Can Wildlife Rescue be Considered Poaching?

Poaching is regulated in Section 292 of the Criminal Code. This section protects the right of appropriation of the hunting rights holder. It states: ‘Anyone who, in violation of another person’s hunting rights or hunting privileges, pursues, catches or kills game, or appropriates it for themselves or a third party, or appropriates, damages or destroys an item subject to hunting rights for themselves or a third party, shall be punished with imprisonment of up to three years or a fine.’

Time and again, hunters in particular express concerns that rescuing wild animals could be considered poaching. In fact, for non-lawyers, rescuing wild animals is not an easy act to understand. In many cases, rescuing wild animals constitutes catching. Whenever fawns are confined to protect them from being killed by mowers, this constitutes trapping, which objectively fulfils the criteria for poaching. However, trapping alone is not a criminal offence.

The Facts of the Case in Criminal law

Unlike in civil law, criminal law differentiates between the elements of an offence. The elements of the offence are divided into an objective and a subjective part. The objective part is the act that is recognisable from the outside. The subjective part determines the internal circumstances. These characteristics exist only in the person of the perpetrator (e.g. intent). Even if the objective elements of poaching were fulfilled, a criminal offence always requires that the subjective elements also be fulfilled. One characteristic of the subjective elements is at least intent with regard to the objective elements. Since wildlife rescue is carried out to save the wild animal from death and not to appropriate it, it is relatively difficult for the plaintiff to argue that wildlife rescue also fulfils the subjective elements of poaching (here meaning the intent to appropriate).

Poaching Requires at Least Conditional Intent

In order to fulfil the elements of poaching, at least conditional intent is required. Conditional intent (dolus eventualis) is a term that is not uniformly defined and is subject to different interpretations. The outcome of the act (i.e. the appropriation of game) is either accepted with approval, considered purely possible or probable, or accepted with indifference (there are several other theories on this subject). This conditional intent is required at a minimum in order to justify the offence.

Justifiable Conflict of Duties

The farmer who wants to mow his meadow is subject to a so-called ‘conflict of duties’. On the one hand, under the Animal Welfare Act, he is not allowed to kill or injure wild animals without reasonable cause and must therefore take measures to prevent this. On the other hand, he is not allowed to hunt or capture wild animals, as this would constitute poaching. According to Section 1 of the Federal Hunting Act (BJagdG), hunters have a duty to protect wildlife, so the farmer is acting in the hunter’s interest when he rescues fawns. Due to the justifiable conflict of duties, the farmer who rescues the fawns is not acting unlawfully, even if the hunting leaseholder does not agree with the fawn rescue.

Justifiable Emergency

In addition to the justifiable conflict of duties, justifiable emergency can also be argued. Section 34 of the German Criminal Code (StGB) defines justifiable emergency: ‘Anyone who commits an act in a present, unavoidable danger to life, limb, freedom, honour, property or another legal interest in order to avert the danger from themselves or another person is not acting unlawfully.’ However, the protected interest must significantly outweigh the impaired interest. Justifiable emergency removes the unlawfulness of the act, which means that it can no longer be punished. However, it is not always certain whether rescuing wild animals can be considered a justifiable emergency.

The Public Prosecutor Decides

Formally speaking, poaching requires a criminal complaint, which can only be filed by the injured party, i.e. the hunting leaseholder. Criminal proceedings always go through a preliminary investigation in which the initial suspicion of a possible criminal offence is examined. Once the preliminary investigation has been completed, the public prosecutor’s office must decide whether to bring charges or to drop the case. Since Section 292 protects the right of appropriation of the hunting rights holder, appropriation is always the main focus of any charges. However, if the public prosecutor clearly recognises the intention to rescue the game, and thus the intent of appropriation can be ruled out, it can be assumed that the proceedings will be discontinued and there will be no court hearing.

Whenever Possible, Involve Those Authorised to Hunt

However, the best approach is always to involve the person authorised to hunt. Firstly, they usually know their hunting ground best and can therefore provide helpful support. And secondly, there will be no poaching conflict if they are present themselves.

Therefore, every effort should always be made to inform the person authorised to hunt. However, if this is not possible, it can be assumed for the reasons stated above that, from a legal perspective, the rescue of wild animals is considered to be of greater importance than the conflicting claims of the person authorised to hunt.

DJZ lawyer Dr Heiko Granzin wrote an excellent article on this topic in the 4/2023 issue of Deutsche Jagdzeitung (German Hunting Journal) on pages 8–10. The title is: Wer hat nun den “schwarzen Peter”? Under ‘Conflict of duties’, he explains that even if the hunting leaseholder refuses to give his consent to fawn rescue, the farmer is still legally obliged to rescue the fawns before mowing.