The effective enforcement of wildlife and forest offences requires a well-functioning and efficient prosecution service and an independent judiciary. This ensures that offenders are kept accountable for their actions and the rights of all involved stakeholders are protected (UNODC, 2012; Nurse, 2015; UNODC, 2018). However, in many countries, prosecution authorities and courts are understaffed, under-resourced, and in some cases, corrupted (UNODC, 2012).
Judicial responses to wildlife trafficking can broadly be classified in three categories: (1) environmental matters, including wildlife trafficking, being handled by prosecution and judicial authorities with general jurisdiction, (2) internal specialization of prosecution and judicial authorities, usually staffed by prosecutors and judicial officers who have undergone specialized training, and (3) the establishment of specialized environmental courts (body or individual in the judicial branch of government) and tribunals (non-judicial government dispute resolution bodies) (Amirante, 2012).
Depending on the national legal tradition, public prosecutors may oversee and direct the investigation of the wildlife trafficking and bring cases before court. It is rare for countries to have specialized units for the prosecution of wildlife trafficking; usually cases are handled by prosecutors with a more general mandate. It is equally uncommon for jurisdictions to institute special rules of procedure for the prosecution of wildlife trafficking; thus, the general rules relating to criminal procedure apply (UNODC, 2012; Nurse, 2015; Wyatt, 2013).
In a small number of countries, prosecutors have been placed within wildlife and forest law enforcement units to facilitate and improve the prosecution of offences. In the absence of such measures, a close working relationship between relevant enforcement units and prosecution authorities should be established in order to enable effective investigation and prosecution of wildlife trafficking (UNODC, 2012).
Spain is one of the few countries with a specialized police force for environmental crime, called Servicio de Protección de la Naturaleza (SEPRONA). SEPRONA is part of the Guardia Civil, the Spanish (military) police force which is generally entrusted with combating specific types of crime.
Besides a specialized police force, Spain also has prosecutors specialized in environmental crime at different levels. The Spanish Prosecutor's Office has a coordinator for environmental crime ('Fiscal de Medio Ambiente y Urbanismo'). This office is responsible for the coordination and supervision of the activity of all Spanish public prosecutors in the area of environmental crime. Public prosecutors with special tasks in the field of the environment also exist in the High Courts and Provincial Courts. Therefore, specialized prosecutors now act from the lowest to the highest level of prosecution.
Under the Fisheries Management Act 1998 (PNG) (as amended), the National Fisheries Authority has the power to prosecute its own cases, and fisheries matters are heard in a Grade 5 Magistrate’s Court. The maximum penalty available for prosecuted offences under the Fisheries Management Act is a fine of up to PGK 25 000 for a crew member, PGK 500 000 for a natural person, and PGK 2 million for a corporation. For repeat offending within a 24-month period, a court may impose a fine of twice the maximum amount for a natural person or four times the maximum amount for a corporation. Imprisonment of up to five years may additionally be ordered.
According to data in 2017, there were 92 fisheries matters heard by District Courts in PNG in 2015, and 202 cases in 2016, representing an increase of 110 fisheries matters within a year. According to the National Fisheries Authority, more than 50% of fisheries matters that are prosecuted in court relate to sea cucumber. In terms of marine species, sea cucumber is considered to pose the highest threat for illegal harvesting and trade due to its high value and the complexity of managing this fishery.
Under PNG law, local people can access marine resources from the beach to three nautical miles out from shore, with no commercial activities or foreign fishing vessels allowed to operate in this zone. There is a management plan to guide the sea cucumber fishery (jointly developed between the National Fisheries Authority and the Conservation and Environment Protection Authority) and a moratorium on sea cucumber trade has been in place since 2021, although it is set to reopen in 2023. The monitoring and compliance work of the National Fisheries Authority increases when a moratorium is in place, to enforce the ban and ensure no illegal harvesting or trade is occurring.
A functioning judiciary depends on adequate structure and organization. It is a prerequisite that judicial functions are separated from the functions of the executive and legislative branches of government. A lack of independence, or the perception thereof, can lead to interference in the affairs of the judiciary and corruption at all levels, including in the wildlife and forestry sectors (UNODC, 2012).
Some jurisdictions have moved to establish designated tribunals or courts with jurisdiction over environmental matters, including wildlife trafficking. This is a welcome development that has been recommended by some experts (Sundari Kella & Allan, 2012). The main advantages so-called 'green courts' include greater expertise of the ruling body, decreased costs of litigation, and uniformity in jurisprudence to name a few (UNEP, 2016).
The idea of specialized courts, however, may be incongruent with the judicial system and judicial traditions of some jurisdictions, and the creation of such courts has significant resource implications.
In 2017, Uganda launched a specialized court for cases referred from the Uganda Wildlife Authority (UWA), amongst other offences. Called the 'Standards, Wildlife and Utilities Court', the court seeks to reduce the large backlog of cases and long delay of court hearings.
In February 2019, it was reported that the court has taken up prosecution of two Vietnamese nationals arrested by Ugandan customs in possession of elephant ivory and pangolin scales, and officials were planning to charge them in the Standards, Wildlife and Utilities Court for offences under the Wildlife Act, including possession and illegally trafficking wildlife products.
The Supreme Court in India has played a vital role not only in the settlement of disputes involving environmental crimes but also through its jurisprudence in initiating the development of new environmental law. As early as 1986, the judiciary stressed the need to involve non-legal experts drawn from the sciences in environmental litigation. India's judiciary also has repeatedly called for the establishment of a system of specialized environmental courts.
In 1995, the Government of India announced the creation of a National Environment Tribunal followed by the National Environment Appellate Authority two years later. Both entities, however, never became operational.
Interest in such courts was reinvigorated in 2003 when the Law Commission of India presented a report outlining the difficulties faced by ordinary courts when dealing with environmental crimes, and presented options for the design and development of specialized courts.
In 2006, the Government presented a comprehensive new national environment policy. In 2010, the National Green Tribunal Act was passed to set up dedicated environmental courts. India's judiciary played a central role in shaping this legislation and the drafters of the Act were mindful of addressing the specific needs that had been identified by judges and others working in the judicial system.
Australia and New Zealand have been particularly proactive in the establishment of specialized courts. One example is the Land Environment Court in the State of New South Wales, Australia, that was created in 1979 and is widely viewed as a model for an independent and well-functioning specialized court; the Environment Court of New Zealand is another such example. Beyond Australasia, specialized environmental courts can now be found in several jurisdictions, including for instance Brazil, where the State of Amazonas set up a special Court of Environment and Agrarian Issues.
In some jurisdictions, while environmental courts are independent in their procedures and decision-making, they are still part of the general court system. The Planning and Environment Court in Queensland, Australia and the Environmental Division of the Vermont Superior Court in the United States are two such examples. The National Environment Tribunal in Kenya and the Environment Dispute Coordination Commission in Japan are, by comparison, fully independent in their operations.
In several jurisdictions, specialized tribunals have been created for environmental matters. This includes, for example, the National Green Tribunal in India (outlined above), the Environmental Review Tribunal in Ontario, Canada, and the Environmental Control Board in New York, United States.
The Court of Environment and Agrarian Issues in the State of Amazonas, Brazil, is an example of a substantially independent environmental court. This Court has one of the widest and most innovative range of remedies available to address environmental crimes.
A unique feature of these remedies is a 'night school for environmental law violators', which won Brazil's 2013 Prize of National Quality in the Judiciary. According to Judge Adalberto Carim Antônio who implemented the remedy, participants of the mandatory course turn into ecologists by learning the basics of environmental law. Rates of recidivism have reportedly decreased significantly as a result.
Other remedies include community service, restoration of environmental damage, as well as unique sentencing such as financing environmental education signs on buses and environmental education books for local schools. This environmental court has taken it upon itself to set up a bus fitted out as a mini-courtroom in which hearings can be held in rural and remote areas.
If an Act mentions a particular court in which an offence is to be tried, then the offence must be tried by that court (section 5 Criminal Procedure Code). If an Act does not mention a particular court, then, when deciding in which court to prosecute an environmental offence, regard must be given to the maximum penalty that the relevant court can impose.
Section 4(a) of the Criminal Procedure Code provides that any offence may be tried by the High Court. The High Court may pass any sentence authorised by law (section 6 Criminal Procedure Code). Appeals in criminal cases from any Magistrate’s Court are to be conducted in the High Court (section 45 Magistrates’ Court Act). Some laws provide that the matter must be brought in the High Court, for example under the Fisheries Management Act 2015.
Principal Magistrates’ Court
An offence may be tried by Principal Magistrates’ Court where the maximum statutory penalty for the offence does not exceed 14 years imprisonment and/or a fine (section 4(b) Criminal Procedure Code). However, the maximum sentence that can be imposed by the Principal Magistrates’ Court cannot exceed imprisonment for 5 years and/or a fine of 50,000 penalty units (section 27(1) Magistrates’ Court Act).
Any offence may be tried by any Magistrates’ Court where the maximum statutory penalty does not exceed imprisonment for one year and/or SBD 10 000, and the Magistrates’ Court has the power to impose such penalties (sections 4(c) and 7(2) Criminal Procedure Code). If an offence is to be tried “summarily” then it must be tried in a Magistrates’ Court (section 5 Criminal Procedure Code).
Offences committed relating to vessels
Where an offence over which a Magistrate’s Court has jurisdiction is committed or any cause or matter arises in any vessel, such offence may be prosecuted or such cause or matter heard and determined either by the Magistrate’s Court exercising jurisdiction over the place where such vessel is at the time when such offence is committed or such cause or matter arises, or by the Magistrate’s Court exercising jurisdiction over any place where such vessel calls after such commission or arising (section 28 Magistrates’ Court Act).
The quality of prosecutions for wildlife trafficking depends, inter alia, on the available human and material resources, such as staffing levels, staff qualifications and training, and the facilities and equipment available. It is crucial that prosecutors are adequately educated and trained. They must have an in-depth understanding of the relevant legal frameworks and case law, and the technical elements of wildlife crime, as well as the function and operation of every aspect of the criminal justice system. Furthermore, they need to understand the harm caused by wildlife trafficking to the wildlife itself, as well as to the ecosystem in general. Even where comprehensive training programmes exist, it is important that such programmes are reviewed regularly to ensure that they remain up to date and keep pace with legislative and jurisprudential developments, and with the ever-changing nature of wildlife crime (UNODC, 2012; Wyatt, 2013; World Bank, 2018). In many jurisdictions, prosecutors lack the resources to fulfil their duties. In some places, inadequate or unsteady salaries increases the risk of corruption (UNODC, 2012).
Courts, too, must be adequately staffed. Salaries and other entitlements of judges and other staff reflect their responsibilities, qualifications and experience. Judges and their staff also require the basic facilities and may need special equipment to work effectively. For an effective judicial response to wildlife trafficking, it is crucial that judges and their staff be adequately trained. They must be familiar with the relevant background, techniques, processes and legal requirements (UNODC, 2012; Wyatt, 2013; World Bank, 2018). In many countries, the lack of resources prevents courts from fulfilling their duties. Furthermore, as with prosecutors, inadequate or unsteady salaries may increase the risk of corruption (UNODC, 2012).
As with other officials involved in the criminal justice system, prosecutors and judges can be vulnerable to corruption or may collude with persons or organizations involved in illegal acts. Additionally, friction between prosecutors' duties with their personal interests can cause conflict (for example, if relatives or friends are accused of a wildlife or forest offences). Thus, it is important that prosecutors are accountable for their actions, and that the integrity of the prosecution authority and its staff is ensured (UNODC, 2012; for additional reading, see the Module Series on Integrity & Ethics and on Anti-Corruption).