Legal Situation Regarding Wildlife Rescue
Preliminary Remark
Below, we would like to provide an overview of the legal situation and some court rulings. This is neither legal advice nor a call to take confrontational action against farmers. Successful wildlife rescue is achieved above all through good cooperation and trust between all parties involved.
Mowing is a time of considerable time and psychological stress for farmers. In general, many farms are under considerable (financial) pressure and stress. Instead of condemning them, we call on them to get in touch and offer help and support in rescuing wild animals, preferably through established associations.
Wildlife rescue is a collaborative effort between farmers, contractors, hunting licence holders and volunteers. Wildlife rescue prevents suffering
Which Laws are Relevant?
On 1 August 2002, an amendment to the Basic Law came into force, with three words being added to Article 20a: ‘and animals’. Since then, it has read: ‘The state shall also protect the natural foundations of life and animals within the framework of the constitutional order through legislation and, in accordance with the law and justice, through the executive power and the judiciary, in responsibility for future generations.’ Animal welfare thus became a state objective, i.e. a constitutional norm with legally binding effect.
Section 1 of the Animal Welfare Act (TierSchG) also stipulates that no one may cause pain, suffering or harm to an animal without reasonable cause. In addition, Section 1 of the Federal Hunting Act (BJagdG) clearly obliges those who have hunting rights to protect wildlife. In addition to the BJagdG, each federal state has its own legislation due to legislative responsibilities. In Brandenburg, for example, Section 1 LJagdG Bbg describes the duty of care as a task for society as a whole. Similar wording can also be found in other state hunting laws. The Federal Nature Conservation Act (BNatSchG) is even stricter. According to Section 39 (1), it is prohibited to deliberately disturb wild animals or to catch, injure or kill them without reasonable cause.
Article 20a of the Basic Law has a very special significance for the issue of mowing deaths, as it implicitly requires the application of protective measures where such measures are available.
Can wildlife rescue be considered poaching?
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 actually constitutes catching them. Whenever fawns are confined to protect them from being killed by mowers, this constitutes catching, which is a preliminary stage of poaching. However, catching alone is not a criminal offence. Poaching is a criminal offence. It is regulated in Section 292 of the Criminal Code. In criminal law, however, a distinction is made and the offence is divided into an objective and a subjective part. The objective part is therefore 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. However, a plaintiff will find it difficult to argue that rescuing game also fulfils the subjective elements of poaching. At least conditional intent is necessary to fulfil the elements of hunting poaching.
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). However, this puts us at the lower end of the scale of criminal offences. This is the minimum requirement to justify the offence at all.
Formally speaking, poaching requires a criminal complaint, which can only be filed by the injured party. Criminal proceedings always go through a preliminary investigation in which the initial suspicion of a possible criminal offence is investigated. Once the preliminary investigation has been completed, the public prosecutor’s office must decide whether to bring charges or to discontinue the proceedings. 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 to appropriate can be ruled out, the proceedings will be discontinued at this point at the latest and there will be no court hearing. Therefore, no one – not even a hunting licence holder – needs to worry that they will be prosecuted for poaching if they rescue game in a proper manner.
What are the Legal Consequences of Mowing Wild Animals?
According to Section 17 of the Animal Welfare Act, any violation of the aforementioned laws is punishable by imprisonment of up to three years or a fine. The offence is committed if a vertebrate animal is killed without reasonable cause or if a vertebrate animal is subjected to cruelty causing it considerable pain, suffering, prolonged or repeated considerable pain and suffering. However, a violation only occurs if this is done intentionally or is accepted as a possible consequence of an action.
Of course, no farmer intends to kill animals during mowing. However, according to relevant case law, it is sufficient for this to be considered acceptable if no precautions were taken, even though fawns were found on the land the previous year. Even if a fawn has already been killed or injured on the land, mowing must be interrupted and precautions taken to ensure legal certainty.
Who is Obliged to Rescue Wild Animals Under the law?
Fundamentally, the question arises as to who is legally responsible for protecting young wild animals during mowing and to what extent a person can be held liable for this. The above-mentioned laws show that in Germany it is not the hunter’s responsibility to protect wild animals from being killed by mowing. Although they are obliged to protect wildlife under Section 1 of the Federal Hunting Act (BJagdG), existing laws and court rulings mean that they play a subordinate role. Rather, it is the farmer or the actual machine operator who is responsible for ensuring that animals are not killed or endangered during mowing. There are already several court rulings on this issue. Various judgements are described in more detail below.
What Does Case law say About Death by Mowing?
Judgment of Wolfach Magistrates’ Court (Ref.: 1 Cs 301 Js 9380/13) – Farmer convicted
A farmer was fined €3,000 after knowingly injuring and killing two fawns while mowing his meadow. The farmer appealed the decision, arguing that the hunter he had informed was responsible for the animals. On 4 December 2013, the Wolfach District Court imposed a fine of €4,000 and a one-year suspended prison sentence on the farmer. The judge considered the killing of the animals to be intentional, as the farmer mowed down a second fawn shortly after seriously injuring the first. The farmer should have taken measures to save a possible second fawn from death. (Ramsteiner, 2014)
Judgment of Hadmar Magistrates’ Court (Ref. 1 Ds – 3 Js 12550/03) – Farmer convicted
Another case was heard by the Hadmar Magistrates’ Court in its ruling of 29 September 2004. Two farmers were fined €3,200 and €2,400 respectively after mowing down eight fawns. As in the previous case, the judgement was based on the farmers’ reckless behaviour and their resulting intention to kill the animals. The reason given was a violation of Section 1 of the Animal Protection Act (TierSchG).
At the annual hunting association meeting last March, it was agreed that farmers should notify the local hunter 24 hours before mowing due to the high expected fawn population. During the first mowing of the meadow that followed, the two convicted men were late in complying with this agreement and, despite the verbal agreement, mowed two fawns to death before the hunter arrived. The hunter wanted to search the meadow beforehand, but did not get around to doing so. One day later, the two again failed to report their intended mowing and once again accepted the death of six more fawns. (Pückler, 2005, p. 125 f.)
There have been further convictions in recent years. To date, the offences have been punished with fines ranging from €1,000 to €4,200. A one-year suspended prison sentence is the most severe penalty imposed to date.
Offenburg Regional Court ruling – farmer acquitted
On 6 November 2014, a farmer was acquitted for the first time of killing two fawns. The Offenburg Regional Court acquitted the farmer in the second instance, although he had been given a suspended fine in the first instance for violating the Animal Welfare Act. The judge’s ruling was based on the fact that the farmer’s actions could not be proven to have been intentional. It was deemed to have been an unfortunate incident involving a certain degree of negligence. (Deter, 2014)
Judgment of the Weilheim i. OB. Local Court (Ref. 2 Cs 12 Js 17946/09) – Farmer and contractor convicted
A farmer failed to notify the local hunting leaseholder of the mowing date for his meadow, even though the leaseholder had asked him several times to do so by telephone. When the hunting leaseholder’s wife happened to see that the farmer was mowing his meadow, she immediately went to the site. The meadow was being mowed by a contractor working on behalf of the farmer. She pointed out to the contractor that there were very likely fawns in the meadow. The hunting leaseholder’s wife asked the driver to stop work immediately so that the meadow could be searched beforehand. The hunting leaseholder himself and other helpers were still busy searching for fawns in another meadow at the time and wanted to come and help search the affected meadow immediately afterwards.
After the contractor consulted with the farmer, the farmer instructed the driver to continue mowing without searching for any animals due to time and cost considerations. Three fawns were killed during mowing on the 20-hectare meadow.
The hunting leaseholder then filed a complaint. During the questioning of witnesses, it emerged that it was not the contractor himself but an employee of the contractor who had mowed the meadow. Proceedings were initiated against the farmer and the contractor’s employee for violating the Animal Welfare Act (Section 17 TierSchG).
A judge at the Weilheim i. OB. District Court convicted the farmer of incitement to commit three concurrent offences under the Animal Welfare Act (Section 17 Animal Welfare Act, Sections 26 and 52 Criminal Code). The judgment was based on the fact that mowing continued despite warnings from people on site and that the death of the animals was accepted as a necessary consequence.
The farmer was therefore fined 70 daily rates of 40 euros each, totalling 2,800 euros. The farmer had to bear the costs of the proceedings and his own expenses. This resulted in total costs of 4,000 euros for the farmer.
The contractor’s driver was sentenced to 50 daily fines of 40 euros each, totalling 2,000 euros. He also had to bear the costs of the proceedings and his own expenses. This resulted in total costs of €3,000. Reason: Despite being warned about the possible presence of fawns in the meadow, the employee continued mowing and thus accepted the death of the animals.
Judgment of the Trier Regional Court (Ref. 1 S 183/04) – Farmer convicted
In addition to a penalty for violating the Animal Welfare Act, farmers are also liable for damages. This is evident from two legally binding judgements by the Trier Regional Court, reference number 1 S 183/04, and the Bitburg Magistrates’ Court, reference number 5 C 327/04. According to these rulings, a farmer was ordered to pay damages amounting to €1,377.35 (2 x €680 + €17.35 flat-rate expenses). The farmer had not taken any precautions, even though a hunter had pointed out to him that there were two fawns in his meadow that was due to be mowed.
The farmer accepted the death of the two animals. In the court’s opinion, the hunter’s right to hunt and the associated right of appropriation had been violated. The high monetary amount is justified by the breeding value of the fawns, as the price of live animals can be claimed as compensation. This was justified by the fact that it was the hunter’s intention to save the fawns from death. Therefore, it was not the price of the game that had to be reimbursed, but the price of replacing two live animals and the associated expenses. (Hardt, 2014)
In Summary, What are the Legal Consequences?
The court rulings listed here are essentially individual case decisions and particularly serious cases. However, case law shows a clear trend that a conviction is very likely and obvious. Anyone who intentionally or negligently causes death by mowing is committing a criminal offence. Farmers are obliged to actively participate in the rescue of wild animals. Due to their legal obligation to protect wildlife, they run the risk of being prosecuted, especially if they do not coordinate with the hunter, do not announce the mowing dates or fail to take their own measures. In addition, there is the risk that a farmer may have to pay damages to the hunter.
A fine, regardless of the amount, can be considered relatively harmless. However, if the person is convicted again, they are already considered to have a criminal record. In concrete terms, this means that a prison sentence may be imposed even for a second conviction. Contractors and their employees are also obliged to take precautions. The solution to this problem is wildlife rescue in cooperation between farmers, contractors, hunting licence holders and volunteers.