mining activities that generate social, cultural or

environmental impacts, can also be interpreted as a requirement of respect for the rights

of nature.

Similar elliptical references to the rights of nature, without any specific regulation on the

ways in which they should be respected or the non-negotiable essential nucleus in each

case, can be verified in the Organic Law of the Food Sovereignty Regime (LORSA),

whose articles only point out the rights of nature as an eventually persuasive criterion

to be taken into account in the application of its content, or in the public policies or

special laws derived from its provisions.

The rest of the laws issued from 2008 to the present applicable to environmental matters

have similar characteristics to those mentioned above. As an exception can be

considered the Organic Law of Water Resources and Water Uses and Development

(LORHAA), which marks a different and very suggestive note in the midst of the evasive

special legislation with respect to the rights of nature, by virtue of the fact that it

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

establishes an independent chapter where it establishes the concrete ways in which the

rights of nature must be ensured with respect to water conservation, All these guidelines

establish the legal elements for the judicial expertise, in the understanding that they are

referents so that the expert takes as supports for the report, the established guidelines,

with these indications from this investigation the judicial expertise will be carried out to

the extent that legal bases are established in environmental matters for the

determination of the crimes.

In this law nature, as a subject of rights, although it is understood as an undifferentiated

totality, its rights are protected through the protection of water as one of its own

elements; technically it is not being recognized new rights, but making operative its

right to the maintenance of its vital cycles and its right to restoration, the first through

the maintenance, preservation and protection of its flow, its sources and its hydrological

cycles, and the second through the restoration of the damages or environmental impact

caused to the surrounding ecosystems (Coria, 2008).

As a reaffirmation that the LORHAA constitutes an exception, mention can be made of

the recent Organic Environmental Code (COA) which, in addition to repeating the

constitutional provisions on nature as a subject of rights, the specific rights recognized,

the obligations of the State and individuals and the popular action to claim for

environmental damages, only contains as novelties the responsible management of

fauna and urban trees.

Regarding animals, it is noteworthy that, in spite of being considered as one of the

elements of nature closest to human beings and therefore one of the first for which the

quality of subject of rights was claimed, they are not treated as such in the COA, since

its norms have the promotion of animal welfare as an objective, through the eradication

of violence against animals, the promotion of adequate treatment to avoid unnecessary

suffering and prevent their mistreatment, and the application and respect of the

protocols and standards derived from international instruments recognized by the State.

Criminal legislation, as a possible way to guarantee and protect the rights of nature,

does not include specific provisions on the forms of action and penalties applicable to

potential violators; the Comprehensive Organic Criminal Code (COIP) does not typify

any crime where the protected legal good is the rights of nature; in the Fourth Chapter

of the Second Book containing the Crimes against the Environment and the Pacha

Mama, only those that affect the environment are typified, however, none contemplates

nature as a legal good.

Animals are not protected as subjects of rights in the COIP either, since although

contraventions are typified for cases of mistreatment and death of pets or companion

animals, the objective is to ensure their welfare and protection and not the rights they

may have as elements of nature, regulations that together with subsequent COA

regulations reaffirm that animals are not subjects of rights under current legislation in

Ecuador, even though they are part of nature, which is subject to rights (Alterini, 2009).

In summary, it can be said that the legal regulation of the rights of nature in post-EC

laws presents several insufficiencies, which in general can be summarized in the

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

following notes: they present vagueness and ambiguity with respect to the

determination of the protected legal good. They do not contain a concrete delimitation

of the ways in which the rights of nature must be protected in the laws regulating the

use, exploitation or exploitation of specific natural resources, except for the LORHAA

with respect to the use and exploitation of water. They also have a fragmentary

character, since the use, exploitation and exploitation of natural resources regulated in

specific laws contain scattered rules, sometimes incoherent among themselves, on the

ways in which the rights of nature must be protected or how the means available for this

purpose must be used.

In addition, it should be noted that the protection of the rights of nature has been

carried out through indirect secondary regulation: no specific law has been enacted on

the subject, but rather the specific laws relating to the different natural resources include

provisions, almost always of a declarative and teleological nature, on the rights of nature

and its nature as a subject of rights.

Now, in order to delimit the elements that configure the rights of nature, it must be

specified that these are fundamental rights for their conservation and protection; from

the procedural point of view, these rights must be claimed through legal representation,

since nature cannot represent itself. The active subject is undetermined and the specific

sphere of the legal right to be protected must be defined by way of interpretation in

administrative or judicial proceedings.

The other subjects of rights recognized in article 10 of the Constitution, such as the

State, public and private institutions, organizations, communities, indigenous peoples

and nationalities, and individuals, are obliged to protect the rights of nature. Its object

of protection is nature as a whole, and since it is composed of a diversity of

heterogeneous elements, protection extends to them as well.

The essential content of the rights recognized to nature is circumscribed to three basic

aspects: its existence, its conservation and its restoration. The limits for its exercise must

be determined through the systematic interpretation of the EC, taking into

consideration other constitutional principles and values such as good living, sumak

kawsay, coexistence in harmony with nature and human rights. Finally, for their defense

and protection, the same means of access to justice that apply to human rights apply,

since the difference between the subjects of one and the other is not relevant for the

purpose of ensuring their enforcement in judicial or administrative proceedings.

In synthesis, the juridical in Ecuador, takes into consideration the rights of nature that

become a referential framework for an analysis from an extended vision of the expertise,

although the compiled and systematized information is key, the juridical elements raised

from the constitution and laws of the countries will play a key role, in the foundation of

the opinions and reports.

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

Materials and methods

The research was conducted using a mixed design, combining both quantitative and

qualitative methods. This mixed approach allowed for a holistic and in-depth

understanding of environmental crime and its implications. On the one hand, a

quantitative analysis was conducted to examine the frequency, geographic distribution

and other quantifiable characteristics of environmental crime in the study area. This

included the analysis of statistical data and the use of geospatial tools to map the

incidence of environmental crime in different regions. On the other hand, qualitative

research was carried out to explore the underlying causes, socioeconomic contexts and

perceptions of the actors involved in environmental crime.

The population and sample consisted of a wide range of stakeholders involved in

environmental crime in the study area. This included officials from relevant government

agencies, such as environmental authorities and law enforcement agencies, as well as

members of local communities, environmental activists, representatives of non-

governmental organizations, and environmental law professionals. In addition, the

inclusion of academic and scientific experts was considered to provide specialized

knowledge on issues related to environmental crime in the region.

Therefore, the sample was selected using purposive and stratified sampling methods

that ensured the representativeness and diversity of the participants, which allowed for

the inclusion of individuals with a wide range of perspectives and experiences related

to environmental crime, as well as a variety of socioeconomic and demographic profiles;

in addition, ethical considerations were taken into account to ensure the protection of

the rights and confidentiality of the participants during the research process.

Specifically, the sample was limited to 30 people, composed of criminal judges and

Ministry of Environment workers. This decision allowed for a more detailed and in-depth

approach to the analysis of the participants' perspectives and experiences. However,

priority was given to those individuals who met the specific criteria of being involved in

the area of environmental law, and who had solid experience in environmental

expertise, management and policy, thus ensuring the relevance and quality of the data

collected. In this sense, it was ensured that all participants provided their consent to

participate in the study, thus respecting their rights and guaranteeing transparency and

ethics in the research.

Results

The process of judicial expertise plays a fundamental role in the resolution of

environmental crimes, acting as a bridge between scientific-technical knowledge and

the justice system. In the Esmeraldas Province of Ecuador, this practice faces unique

challenges given the richness and vulnerability of its ecosystems. In this context, the

effectiveness of judicial expertise depends not only on the legal and technical

soundness of the expert opinions, but also on the training, experience and practices of

the environmental experts involved. This analysis seeks to delve into the current

situation of environmental judicial expertise in Esmeraldas, with the objective of

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

identifying its strengths and areas for improvement, thus contributing to the effective

administration of justice in cases of crimes against the environment.

Thus, the data analysis focuses on analyzing the process of judicial expertise in cases of

environmental crimes in the province of Esmeraldas in Ecuador, determining its

effectiveness and opportunities for improvement. To achieve this, several specific

objectives have been established to guide the description and characterization of the

judicial expert witness process in environmental crime cases.

The first specific objective seeks to describe the current situation of environmental

judicial expertise in the province of Esmeraldas, taking into consideration procedures,

actors involved and results in environmental practices, using standardized measures for

each of these dimensions, allowing a complete and detailed evaluation of the different

aspects of environmental judicial expertise.

The majority of respondents 45.2% have less than 1 year of experience in the field of

environmental expertise, followed by those with more than 6 years of experience

22.58%. This indicates a polarized distribution of experience among participants, with

a significant concentration of individuals relatively new to the field.

Nearly half of the respondents 45.2% possess a master's or doctoral level of training in

environmental law, while 41.94% indicated no academic training in the field. This

suggests that, although a significant percentage of participants have high academic

qualifications, there is also a considerable proportion of individuals with no formal

training in environmental law.

Some 38.71% of respondents have never participated in legal proceedings related to

environmental crimes in the last two years, while 32.26% have participated occasionally

(1-2 times a year). This could indicate limitations in the application or opportunity to

involve environmental experts in judicial proceedings.

More than half of the respondents 58.06% have received specific training in

environmental expertise, suggesting that there is an adequate level of specialized

training among professionals, although there is still room to increase this percentage.

These findings allow a better understanding of the current procedures of environmental

legal expertise in Esmeraldas, as well as identifying the main actors and the results of

their participation. Now, we will move on to the second specific objective, which is to

characterize the quality and rigor of the expert opinions. For this purpose, the

perceptions on the quality and rigor of these expert opinions are analyzed, which

implied examining the answers to questions related to the relevance of academic

training and experience in the quality of the expertise, evidencing the following results.

The characterization of the quality and rigor of the expert opinions made in judicial

processes for environmental crimes in the province of Esmeraldas, based on the

perceptions of the respondents, is detailed below:

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

For each of the indicators measured in this objective, it was possible to evidence what

is presented in Table 4, where it was possible to establish the following analyses.

Evaluation of Environmental Cases: The mean of the responses suggests a moderate

tendency towards having evaluated more than 20 environmental cases, with a mean of

2.77 and a standard deviation of 1.54 in a scale of 1 to 5.

Academic Training in Environmental Law: The participants perceive that they have

received academic training from nationally or internationally recognized institutions,

with a mean of 3.23 and a standard deviation of 1.56. This suggests an overall positive

assessment of the quality of their academic training.

Preparation to Face Job Challenges: Responses indicate a positive perception that

academic training in environmental law has adequately prepared respondents to face

challenges in their field of work, with means close to 3 in the relevant questions and

variations in the standard deviations.

Combination of Experience and Academic Training: There is a positive perception of

the effectiveness of combining environmental expertise experience and academic

training in environmental law to address environmental problems in the area of work,

with a mean of 3.10 and a standard deviation of 1.74.

These results suggest that, in general, environmental experts in the province of

Esmeraldas perceive that their academic training and experience are adequate and

effective for their professional performance, although there is variability in perceptions,

which could indicate specific areas for improvement in training or in the practice of

environmental expertise.

To address the third specific objective, which is to propose guidelines and

recommendations to strengthen and improve the effectiveness of judicial expertise in

cases of environmental crimes in Ecuador, the findings of the previous analysis are

considered. In this order of ideas, the following proposals are presented based on the

perceptions and experiences of the respondents in the province of Esmeraldas.

a. Strengthening of Academic Education and Continuing Training

Promote specific master's and doctoral programs in environmental law and expertise,

given the importance of this training in professional performance, which could include

the creation of specialized chairs, workshops, and seminars with nationally and

internationally recognized institutions. In addition to implementing continuous training

programs that are aligned with the current and future needs of the environmental sector,

focusing on the latest trends, technologies and expertise methodologies.

b. Practical Experience and Case Evaluation

Establish mentoring and internship programs for less experienced experts, taking

advantage of the knowledge of professionals with more than 6 years in the field, this

can help improve the quality of expert opinions through the exchange of experiences

and best practices. As well as promoting the evaluation and discussion of practical cases

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

as part of education and training, including the analysis of case studies and expert

witness simulations, to improve preparation for real challenges.

c. Participation in Judicial Proceedings

Increase the participation of environmental experts in judicial proceedings, especially

for those who have participated less frequently, therefore, the proposed could be

achieved through the creation of a registry of qualified environmental experts accessible

to judicial authorities, promoting their inclusion in more cases.

d. Creation of Collaborative Networks

Encourage the creation of collaborative networks between environmental experts,

academic institutions, and justice agencies, to share knowledge, resources, and best

practices, this dynamic could include forums, conferences and working groups

specialized in environmental crimes.

e. Continuous Evaluation and Feedback

Establish evaluation and feedback mechanisms for environmental experts, allowing for

the identification of areas for improvement in both professional practice and academic

training, including follow-up surveys, peer reviews, and accreditation systems.

Therefore, the implementation of these recommendations would work towards

continuous improvement of the effectiveness of judicial expertise in environmental

crime cases in Ecuador, ensuring that experts are well prepared, are actively involved in

judicial processes, and are aware of best practices and advances in their field.

The effectiveness of judicial expertise in the environmental field is a fundamental pillar

for the effective resolution of environmental crimes, especially in regions of high

biodiversity such as the province of Esmeraldas in Ecuador. In this context, two crucial

factors that influence the quality and rigor of the expert opinions are the experience of

the environmental experts and their level of academic training. These elements not only

determine the technical competence and specific knowledge applied during the

expertise process, but also how these professionals perceive and value their own

practice and its impact on environmental justice.

Therefore, the correlation analysis using the Chi-square test between the questions

associated with experience in environmental expertise, the level of academic training,

and the average ratings on the Likert scales is justified as a means to explore the

existence of significant relationships between these variables. This statistical approach

will allow us to identify whether perceptions of expert witness effectiveness and

satisfaction with the outcomes of environmental practices vary significantly as a function

of expert witness experience and education. By better understanding these

relationships, it will be possible to formulate strategies aimed at strengthening expert

witness capacity and ultimately improving the quality of environmental justice in the

region.

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

The Pearson correlation table presented reveals significant relationships between three

critical variables in the field of environmental expertise, i.e., experience in environmental

expertise, level of academic training in environmental law, and average ratings on Likert

scales reflecting perceptions of the effectiveness of judicial expertise and satisfaction

with the outcomes of environmental practices. The significant correlation (r = 0.810, p-

value < 0.001) between experience in environmental expertise and level of academic

training suggests that these two factors are strongly linked to each other, which could

indicate that those professionals with more experience also tend to have a higher level

of academic training. This finding underscores the importance of a solid academic

background as a foundation for accumulating relevant experience in the field of

environmental expertise.

In addition, experience in environmental expertise shows a significant positive

correlation (r = 0.500, p = 0.004) with ratings on Likert scales, indicating that, the more

experience, the more positive perceptions of the effectiveness of legal expertise and

satisfaction with the results of environmental practices tend to be. Similarly, the level of

academic training in environmental law is significantly correlated (r = 0.567, p < 0.001)

with the average ratings on the Likert scales corresponding to the outcome in

environmental practices, reinforcing the idea that a robust academic background

contributes positively to perceptions of the quality and effectiveness of judicial expertise

in environmental matters. These results underscore the interconnection between

experience, academic training and professional perceptions, highlighting the relevance

of both factors in contributing to effective and satisfactory expert practices in the

environmental context.

The results obtained in this research reflect a significant correlation between experience

and academic training in environmental expertise and perceptions of its effectiveness,

which is consistent with previous studies that emphasize the importance of experience

and specialized education in the quality of environmental legal expertise. These findings

are consistent with literature that underscores the relevance of solid academic and

practical training to effectively address complex environmental challenges (Ponce,

2021; Valdés, 2015). However, they contrast with research that suggests a marked

disparity between theoretical training and practical application in the field of

environmental law, pointing to an area for improvement in the actual training and

experience of expert witnesses (García, 2022).

Similarly, this study highlights the interdependence between theory and practice in the

field of environmental expertise, reinforcing the theory that the effectiveness of judicial

expertise in environmental crimes depends critically on the quality of the academic

training and practical experience of the experts. From a practical perspective, it

suggests the need for continuing and specialized training programs, as well as the

development of standard practices for the preparation of expert opinions. These

findings could be applied to improve environmental law training curricula and expert

witness training programs, ensuring that they are well equipped to meet the specific

challenges of environmental crime. They could also influence the formulation of public

policies to strengthen the environmental legal expertise system in Ecuador.

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

Thus, the research shows conclusively that both experience and academic training in

environmental law play fundamental roles in the perception of the effectiveness of

environmental legal expertise. The statistical evidence obtained underlines a positive

correlation between these factors and the ratings on the Likert scales, which indicates

that higher levels of training and experience are associated with more positive

perceptions of the effectiveness of the expertise. This finding not only validates the

importance of specialized education and practice in the field of environmental law, but

also suggests a path towards improving the expert witness process by investing in the

professional development of experts. For this reason, the implementation of

recommendations based on these findings could contribute significantly to the

improvement of the administration of environmental justice in the province of

Esmeraldas and, potentially, throughout Ecuador.

Conclusions

The research has unraveled the complex relationship between judicial expertise and its

incidence in the resolution of environmental crimes in the province of Esmeraldas in

Ecuador, highlighting the interaction between judicial procedures, competences of the

actors involved, and the results obtained in the environmental expert practice. Through

this analysis, several scientific and theoretical generalizations have been reached that

respond concretely to the proposed research objectives, therefore the following

conclusions are presented in consideration of the established objectives.

By studying the integration of academic training and practical experience, it was

possible to detect that the effectiveness of environmental legal expertise is significantly

influenced by the integration of a solid academic training in environmental law with the

practical experience of the experts. This integration not only enriches the quality of the

expert opinions, but also strengthens the credibility and confidence in the judicial

processes associated with environmental crimes.

For this reason, this effective integration of academic training and practical experience

emerges as a critical element in strengthening the processes of environmental judicial

expertise, revealing a holistic approach to the resolution of environmental crimes. This

synergy not only enhances the accuracy and depth of expert opinions, but also

contributes to a more robust environmental justice, aligning theoretical knowledge with

the real challenges faced in the field. Thus, recognizing and nurturing this

interrelationship implies a commitment to the continuing education and professional

development of experts, ensuring that their work is supported by a solid academic

foundation and enriched by lessons learned from practice. Such an integrative approach

not only benefits the quality of expertise, but also fosters an adaptive environmental

justice system, capable of responding effectively to evolving environmental regulations

and realities.

Similarly, when analyzing the relevance of current judicial procedures, areas for

improvement were found regarding the incorporation and valuation of expert opinions

in the context of environmental crimes, where the research highlights the need to

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

optimize these procedures to ensure greater effectiveness and efficiency in the judicial

response to environmental problems.

In this sense, the relevance of judicial procedures in the context of environmental

judicial expertise stands out as a fundamental pillar to ensure an effective and efficient

administration of justice in cases of environmental crimes. The importance of reviewing

and adapting these procedures to incorporate expert opinions in a more

comprehensive and systematic way, thus ensuring that decision making is based on a

deep and scientifically grounded understanding of environmental matters, is

underlined. This adaptation of judicial procedures is crucial to overcome existing

barriers in the assessment of expert evidence, allowing for a more informed and fairer

judgment that adequately reflects the seriousness and specificities of environmental

crimes; furthermore, the effectiveness of this approach depends on creating a

constructive dialogue between the legal and scientific fields, facilitating a mutual

understanding that enriches the judicial process and promotes more accurate

judgments and more appropriate corrective measures for environmental protection.

Finally, the impact on environmental practices showed that there is a direct relationship

between the quality of the judicial expertise and the results obtained in environmental

protection in Esmeraldas, where two well-founded and rigorous expert opinions are key

to establishing clear responsibilities and defining corrective measures that effectively

contribute to environmental conservation.

It is for this reason that the impact of expert opinions on environmental practices

transcends the judicial sphere, exerting a significant influence on the conservation and

management of the environment in the province of Esmeraldas, being of great

importance what was revealed in this research, where it is evident how a well-founded

judicial expert opinion not only contributes to a more informed decision making within

the justice system, but also establishes important precedents for the implementation of

environmental policies and sustainability practices.

Therefore, by highlighting the direct relationship between the thoroughness of expert

opinions and the effectiveness of the corrective measures applied, it underscores the

need to adopt a comprehensive approach that considers environmental expertise as a

key mechanism for driving improvements in legislation, regulations, and environmental

protection policies. Thus, expert opinions act as catalysts for positive change,

promoting greater responsibility and awareness of the impact of human activities on the

environment and encouraging the development of more sustainable and nature-friendly

strategies.

..........................................................................................................

References

Duce, J. M.: La prueba pericial y su

admisibilidad en un nuevo proceso civil,

en Justicia civil y comercial: una reforma

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

cercana. Publicación realizada con el

apoyo Financiero de la Agencia

Española de Cooperación Internacional

para el desarrollo (AECID), Santiago de

Chile, 2011. Pág. 111

Hernández, C. y Mendoza, P. (2020). Enfoques

mixtos en investigación socio-jurídica.

Política Criminal, 14(27), 258-285.

Larrea Andrade, M. (2008). Derecho Ambiental

Ecuatoriano. Quito - Ecuador: Ediciones

Legales EDLE.

Martínez, G. (2019). Peritajes ambientales: Una

revisión necesaria. Revista de Derecho

Ambiental y Ecología, 7(3), 119-145.

Mejía Cabrera, G. (2023). El Principio In Dubio

Pro Natura en el Ecuador, un

acercamiento a su contenido y

aplicación. Quito: Universidad

Hemisferios.

Ministerio del Ambiente, Agua y Transición

Ecológica. (2020). Ministerio del

Ambiente. Obtenido de

http://areasprotegidas.ambiente.gob.ec

/es/info-snap

Morales Mora, S. (2014). La imprescriptibilidad

de los delitos contra los recursos

naturales con responsabilidad penal de

las personas jurídicas. Quito:

Universidad Central del Ecuador.

Ortega Andrade, J. (2019). El principio

contaminador pagador y la

responsabilidad civil en el derecho

ecuatoriano. Guayaquil - Ecuador:

Universidad de Especialidades Espíritu

Santo.

Pavón, G. (2021). Peritaje ambiental en

Ecuador: Retos y oportunidades. Justicia

Ambiental, 8(3), 78-95.

Ponce, M.A. (2021). El peritaje judicial en

Ecuador: una herramienta para la

resolución de conflictos ambientales.

Revista de Derecho Ambiental, 1(1), 1-

20.

Judicial expertise and its application to environmental crime in Ecuador

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 35-45

Ramírez, A. (2022). Informe anual de delitos

ambientales en Ecuador. Fiscalía

General del Estado.

Rodríguez, A. (2019). Peritaje judicial

ambiental en Colombia: Análisis de

casos y procedimientos. Revista de

Derecho Ambiental, 12(2), 45-67.

Rodríguez, A. (2019). Peritaje judicial

ambiental en Colombia: Análisis de

casos y procedimientos. Revista de

Derecho Ambiental, 12(2), 45-67.

Rosa, O., Domínguez, A., & Malpica, C. C.

(2008). PRINCIPIOS BIOÉTICOS

APLICADOS A LA INVESTIGACIÓN

EPIDEMIOLÓGICA. Acta Bioethica,

14(1). https://doi.org/10.4067/S1726-

569X2008000100012

Ruiz, S. (2020). Calidad de los dictámenes

periciales ambientales en procesos

judiciales de Perú. Justicia Viva, 3(1), 33-

55.

Smith, R. (2018). Peritaje ambiental: Pasado,

presente y futuro. Justicia Verde, 1(1),

23-45

Tacuri Hidalgo, A., & Valarezo Román, J.

(2019). El principio precautorio y su

influencia en el derecho ambiental

ecuatoriano. Revista Metropolitana de

ciencias aplicadas REMCA.

Tamayo-Vásquez, F., Pascumal-Luna, R., &

Maisanche-Tomarima, D. (2021). El

principio de sustentabilidad en el

Ecuador. Revista Científica FIPCAE, pp.

181-198.

UN Environment (2018). Peritaje judicial en el

ámbito ambiental: una herramienta para

la resolución de conflictos en países en

desarrollo. Nairobi: UN Environment.

Valdés, J.M. (2015). El peritaje judicial en el

ámbito ambiental: una herramienta para

la resolución de conflictos. Revista de

Derecho Ambiental, 2(2), 1-15.

Pinto Calaça, Irene Zasimowicz (2017). “La

naturaleza como sujeto de derechos:

análisis bioético de las Constituciones de

Girard David Vernaza Arroyo

Espirales. Revista multidisciplinaria de investigación científica, Vol. 8, No. 50

July - September 2024 e-ISSN 2550-6862. pp 46-65

Ecuador y Bolivia”, Revista

Latinoamericana de Bioética No. 18/, pp.

155-171.

Picard de Orsini, Marie y Useche, Judith (2005)

“El principio de progresividad y la

actuación de los órganos del Poder

Público conforme a la Constitución

vigente”, Provincia No. 1. Universidad

de los Andes, Venezuela, pp. 421-449.

Alterini, Atilio A, “¿Derechos de los animales?”

Revista Jurídica, Universidad de Ciencias

Sociales y Empresariales No. 13/2009,

pp. 60-68.

Coria, Ignacio Daniel, “El estudio de impacto

ambiental: características y

metodologías”, Invenio, Universidad del

Centro Educativo Latinoamericano

Rosario, Argentina, No. 20/2008, pp.

125-135.

Dall'anese, F. 2002. Pericia médica y el

derecho de abstención. Med. Leg. Costa

Rica [online]. vol.19, n.1, pp. 59-66. ISSN

1409- 0015.

Kriskovich E. 2007. Manual de ética y

deontología de las profesiones jurídicas.

Atlas representaciones.

Rodríguez M. 2010. Manual básico del perito

judicial. Nº de páginas: 334 págs.

Editorial: S.L. – DYKINSON. ISBN:

9788499820330