ERA Workshop: How to Enforce EU Legislation on Biodiversity and Wildlife Trafficking Enforcing EU instruments on wildlife trafficking and illegal logging and trade of timber: Role of the Judge / Prosecutor and Administrative versus Criminal Procedures 20-22 April 2016 Madrid, Spain Centro de Estudios Jurídicos, Ministerio de Justicia Dr Matthias Keller / Presiding Judge / Administrative Court Aachen Dr Matthias Quarch / Presiding Judge / Criminal Chamber, Aachen District Court
Greetings from Aachen
A Rough Structure of the (Co-) Presentation Illicit Trafficking of Flora and Fauna as a Challenge for the Judiciary The Public Law Context by Matthias Keller (Administrative Court) The Criminal Law Context by Matthias Quarch (Criminal Court)
Illicit Trafficking of Flaura and Fauna as a Challenge for the Judiciary Timber Wildlife / Rhinos (Appendix I (II)) Rhino products, especially Rhino horns Copyright: www.traffic.org Germany: court cases have not (yet) occurred. Good expertise (origin of timber): Thünen-Institut (public entity) Bundesallee 50 38116 Braunschweig Copyright: www.traffic.org
The Public Law Context
Cases of illicit traficking have an international, European and national legal context: Copyright: www.era.int
We have (at least) three layers of law (=juggling with three balls) CITES (Washington Convention) Council Regulation (EC) No 338/97 = Basic Regulation others: Implementing Regulation Permit Regulation Suspension Regulation National law Copyright: http://nelsross.com/arts-in-education/
The dark and the bright side of the legal pyramid Awareness / Understanding / Interpretation by the National Judge Summum ius summa iniuria Complexity Inconsistancies Human Rights Rule of Law Effet utile / Effectivity Non-Discrimination Common Values
Toolbox of the National Judge (confronted with the «dark side» of the pyramid) Preliminary reference (Article 267 TFEU): Is the X-Directive / Y-Regulation / Z-Decision of the EU valid as regards fundamental rights? Supremacy of EU law: The EU legal act takes precedence over the XY-national act. Consistent interpretation: In the light of EU law an international law the domestic law is to be interpreted in this or that way.
Law enforcement through administratitive law or criminal law? Both! Administrative Law CITES and the Council Regulation (EC) No 338/97 follow a classical administrative concept of regulation, where you may need (import, export, re-export) permits and certificates (cf. Art. 4,5,10 Regulation No 338/97)
Law enforcement through administratitive law or criminal law? Both! Criminal Law CITES and the Council Regulation (EC) No 338/97 provide for that the Parties / Member States shall take appropriate measures to enforce the provisions and impose (criminal) sanctions. (cf. Art. VIII CITES / Art. 16 Reg. No 338/97)
Administrative and/or criminal measures Under Council Regulation (EC) No 338/97 the following measures are possible: refusal to grant a CITES document for import, export etc. retaining a specimen confiscation of a specimen
Binding force of a CITES document A CITES document (for import or export) is an administrative decision. Valid administrative decisions have a binding force («quasi judgment»). The concerned activity is deemed to be legal. As long as a valid CITES document is not quashed there is no room for (repressive) criminal sanctions at all.
The benefits of administrative measures Avoiding dangers by a permitting procedure: better be save (in advance) than sorry (and punish afterwards) An administrative order (prohibition) directly aims at a change of the dangerous or illegal behaviour The enforcement of administrative orders is flexible (immediate enforcement / amicable settlement etc.) Courts: The administrative judge may be more specialised in environmental law than the ordinary judge
Culture shock (?) when being confronted with real judicial procedures and their actors In her 2015 analysis Angela Bergschmidt (Thünen Institut, Braunschweig, Germany) tried to identify problems that occur when violations of animal legislation are put to court. Public veterinarians answered to her. Here are some of the critical answers: High number of criminal proceedings that are terminated without any conviction Very long and cumbersome procedure Punishments are too mild Prosecutors and judges seem to have little interest in animal welfare Lack of knowledge of specific animal protection law not enough staff / overload of work in the judiciary Interestingly enough for me it was said that the administrative judge showed interest in the matter but seemed to be weltfremd (out of this world)!
The Criminal Law Context
Criminal Law System - Through a German Lens 3 Stages of Criminal Law Procedure First Stage: Preliminary proceedings Prosecutor s Sphere: The judge has only to allow some measures, e. g. searching someone s rooms. But the judge doesn t play an active part in this stage. Prosecutor s duty: Beginning an investigation ex officio if there is a slight suspicion that a crime has been committed. What does that mean? See it in a case!
Pelicans Pelecanidae: protected by Annex I of directive 2009/147/EC One morning Pelican-Breeder Fisherman is finding a dead pelican in his pond. He realizes a brownish colour and an oily smell of the pond s water. Mr Fisherman is calling the police. A prosecutor and a police officer are appearing at the crime scene.
Pelican Case Prosecutor states an at least slight suspicion that a crime has been committed; i. e. Water pollution, Cruelty to animals, Damage to property and Killing an animal protected by Annex I of directive 2009/147/EC (crime by 71a Federal Nature Conservation Act) Therefore: Prosecutor is starting a formal investigation.
Pelican case Who is the defendant? Nobody at this stage. Prosecutor is instructing police officer to look for evidence and is returning to her office. What is police officer doing now? Taking a water sample. Seizure of the dead bird. Questioning neighbours and other may-be witnesses.
Pelican case Neighbour Ms Neugier-Nase (curious nose) tells police officer she watched another neighbour, car dealer Mr Bigmouth, pouring some canisters full of fluid into the pond at darkness. What is police officer doing now? Searching Mr Bigmouth s premises! But before that police officer has to get a judge s permission by phone. Search Result: 5 canisters of remnants of an oily fluid. Police officer is seizuring the canisters. Mr Bigmouth is questioned as defendant; he doesn t say a word.
Pelican Case And now??? An expert is needed! For investigating the water sample and the dead bird. Prosecutor is instructing M. Eng. Ms Sachlich to investigate the water sample. She finds a huge share of used oil, much more as allowed. She detects that the formula of the fluid in the seizured canisters is the same as the one of the used oil from the pond. Another expert finds out that the pelican died from an used oil poisining.
Pelican Case Now prosecutor has to decide: Is a conviction more probable than an acquittal? Or: to charge or to drop the charges? Here: To charge. But to which court? That depends on the sentence expected (prosecutor s prognosis)! A fine, a warning or less than 2 years imprisonment? To the single judge at county court! Less than 4 years?
Pelican Case To the County Court s Schoeffengericht Branch, i. e. One presiding professional judge and two layman judges: One judge, one vote! More than 4 years? To the criminal chamber of the Local Court, i. e. 2 or 3 professional judges, one of them the presiding judge (that s me) and two layman judges. Here: To the Single Judge. And now the second stage of criminal law procedure is starting: The In-between-stage
Pelican case Single judge is examining the file whether a conviction is more probable than an acquittal (same question prosecutor had to answer!). Single judge decides: Yes. Now the third stage of the criminal law procedure is starting:
The Pelican Case The Main Stage. The trial s date is getting fixed. AND THEN THE TRIAL STARTS The trial starts with the reading of the accusation by the prosecutor. Then: The defendant (Mr Bigmouth) is free to tell his story. Then: Witnesses and experts are questioned. Then: The prosecutor is demanding a sentence. Then: The defendant s attorney is responding. Then: The defendant has the final word. Then: THE VERDICT
The Pelican Case My verdict: Fine of 150 x 50 (daily net-income). Your verdict? Imprisonment? On probation? Higher fine? Lower fine? Just a warning? Acquittal? Mr Bigmouth may appeal to the Local Court s Small Chamber (one professional judge, two layman judges)
Pelican Case Small Chamber is starting the trial from the beginning. Mr Bigmouth may appeal again to the Court of Appeal (Senate: three professional judges). The Court of Appeal will look for faults in the written decision and/or in the trial s procedure. Mr Bigmouth may appeal to the Supreme Court in Karlsruhe if his constitutional rights are violated. Very improbable! And he may appeal to the European Court of Human Rights in Strasbourg. Chances to win: close to none. In the end Mr Bigmouth will have to pay a lot of money.
The Tortoise Case Copyright: www.gnu.org
The Facts of the Tortoise Case: Based on a report by Henzler, Natur und Recht 2005, p. 646. Defendant A collected 12 greek tortoises (testudo hermanni) in Bosnia and brought them into Germany for selling them without EU-permission. He knew German und European legislation regarding tortoises. Therefore he asked Defendant B a known tortoise breeder - to register these 12 tortoises as born in Germany as descendants of his breed at the local Nature Conservation Authority. B did so and got 50 from A.
The Tortoise Case continues Local Nature Conservation Authority allowed B to keep the 12 tortoises (EU-permission). B gave the documents to A. A notified Local Nature Conservation Authority of taking over these 12 tortoises from B. One of A s neighbours became suspicious of illegal tortoise trading and informed authorities. Authorities controlled A s farm and found 59 tortoises not registered but not the 12 registered ones because they were already sold. Public Prosecutor s office started an investigation.
The Tortoise Case / First Criminal Offence Crimes committed by A: 71 Federal Nature Conservation Act (Bundesnaturschutzgesetz) says in short: Illegal trafficking of tortoises under the EU Basic Regulation is a criminal offence and therefore punishable by high fines or prison sentences of up to five years. AND:
The Tortoise Case / Second Criminal Offence Indirect falsification of public records (mittelbare Falschbeurkundung: 271 STGB) Causing a wrong public record or certificate on purpose is a criminal offence and therefore punishable by fines or prison sentences (up to three years) (done for money: even up to five years).
The Tortoise Case / The Charges Degree of involvement in the crime A: incitement to offence ( 26 StGB), same punishment. B: offence by himself. Prosecutor: charges against A and B A: 71 par. 3 Bundesnaturschutzgesetz (3 months up to 5 years) + 271 par. 3, 26 StGB (3 months up to 5 years) B: 271 par. 3 StGB (3 months up to 5 years) To Local Court Schoeffengericht Branch = one professional judge und two laymen judges. Responsible for imprisonment up to 4 years.
The Tortoise Case / The Verdict Court s Decision: Defendant A: Imprisonment 1 year and 1 month, but suspended Defendant B: Fine: 120 x daily net income.
The Tortoise Case Variation A A has a permission to import tortoises from Bosnia into the EU. But he is charged for importing tortoises without permission. Prosecutor argues: This permission is a joke. Single judge at County court is rejecting this case. Because criminal courts are bound by the nature conservation authorities decisions and are not allowed to question these decisions. Exemption: It s very obvious to everybody that the permission is illegal. Example: The permission was given by the courthouse s cleaning lady.
The Tortoise Case Variation B A has a permission to import tortoises from Bosnia into the EU. But he doesn t present this permission to the custom officers. He is passing German/Austrian border in a deep forest. Later he is charged by violations of Federal Natural Conservation Act. He did not commit a crime but an infringement of the regulations ( 69 Par. 4 No 1 of Fed. Nat. Conservation Act). Sentence: Never an imprisonment but solely fines. Here: up to 50.000 (Par. 6).
The Tortoise Case Variation B Fine is determined not by court but by the authorities. The defendant may appeal to the single judge at the county court. Single judge is allowed to confirm or to change the authorities decision. The defendant may appeal again to the Court of Appeal (Senate: three professional judges). The Court of Appeal will look for faults in the written decision and/or in the trial s procedure. The final decision in this case will not be registered in the Federal crime register because a crime had not been committed.
Thank you for your kind attention! Matthias & Matthias