Published in September 2019
Regional Perspective: Eastern and Southern Africa - added in April 2020
This module is a resource for lecturers
Prosecution and judiciary
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).
Structure and organization
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).
Example: Special Prosecutor in Spain
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.
(European Parliament, Directorate General for Internal Policies, Policy Department A: Economic and Scientific Policy, 2016)
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.
Example: Uganda's Utilities, Standard and Wildlife Court
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.
(Uganda Wildlife Authority, 6 February 2019)
Example: Creation of the National Green Tribunal of India
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.
Example: Court of Environment and Agrarian Issues in the State of Amazonas, Brazil
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.
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).
Accountability and integrity
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 E4J University Module Series on Integrity & Ethics and on Anti-Corruption).