The view on handling acts of smuggling and illegal transport of wildlife is not consistent

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The Illegal transport of 2,052 kg ivory seized by the Ho Chi Minh City Customs in October 2016. Picture: Thu Hoa.

Following the direction of the Prime Minister on the handling of illegal transport cases of ivory, the Ministry of Finance instructed the General Department of Customs to investigate, verify and prosecute cases of smuggling and illegal transport of ivory with large amount hidden in imported goods Sai Gon port and transfer the dossiers and cases to the police agencies for further investigation according to their competence.

Specifically, by the end of 2016 and 2017, Customs authorities have detected six cases and captured a total of 5,113.7 tons of ivory and 277 kg of pangolins at Cat Lai port, Ho Chi Minh City including: 2 containers of 594.7 kg of ivory and 277 kg of pangolins; three containers in transit of 537 kg of ivory; two containers of 2.052 kg of ivory and products processed from ivory; two containers in transit of 862.4 kg of ivory; two containers of 446.7 kg of ivory; and two containers of 619.9 kg of ivory. All 6 cases have been investigated prosecuted by the Anti-Smuggling Investigation Department (General Department of Customs) and the Sai Gon Port Zone 1 Customs Branch (the Ho Chi Minh City Customs Department) and transferred to the Police investigation authority, HCMC Public Security for further investigation.

Considering the report of the Ministry of Finance, Deputy Prime Minister Truong Hoa Binh, Head of the National Steering Committee 389, has directed the Ministry of Finance, the Ministry of Public Security and the Standing Office of the National Steering Committee 389 to engage in handling smuggling cases of ivory.

Particularly, the Ministry of Public Security shall base the report of the Ministry of Finance to direct the investigation police agency of Ho Chi Minh City Public Security to continue to investigate criminal cases of illegal transport of ivory and clarify the smuggling chain and leading perpetrators in order to have strict treatment under the law. Accordingly, ensuring the strict compliance with Vietnam's commitments in the implementation of international conventions and bilateral and multilateral agreements on the protection of endangered wildlife.

Under the direction of the Deputy Prime Minister, the Standing Office of National Steering Committee 389 has worked with the Investigation Police of Ho Chi Minh City Public Security to grasp the progress of investigation and handling of complicated cases.

At the working session, Ho Chi Minh City Public Security has reported in details to the delegation of the Standing Office on the handling of eleven cases involving endangered wildlife products, of which 3 cases have been temporarily suspended, eight cases are in the investigation process. Among six of eleven cases prosecuted and transferred to the police investigation agency, two cases are being investigated, two cases are temporarily suspended because the investigation period has expired under the law, there is no basis for dealing with the involved perpetrators.

According to the Standing Office of the National Steering Committee 389, the view on the handling of the local judicial agencies has not been consistent in goods quantification to determine the penalty framework for smuggling cases. For example, the People's Procuracy of Ho Chi Minh City only based material evidence of the latest case, while the perpetrators have smuggled many times and do not accept the accumulation of infringing goods to handle.

On the other hand, in dealing with cases involving rare wildlife products, according to the investigation police agency, Ho Chi Minh City Public Security, because of lack of legal documents regulating the volume of prohibited goods for this type (how is large, very large, extremely large), as well as possibility to valuate assets as evidence in the case, there are no basis to consider for prosecution of "smuggling" or the crime of "Illegal transportation of goods across borders" (Pursuant to Article 153 and Article 154 of the Penal Code). In addition, cases or information of crimes of "smuggling" and "illegal transportation of goods across the border" must perform the trust to identify consignor from abroad, however, the response to the trust is often delayed or unanswered, leading to difficult processing.

Investigation Police Agency, Ho Chi Minh City Public Security found that there have not enough grounds to prosecute and handle these cases on the crime of "violation of regulations on protection of animals on the list of rare, endangered, specious species prioritized for protection". However, the People's Procuracy does not accept this view.

Specifically, Article 190 of the Penal Code stipulates that "Those who illegally hunt, catch, kill, transport or trade wildlife are prohibited under the Government's regulations or those who engage in illegal transportation and trafficking of products from wild animals are fined 5 millions VND to 50 millions VND or face non-custodial reform for up to 2 years or imprisonment of 6 months to 3 years. The following crimes will face the penalty of imprisonment from 2 years to 7 years: commission in an organized manner; commission with abuse of positions and powers; using banned hunting and catching tools; commission in restricted areas or during prohibited times; causing very severe or particularly serious consequences. Offenders may also be subject to a fine of between VND 2 million and 20 million VND and banned from holding certain posts, practicing certain occupations or doing certain jobs for one to five years.

In the process of settling the above cases, Ho Chi Minh City Public Security, People's Court, People's Procuracy of Ho Chi Minh City has held inter-sectoral meetings many times to remove difficulties and came to a decision that the People's Procuracy of Ho Chi Minh City would be responsible for reporting to the Central Justice Inter-sector for guidance on handling, but until now, the unit has not received any responses.

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On the side of the Standing Office of the National Steering Committee 389, after catching up with the above situation, the unit will synthesize and report to the head of the National Steering Committee 389 to instruct the competent authorities to have specific guidance soon apply to all localities to deal with the same cases.