This presentation focuses on one of the recommendations regarding application of the Bern Convention, more specifically a one dealing with sanctions in the field of nature conservation. There is no doubt that the legal regulation of criminal liability contributes to conservation succes in protection of nature. However, it demands proper and harmonized application to work effectively. Therefore, the reccomendations are important and may serve as guidelines in decision-making for the official authorities and the national courts. I am going to introduce the Bern convention first and also emphasize the role of various recommendations, guidelines and case law in environmental liability matters. Than I am going to focus on particular questions regarding imposing sanctions in wildlife crimes and the content of the Bern Recommendation No 177 adpoted in 2015. The Bern Convention on the Conservation of European Wildlife and Natural Habitats, also known as the Bern Convention (or Berne Convention), is a binding international legal instrument in the field of Nature Conservation, it covers the natural heritage in , as well as in some African countries. The Convention was open for signature on 19 September 1979 and came into force on 1 June 1982. It is particularly concerned about protecting natural habitats and endangered species, including migratory species.

It is the only regional Convention of its kind worldwide, and aims to conserve wild flora and fauna and their natural habitats, as well as to promote European co- operation in this field. The treaty also takes account of the impact that other policies may have on natural heritage and recognises the intrinsic value of wild flora and fauna, which needs to be preserved and passed to future generations.

The Convention attracted broad participation, with 51 parties, among which all EU Member States, most members of the (Russia being a notable exception) and a few African countries.

The aims of this convention are to conserve wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the co- operation of several states, and to promote such co-operation; particular attention is given to endangered and vulnerable species, including endangered and vulnerable migratory species; special emphasis is also placed on the protection of habitats; contracting parties are, in that respect, under the obligation to take measures to ensure the conservation of habitats of the wild flora and fauna species and the conservation of endangered natural habitats; furthermore, parties in their planning and development policies shall have regard to the conservation requirements of the areas set aside for those purposes. The Bern Convention covers the natural heritage in Europe, as well as in some African countries. For those more familiar with European law, the Bern Convention served as an inspiration for the 1992 Habitats Directive. Key provisions on species protection and habitat protection in the Bern Convention have been, along the same lines, copy- pasted into the Habitats Directive. International, European and national wildlife laws’ basic structure is identical in the sense that these laws contain species protection provisions, protecting the animal wherever it goes (e.g. hunting prohibitions), and habitat protection provisions, protecting the areas where these animals live. The Bern Convention is not much different on this point.

Wilderness protection as such is not required by the Bern Convention in so many words.

Specially protected flora species are listed in Appendix I, specially protected fauna species in Appendix II, and protected fauna species, the harvesting of which is authorized but must be regulated, in Appendix III; Appendix IV lists prohibited means and methods of killing, capture and other forms of exploitation.

Although the convention dates back to 1979, and its spirit remains unaltered in the articles of the treaty, its appendices are constantly updated and renewed. They include extensive lists of protected wild species (flora and fauna) and habitats, as well as a list of prohibited means and methods of killing, capture and other forms of exploitation. Additionally, the scientists mandated to represent the countries in the different groups of experts are called to develop action plans, guidelines and codes of conduct to meet the most pressing requirements for the conservation of at any given time. Contracting Parties are required to coordinate their efforts in respect to migratory species and to ensure that their procedures in this regard are adequate to protect such species. Contracting Parties are obliged to regulate taking of species. Details of these obligations are set out in the comment appended to each Annex. Methods of taking which are indiscriminate or which are capable of causing local disappearance of a species or which may cause serious disturbance to a population are prohibited. Contracting Parties are also required to promote education and to disseminate information on the need to protect species and habitats and to control the introduction of exotic species.

Some animals are on Appendix II, making them strictly protected species. It is for those animals prohibited to be killed, disturbed, damaged etc. Other wild animals are enlisted on Appendix III and do not benefit from the prohibition to be killed or captured. Populations of the latter animals have to be kept out of danger. The Convention also requires parties, in pretty generic terms, to ensure habitat conservation (art. 4). This provision has been further developed through the designation of Areas of Special Conservation Interest under the Emerald Network. In the , the sites are their contribution to the Emerald Network. Here is the map of the Emerald and Natura 200 network. The stipulations of the Bern Convention focus on prohibition of certain activities, but do not deal with prosecution or punishment. The recommendations are based on obligation of the Parties to co-operate whenever appropriate and in particular where this would enhance the effectiveness of measures taken under the Convention. This includes also criminal enforcement of the nature conservation. The convention has produced extensive guidance and standards, including species actions plans, strategies, and almost 200 recommendations and resolutions to help countries improve their national policies on nature conservation. The Bern Convention has combined concrete and practical action on the conservation and management of key species and sites with more strategic and forward‐looking instruments on complex issues, long before they were subject to legislation, like invasive alien species or biodiversity adaptation to . This work on current and relevant issues, developed in partnership and cooperation with other biodiversity conventions, the scientific community and non‐governmental organizations, is one of the convention's strengths that has continued to motivate European countries to join and support this multilateral environmental agreement.

The enforcement powers of the Standing Committee, the body entrusted with the task of monitoring the application of the Bern Convention, exercises its power in an innovate way, in particular through the case-file procedure. In the European Union, the European Commission takes up a similar role via the infringement procedure.

The enforcement powers of the Standing Committee, if one looks at the final result that can be obtained, are rather underwhelming. The Standing Committee cannot do much more than issue, as the appellation suggests, non-binding recommendations, only able to facilitate, rather than coerce Member States into compliance. In daily practice, however, the procedure stands out in several respects. These recommendations are more flexible than judgments are, not focusing on assessing whether legal provisions were violated, but formulating practical, tailor-made measures to address specific conservation concerns on site.

Interestingly, the most significant compliance tools are not explicitly provided for in the Convention. There is no explicit provision for a compliance-focused procedure within the Bern Convention. The Contracting Parties, through a bold interpretation of existing Convention provisions, determined that these provisions provided a sufficient basis for the development of the case-file procedure.

There are different types of reporting under the Bern Convention, even though only one of them is compulsory under the terms of the convention. This is the system of the “biennial reports”, which all Parties making exceptions to the provisions of the Convention, in compliance with the strict terms and conditions spelt out in Article 9 must submit to the Secretariat every two years. These reports must contain a scientific assessment of the impact of such exceptions to the general obligation to protect the species and habitats covered by the Convention. The biennial reports are presented each year to the Standing Committee for examination.

In addition, parties are invited to submit “general reports” on the national implementation of the Convention every four years, on a voluntary basis.

Besides, the Groups of Experts set under the Convention also monitor the implementation of both the Treaty and the Recommendations adopted by the Standing Committee. These concern the conservation status of species or habitats, or specific conservation challenges.

The Standing Committee has a broad mandate to make recommendations to individual parties and these recommendations may be site or activity specific, such as the removal of buildings on a nesting beach or rerouting a road likely to impact on a critical habitat. The recommendations may be targeted even towards the World Bank (WB) and the European Bank for Reconstruction and Development (EBRD) - and as a result, the banks should immediately suspend financing the project in question until a proper environmental impact assessment is carried out.

Over the years, the Standing Committee felt increasingly reluctant to open new case- files, trying to avoid the common perception that opening a case-file means there is a presumption of breach. To circumvent this perception the Standing Committee sometimes decided to not open a case-file but investigate the matter more informally, focusing on the adoption of recommendations to improve wildlife protection in practice. In 2015, the mediation procedure was formalized under the Bern Convention.

The mediation procedure is kicked off, by a Standing Committee decision, mostly after submission of a complaint that did not have enough gravitas to justify the opening of a case-file. The mediation procedure is subject to agreement of the Contracting Party involved. An expert is appointed, a so-called ‘honest broker’ who acts as a mediator. Here is the list of some current case-files and complaints on stand-by. Although the Bern Convention’s added value is most apparent beyond the EU, it arguably plays, because of its practical approach, a distinct role within EU Member States as well.

Large-scale projects are often at least co-financed by institutions that care about their reputation and are not insensitive, not even to, non-binding recommendations.

Although the Bern Convention recommendations are not binding, these are flexible in their application, and, strengthened by the Standing Committee’s ability to gather information from the site in question, allow the Standing Committee to make practical, site-specific recommendations, rather than simply relying on desk studies/reports. The main reason why the recommendations in criminal law are considered useful is that the harmonization is not comperhensive. There is usually a general obligation of the states of effective enforcement of international or EU law, or specific obligations on effective enforcement (for example in particular EU directives). However, the situation in each state differs due to various aspects of the criminal liability system. Now, lets take a look at the level of harmonization of penalties and sentencing in the ECHR and EU law regime.

Directive 2008/99/EC lays down a list of environmental offences that must be considered criminal offences by all Member States, if committed intentionally or with serious negligence. It does not create a list of new illegal acts. The existing law already provides for these prohibitions. The Member States, by transposing this directive will only have to attach to these existing prohibitions some criminal sanctions. Member States must ensure that the commission of the offences is subject to effective, proportionate and dissuasive criminal sanctions. For legal persons the sanctions can be of a non criminal nature. We may also see that the concept of crime and criminal sanction has been harmonized to certain extent in both ECHR and EU case law. And the case law of the CJEU and the ECtHR also deals with some basic concepts and principles of criminal liability such as the ne bis in idem principle. However, the case law of the CJEU and the ECtHR does not provides much guidance on proportionality or gravity factors in specific cases. To give an example, the CJEU concluded in case C-487/14 concerning transboundary shipment of waste that the national authorities should take into account the risks which may be created by that infringement in the field of the protection of the environment and human health, whether the amount of the penalty does not go beyond what is necessary to attain the objectives of ensuring a high level of protection of the environment and human health.

In other cases, this time concerning carbon dioxide equivalent allowance trading scheme, the CJEU shared rather strict opinion on the discretion of the national authorities in sentencing the producers which have not surrendered allowances for some installations. The recommendations and guidelines in the field of ciminal law may fill the gaps left by the international or EU legislator, enhance communication of information throughout the enforcement chain and help the authorities to take into account all the important aspects of the case.

The Bern Convention has produced extensive guidance in the form of recommendations. Here is the list of the links to the particular recommendations. As you can see, they are numbered and reach two hundred recommendations in 2018. As an example, you can see several recommendations adopted which - encouraged Parties to ensure the prosecution of persons illegally catching or killing birds or establishments commercialising live and/or protected birds, - Identified a series of urgent measures to enhance enforcement of existing legislation at each stage of the bird-crime chain through appropriate political, judicial, operational, scientific and technical support and cooperation, - Urged to implement the TAP measures. The Tunis Action Plan described objectives, actions, timelines, responsible bodies regarding establishment of national wildlife crime priorities, Conservation Impact Statements (CIS) and elaboration of sentencing guidelines. It also listed some gravity factors for the sake of their identification and standardisation, - Sugeested setting-up of national policing/investigation priorities, - Recommended establishment of a Scoreboard for measuring progress in combating illegal killing, taking and trade of wild birds.

There are three main areas the recommendation focuses on: gravity factors, principles of sentencing and inter-sector cooperation at the national level.

The recommendation is targeted towards both contracting parties and observer states. , , the Holy See, and Russia are among non- signatories that have observer status at meetings of the committee. The full analysis of Gravity factors can be found in document T-PVS/Inf (2015) 12: https://rm.coe.int/1680746825

‘Conservation status of species’ includes: consideration of any IUCN, Bern Convention, EU Nature Directives or other international listing or standards which evaluates conservation concern; whether the crime targets or impacts adversely local, national or international conservation measures or places of conservation activity. Listed as a criterion for national priorities, and cf. to ‘nature conservation hotspots’ criterion.

‘Impact risk for ecosystem’ includes an assessment of: (i) the actual or potential damage to habitat; if reparable, the cost of actual damage or loss eg. of restoration, restocking, or whether damage was irreparable; (ii) the actual or potential impact on local, national or regional population(s) of the species affected by the offence(s); (iii) the potential or actual damage the type of offence, the way it was committed, has previously caused or could have caused. Listed as a criterion for national priorities.

Recognition should be given to ‘international solidarity’ in that the Convention objectives are sufficiently important to require binding commitments from national governments to achieve them and require mutually consistent enforcement across all Parties to be achieved.

Consideration may be given to the actual damage to habitat or loss to populations or species the method has caused and any potential or actual damage or loss that method has previously caused.

‘Commercial motivation’ includes: any planned activity aiming for financial benefit whether of the offender or another person, as well as organised (especially serious) crime, particularly if trans-national.

‘Illegal gain/quantum’: includes actual gain as well as potential gain had the offence been fully completed. ‘Prevalence of offence and the need for deterrence’ includes: whether the habitat or species is frequently targeted generally, or where the offence is prevalent in an area (‘black spot’). These suggest a particular need for stronger deterrence by way of heavier sanction. Cf. list of criteria for national priorities.

‘Professional duty on defendant to avoid committing offence’ includes: persons (whether natural or legal) in the course of trade or business committing offence(s) to assist the business (eg. pet shop owner, property developer), those employed to carry out tasks for another’s benefit who choose to do so in an illegal way against wildlife (eg. gamekeeper), as well as those granted licences, or exercising rights, to carry out activities in connection with wildlife which would otherwise be illegal (eg. licensed or other legal hunter) who commit offence(s) against wildlife.

Numbers can be assessed either in absolute terms, or relative to the species involved, ie. a small number of one species may have a greater impact on it (locally, nationally or internationally) than a greater number of a more numerous species, or if relevant, both can be used.

This includes the culpability of the accused person, including the level of involvement in committing the offence and whether he/she was the ultimate ‘beneficiary’ of it.

Consideration should always be given to whether the offender has committed wildlife offences previously and to the level of sanctions previously imposed. ‘Repeat offenders’ should usually receive heavier sanctions. The full proposals for informing the process for the imposition of sanctions in wildlife crime cases, especially the illegal killing, taking and trading of wild birds can be found in document T-PVS (2015) 3: https://rm.coe.int/1680746a44 The full proposals for informing the process for the imposition of sanctions in wildlife crime cases, especially the illegal killing, taking and trading of wild birds can be found in document T-PVS (2015) 3: https://rm.coe.int/1680746a44 The full proposals for informing the process for the imposition of sanctions in wildlife crime cases, especially the illegal killing, taking and trading of wild birds can be found in document T-PVS (2015) 3: https://rm.coe.int/1680746a44 The full proposals for informing the process for the imposition of sanctions in wildlife crime cases, especially the illegal killing, taking and trading of wild birds can be found in document T-PVS (2015) 3: https://rm.coe.int/1680746a44 The full proposals for informing the process for the imposition of sanctions in wildlife crime cases, especially the illegal killing, taking and trading of wild birds can be found in document T-PVS (2015) 3: https://rm.coe.int/1680746a44