The Honduran Curly hair tarantula is a species protected under CITES and Council Regulation (EC) No 338/97 on theprotection of wild fauna and flora (“the EC Regulation”). This European Court of Justice (ECJ) case concerns the interpretation of Article 8(5) of the EC Regulation.
Mr. Rubach, a resident of Poland, bought a number of the said tarantula specimens at a fair and bred from them in captivity. During 1996 he auctioned specimens on the internet. He was prosecuted for infringements of Polish national law on nature protection, and the national court referred the case to the European Court of Justice (ECJ) for a preliminary ruling. The ECJ was asked to consider the effect of Article 8(5) of the EC Regulation and identified two issues: first, as to the admissibility of evidence to prove that the specimens had been obtained lawfully; and second, as to the standard of proof to which that was required to be shown.
It does not appear from the ECJ’s judgment that any issue arose in relation to the export, out of Poland, of the spiders. The alleged offences, all 46 of them, were under Article 128(2)(d) of the Law on nature protection:
"Any person who:
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(2) infringes the provisions of EU law concerning the protection of species of wild animals and plants through the regulation of trade therein by:
[…]
(d) offering for sale or purchase, purchasing or acquiring, using or displaying publicly for commercial purposes, selling, holding or transporting for the purpose of sale, specimens of specific species of plants or animals,
[…]
shall be liable to punishment by at term of imprisonment of between three months and five years."
In relation to the issue regarding evidence of lawful obtainment, the ECJ stated that the EC Regulation does not specify any particular type of evidence as being necessary. Accordingly, the competent authorities in Member States bear the task of determining what evidence is necessary.
On the question on the standard of proof, the ECJ stressed that the presumption of innocence, enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, is to be protected by the Community legal order. The general obligation on the prosecution in criminal proceedings to prove its case is not affected by the EC Regulation. The accused has a right to defend himself by demonstrating that he came into possession of the allegedly offending specimens lawfully under the conditions in Article 8(5) and use any type of evidence which the relevant procedural law permits for that purpose. (Provided by: UNODC SHERLOC)