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Nokhanyo Khohliso v S

2014

Ms Khohliso, a traditional healer from Tsolo in the former Transkei was convicted by the Tsolo Magistrates’ Court for the possession of a pair of vulture feet in contravention of section 13(c) read with section 84(13) of the Transkei’s Decree 9 of 1992. Section 13(c) of the Decree provided that no person shall (without the requisite permission) sell, buy, donate, receive as a donation or be in possession of any carcass of a protected wild animal (i.e. a vulture).
Section 84(13) creates strict liability for non-compliance with the above, stipulating that lack of knowledge of any fact, or to say that one did not act wilfully could not be used as a defence. It follows that once it is shown that a person is in possession of such carcass, that person is automatically criminally liable, regardless of whether or not he or she knew or ought reasonably to have known that this possession was unlawful.
As part of her traditional training, Ms Khohliso was never informed that possession of certain species, such as vulture’s feet, was prohibited by law. Counsel for Ms Khohliso argued, and the Court agreed, that Section 13(c) read with section 84(13) of the Decree eroded Ms Khohliso’s Constitutional right to a fair trial in that it negated the requirement of guilty knowledge. The essence of the argument being that to deprive a person of a defence, and accordingly of her freedom, in circumstances where that person did not know, and could not reasonably have been expected to know, that her actions were prohibited, offends against the right to a fair trial and more specifically the right to be presumed innocent.
Judgement: The High Court overturned the conviction. (Provided by: UNODC SHERLOC)

Yuling v Mutsambiwa and others

2007

The applicant and her translator, Quinling Zhang, were arrested on 4 July 2005 for possessing 72 pieces of raw ivory without the requisite permits, dealing in raw ivory and attempted export of the same without the necessary export documents. She had purchased the ivory from a dealer who was licensed by the Respondent 2, the responsible authority for managing inter alia wild life products, to manufacture and not to sell raw ivory.
The police seized the ivory and surrendered it to the responsible authority for storage purposes, pending the prosecution of the applicant and her translator. The prosecutor denied to prosecute them, taking the view that the two had acted, to their detriment, on the advice of the licenses dealer that the ivory was processed, and so lacked the essential mens rea to commit the offence. A recommendation was made to release the ivory to its "legitimate owners", and since the two could not lawfully possess the ivory in question, must negotiate with the responsible authority to regularize their future possession, and if this failed, it would be forfeited to the State.
The responsible authority was concerned by the effect the suggested compromise would have on Zimbabwe's compliance with the requirement of the Convention on International Trade and Endangered Species (CITES).
Although the applicant first argued her claim is based on ownership of the ivory, this was later retracted by her representative Ms. Munangati, as she would need to establish that the law allows her to own the ivory in question. So, Ms. Munangati suggested that the application was based on Section 59(1)(a) of the Criminal Procedure and Evidence Act, which empowers an investigating officer to dispose of exhibits in cases where no criminal proceedings are instituted, and empowers the return of the ivory exhibits to the applicant if she could legally possess them.
Judgment:
Section 59(1)(a) of the Criminal Procedure and Evidence Act provides no cause of action for the applicant. It seems that she could only base her claim on ownership or possession. She has strongly denied that she is approaching this Court on the basis of ownership. She also lost possession and does not have it. She cannot rely on Section 59(1)(a) of the Criminal Procedure and Evidence Act, and so, clearly has no cause of action by which to approach this Court. The application is therefore dismissed on the basis that she lacks a cause of action. (Provided by: UNODC SHERLOC)

Criminal Proceedings against Xavier Tridon

2001

Mr. Tridon operates a centre for the artificial incubation of parrot eggs in Champagnier. He is accused in the main proceedings of having transferred for consideration captive born and bred specimens of species of macaw whose use for commercial purposes is prohibited throughout national territory by the Guyane decree. Between November 1995 and November 1997 Mr. Tridon allegedly sold by way of trade to partners or customers captive born and bred macaw occuring in the overseas département of Guyane (France).
As a defence to the prosecution brought against him, Mr. Tridon submits that the provisions of the Code rural, in particular Article L.211-1 thereof, and the Guyane decree are incompatible both with the Convention on International Trade in Endangered Speciesof Wild Fauna and Flora (CITES), and Articles 28 and 30 of the Treaty on European Union (TEU), as well as EEC Regulation No 3626/82 and EC Regulation No 338/97, which were adopted successively for the application of CITES in the Community.
The Tribunal de grande instance de Grenoble referred the following questions to the European Court of Justice (ECJ, "The Court"):
1. Before 1 June 1997, must provisions of CITES, in particular Articles VII and XIV, EEC Regulation No 3626/82, in particular Articles 6 and 15, and Articles 28 and 30 of the TEU be interpreted as allowing a Member State take or maintain domestic measures prohibiting at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species occurring in the wild in all or part of the territory of that State?
2. After 1 June 1997, must provisions of CITES, in partuclar Articles VII and XIV, EC Regulation No 338/97, and Articles 28 and 30 of the TFEU be interpreted as allowing a Member States to take or maintain domestic measures prohibiting at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species occurring in the wild in all or part of the territory of that State?
The Court ruled:
As regards species covered by Annex A to EC Regulation No 338/97 on their protection and regulating trade therein, that regulation must be interpreted as not precluding legislation of a Member State which lays down a general prohibition in its territory. Also, as regards species covered by Annex B to this regulation, that regulation does not prohibit the commercial use of specimens of those species, provided that the conditions laid down in Article 8(5) of that regulation are met.
As regards species covered by Appendix II to CITES, EEC Regulation No 3626/82 does not prohibit the commercial use of specimens of those species. Also, as regards species covered by Appendix I, this regulation must be interpreted as not precluding legislation of a Member State which lays down a general prohibition on its territory.

Criminal Proceedings against Jan Nilsson

2003

The prosecutor indicted Mr. Nilsson for:
- Having, in August 1998, unlawfully and either intentionally or recklessly purchased the following mounted specimens: two sparrow hawks, two hobbies, two hen harriers, one Ural owl, four tawny owls, one goshawk, two kestrels, one snowy owl, one hawk owl, one short-eared owl, one barn-owl, one marsh harrier, four buzzards, one long-eared owl, one crane, one golden eagle and one sea-eagle despite the fact that those species are included in Annex A to Council Regulation (EC) No 338/97 based on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
- Having, in July 1998, unlawfully and either intentionally or recklessly purchased a mounted brown bear despite the fact that this species is included in Annex A to Council Regulation (EC) No 338/97 based on CITES.
The Hässleholms District Court referred the following questions to the Court for a preliminary ruling:
1. Do stuffed animals listed in Annex A to Regulation No 338/97 fall within the definition of "worked animals"?
2. What is covered by the term "acquire" in Article 8(3) of Regulation No 338/97.
3. Must the person who acquired the specimen more than 50 years previously be the present owner?
4. Do the provisions on exemption in Article 32 of Regulation No. 1808/2001 mean that no assessment by the management authority in accordance with Article 2(w) of Regulation No 338/97 is required?
The Court gave the following answers as part of its preliminary ruling:
1. Articles 2(w) and 8(3)(b) of RegulationNo338/97 on the protection of species of wild fauna and flora by regulating trade therein, as amended by Regulation No 2307/97, are to be interpreted as meaning that the animals referred to in Annex A to that regulation but which have been stuffed fall within the definition of "worked specimens" for the purposes of those provisions.
2. Regulation No 338/97, as amended by Regulation No 2307/97, is to apply in compliance with the objectives, principles and provisions of CITES. Although the Community is not a party to that convention, the Court cannot disregard those elements, in so far as they have to be taken into account in order to interpret the provisions of that regulation.
3. Article 8(3)(b) of Regulation No 338/97, as amended by Regulation No 2307/97, must be interpreted as meaning that receiving specimens as a gift or inheriting them, or killing animals and then taking them into one's possession, makes them "acquired" within the meaning of that provision. The concept of "acquired" for the purposes of Article 8(3)(b) concerns any taking into possession with a view to personal possession. Moreover, it is not necessary that the person who acquired the specimen more than 50 years previously be the present owner.
4. Article 8(3)(b) of Regulation No 338/97must be interpreted as meaning that the management authority of the Member State concerned must have been able to ascertain that the specimen in question was acquired in accordance with the conditions laid down in Article 2(w) of Regulation No 338/97, as amended by Regulation No 2307/97. (Provided by: UNODC SHERLOC)

Criminal Proceedings against Rubach

2009

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:
[…]
(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)