Nguyen Viet Anh, Tran Thi Nhu Hoa, and Pham Thi Hoa
 |
| Nine wild animals are released back into their natural habitat in U Minh Ha National Park, Ca Mau province__Photo: VNA |
Handling of material evidence is one of criminal proceedings carried out by competent proceeding-conducting bodies in the settlement of criminal cases. Proper handling of material evidence helps ensure the fair settlement of criminal cases and improve the effectiveness of crime prevention and combat activities. Competent people and bodies that handle animals with probative value in criminal cases in accordance with law will contribute to effectively settling criminal cases, guaranteeing the State’s interests and protecting endangered, precious and rare wild animals in the country. Handling of material evidence being live endangered, precious and rare animals consists of two stages: issuance of a decision on handling of material evidence; and execution of the decision on handling of material evidence.
Evaluation of Vietnam’s regulations on handling of material evidence being endangered, precious and rare animals
Protecting endangered, precious and rare animals is one of urgent biodiversity protection issues. The 2015 Criminal Procedure Code (the Code) provides the handling of material evidence being animals in Article 106.3.d: “Material evidence being wild animals and exotic plants shall be handed over to competent specialized management bodies for handling in accordance with law immediately after expert assessment conclusions are made.”. In most wildlife-related criminal cases, animals are trapped, captured, kept in captive and transported in poor conditions. Most of them are also infected, injured and unhealthy. Since those animals need to be quickly and promptly cared for, nurtured and rescued, the Code contains such provisions to optimize the protection of wild animals in wildlife-related criminal cases.
The authority to handle material evidence is provided in Article 106.1 of the Code as follows: “The handling of material evidence shall be decided by investigation bodies or bodies assigned to carry out a number of investigation activities if criminal cases are terminated at the stage of investigation; or by procuracies if criminal cases are terminated at the stage of prosecution; or by chief justices of courts if criminal cases are terminated at the stage of trial preparation; or by trial panels if criminal cases are brought for trial. The execution of decisions on handling of material evidence shall be recorded in writing.”. Accordingly, there is no body that automatically has the authority to decide on handling of material evidence being endangered, precious and rare animals. Such authority will be decided for each stage of criminal case settlement.
The Supreme People’s Court’s Judicial Council’s Resolution 05/2018/NQ-HDTP, the Ministry of Agriculture and Rural Development’s Circular 29/2019/TT-BNNPTNT, and Government Decree 06/2019/ND-CP also have provisions on handling of material evidence being wild animals. Specifically, Decree 06/2019/ND-CP provides the order of priority for handling live animals: (i) releasing them into their natural habitats if they are healthy; (ii) transferring them to animal rescue facilities, scientific research institutions or zoos if they are unhealthy; and (iii) destroying them in accordance with law. However, the fact that these legal documents still contain unspecific and inconsistent provisions, especially those about handling forms, causes not a few difficulties for competent persons and bodies in handling material evidence[1]. That’s why judges usually find it difficult to make rulings to confiscate material evidence for remittance into the state budget or hand them over to research agencies or forest protection offices for handling. As per the law, live endangered, precious and rare animals are special objects under the entire-people ownership. In essence, this type of material evidence is a public asset belonging to the group of property subject to establishment of the entire-people ownership[2]. Therefore, the handling of such type of material evidence must also comply with the procedures for establishing the entire-people ownership specified in Decree 29/2018/ND-CP and guided in the Ministry of Finance’s Circular No. 57/2018/TT-BTC. In practice, such procedures involve numerous stages and time-consuming formalities which are likely to affect the process of proper handling of material evidence, particularly material evidence being wild animals to be handled by release into their natural habitats[3].
Practical implementation of regulations on handling of material evidence being endangered, precious and rare animals in the country
Since endangered, precious and rare wild animals are facing a very high risk of extinction, protection must be carried out in a strict manner to ensure their natural habitats and favorable conditions for their survival while prohibiting activities harmful to their survival and development. Given the critical importance of those animals in maintaining biodiversity, they must be handled as evidentiary materials in a swift, prompt and effective manner. However, in their practical trial activities, Vietnamese courts have based themselves mainly on the Code and Resolution 05/2018/NQ-HDTP to rule on the handling of material evidence being endangered, precious and rare wild animals in the form of handing them over to specialized management agencies for release/reintroduction into the wild or transferring them to animal rescue centers, nature reserves or national parks.
Despite existing domestic regulations on handling of confiscated animals by transferring them to animal rescue centers, implementation thereof is challenging due to the scarcity of rescue centers in the country. In most cases, confiscated animals must be transported a long distance to reach a rescue center. According to the Wildlife Conservation Society (WCS) Vietnam, there are 15 rescue centers nationwide, including five centers of non-governmental organizations focusing only on a few priority species such as bears, pangolins, turtles, primates, etc. Other State-run centers still have limited facilities, funding and human resources and are unevenly distributed, resulting in slow and ineffective handling of material evidence being endangered, precious and rare animals.
Funding for captivity and reintroduction of confiscated animals into the wild is also a big challenge. Although Article 4.3 of Circular 29/2019/TT-BNNPTNT stipulates: “Funding for care and preservation of forest animals being material evidence in temporary custody is provided by the laws on handling of administrative violations and criminal procedure”, no official fund was established for these activities. High costs associated with raising and caring for confiscated endangered, precious and rare animals, including feed and hiring veterinarians, constitute a significant barrier making many rescue centers unwilling to receive such animals. Human resources for the job also remain very limited in terms of expertise and local budget allocation.
At present, euthanasia is suggested in response to the lack of funding for handling material evidence being endangered, precious and rare animals. However, since the handling of this type of material evidence requires strict application of law-specified forms to optimally protect the status, characteristic and population of such endangered, precious and rare animals, the euthanasia method proves unreasonable and not consistent with the Party’s and the State’s biodiversity protection policies[4].
 |
| Two red-shanked douc langur individuals in Son Tra peninsula, Da Nang city__Photo: Van Dung/VNA |
Legal improvement recommendations
Firstly, to ensure consistent handling of material evidence being endangered, precious and rare animals among responsible bodies, a consolidated legal document that clearly specifies forms, procedures and authority for handling such material evidence should be issued in conformity with practical conditions and in consistency with the national legal system and conventions that Vietnam has signed or acceded to.
Secondly, the specialized responsible bodies and their respective roles in handling material evidence being endangered, precious and rare animals should be specifically defined in order to avoid pushing around responsibility between agencies in the process of rescuing and preserving or nurturing those animals[5]. For specialized bodies such as forest protection forces, requirements and conditions for providing forest rangers with professional knowledge for identifying and caring for endangered, precious and rare animals should also be specified. A fair commending and sanctioning system should be implemented to motivate officers to improve their skills to better contribute to wildlife and biodiversity protection.
Thirdly, it is advised to issue regulations specifying cases in which private zoos may participate in the handling and management of material evidence being live endangered, precious and rare animals, and providing tax, investment and loan interest incentives for them for doing so in order to optimally use available social resources for the settlement of criminal cases involving wild animals.
Lastly, unnecessary procedures for handling material evidence being live wild animals should be simplified to avoid difficulties and delays in wildlife rescue, thereby facilitating the settlement of wildlife-related criminal cases.-
[1] For example, Article 10.1.b of Decree 06/2019/ND-CP provides forms of destruction of material evidence while Article 7.1.a of Resolution 05/2018/NQ-HDTP does not mention these forms.
[2] Article 3.b of Decree 29/2018/ND-CP on order and procedures for establishing the entire-people ownership of property and handling of property under the entire-people ownership.
[3] Health and natural instincts/behaviors of to-be-released wild animals might be seriously affected or lost, making them unable to adapt to and survive natural habitats, if the handling process is prolonged. Besides, due to insufficient funding and preparations, the reintroduction of endangered, precious and rare wild animals in the wild often fails to achieve desired outcomes in uncontrollable situations and does not meet demand of the International Union for Conservation of Nature.
[4] Article 5.1 of the 2008 Law on Biodiversity stipulates: “Giving priority to the conservation of natural ecosystems that are important, specific or representative for an ecological region and the conservation of species on the List of endangered precious and rare species prioritized for protection; ensuring control of access to genetic resources.”
[5] More wildlife rescue centers should be established evenly throughout the country, especially in wildlife-related violation hotspots such as Hanoi, Ho Chi Minh City, and Nghe An, Thanh Hoa, Quang Ninh, Son La and Central Highlands provinces.
