dolphins #5
Clemencia Rodner (crodner@conicit.ve)
Thu, 16 Jun 1994 06:16:42 -0400 (AST)
REPUBLIC OF VENEZUELA (Part 1)
Ministry of the Environment and Renewable Natural Resources,
PROFAUNA (National Autonomous Service for the Protection,
Restoration, Promotion and Rational Use of Terrestrial and
Aquatic Fauna).
Caracas, April 25, 1994
Having revised the results of the investigations carried out by
wildlife guards of this Service, contained in the Administrative
Record # 94-02 and instructed to citizens Aldemaro ROMERO DIAZ,
Identity Card # 3.983562, Aisur Ignacio AGUDO PADRON, Identity
Card # 4.852.058, Juan Bautista LEIVA, Identity Card #
13.074.474, and Jesus Marcelino LUGO LUGO, Identity Card #
5.860.994, for presumed infringement of the Law for Protection of
Wildlife and the Resolutions which accompany it, specifically for
the search, persecution, hounding, capture and killing of a
dolphin in territorial waters of the Republic of Venezuela;
Considering
That on January 19, 1994, this Office received from the General
Directorate of Frontiers of the Ministry of Exterior Relations a
copy of a video showing the killing of a dolphin in Venezuelan
waters, in the State of Sucre, in an area of the coast of Paria
Peninsula and on the beach called "La Francesa". Therefore, an
Administrative Procedure and corresponding investigations were
initiated regarding a presumed infringement of the Law for
Protection of Wildlife by the above mentioned citizens.
That for the purposes of this Procedure, a number of informations
and evidences were obtained, the required formalities were
complied with and the pertinent legal proofs were revised,
according to what is established in the Law. All these led this
Office to determine that the Administrative Norms relative to the
protection of wildlife in Venezuela had been violated. To this
effect, this Office proceeded, firstly, to notify the presumed
infractors about the Administrative Procedure that had been
initiated, extending them the corresponding warrants for the
purpose of rendering their testimonies, as established in Article
48 of the Organic Law of Administrative Procedures and, secondly,
to carry out all the probatory processes that would determine
that an infringement had been committed, as it is stated in this
decision and is supported by the proof and documents contained in
the Administrative Record.
That on February 1, 1994, a commission of officials of this
Office traveled to the village of "El Morro de Puerto Santo", in
the State of Sucre, with the purpose of verifying the presumed
administrative infringements that had been committed and to
receive the pertinent testimonies.
That on this same date, citizens Juan Bautista LEIVA and Jesus
Marcelino LUGO LUGO gave their testimonies, the first-mentioned
admitting that he had indeed killed the dolphin, but had done so
following instructions from citizen Aldemaro ROMERO DIAZ; and the
second-mentioned declaring that citizen Aldemaro ROMERO DIAZ had
ordered Juan Bautista LEIVA to harpoon the dolphin, and
expressing also that he had been deceived, the same as Juan
Bautista LEIVA, because citizens Aldemaro ROMERO DIAZ and Aisur
Ignacio AGUDO PADRON had indicated to them that they were
researchers and that what they were doing was a scientific task.
These testimonies are included in the Record of this Procedure.
That on February 2, 1994, citizen Rene Amador LEON GONZALEZ gave
his testimony as witness, declaring that he had met citizens
Aldemaro ROMERO DIAZ and Aisur Ignacio AGUDO PADRON, who
requested that he find for them a fishing boat to hire, since
they were professionals who were trying to conduct scientific
research on cetaceans. They maintained contact with him through
a relative residing in Caracas. He concluded by saying that he
was positive that the fishermen Juan Bautista LEIVA and Jesus
Marcelino LUGO LUGO had been deceived by the above-mentioned
citizens.
That this Office notified citizens Aldemaro ROMERO DIAZ and Aisur
Ignacio AGUDO PADRON of this Procedure, as the Law prescribes,
giving each an express appointment to appear in this Office in
order to rendertheir testimony regarding the events under
investigation, but that neither of them attended the
appointment.
That citizen Aldemaro ROMERO DIAZ publicly recognized, though the
media, television and radio, that he had filmed the incidents
shown in the video sent to this Service and to the First Instance
Criminal and Safeguard of Public Patrimony Court of the Second
Circuit of the Judiciary District of the State of Sucre, which is
included in the Record, and that he had participated in the
capture and killing of the dolphin.
PROFAUNA (Part 2)
That on February 18, 1994, Dr. Jose Antonio MONENTE, Scientific Unit
Director of the La Salle Natural Sciences Foundation, sent a letter to
this Office, notifying that citizen Aisur Ignacio AGUDO PADRON had
donated to his institution "the head of a common dolphin,
collected whole in the coastal area of Paria", as evidenced in
the required form which citizen Aisur Ignacio AGUDO PADRON had to
fill out. Based on these considerations and on the actions taken as
they are described and filed in the Record, before a decision is
taken, this Office presents the following observations: This
Autonomous Service, in compliance with its responsibilities, has
as its fundamental goal the development of a series of objectives
and policies directed towards the conservation, protection,
promotion and rational use of wildlife resources, executed through
permanent, clearly identifiable activities, which seek compatibility
between the economic, social and cultural development of the Nation
and the rational use of its natural resources. These duties and
responsibilities are bestowed upon this Office by the Law for
Protection of Wildlife, the Organic Law of Central Administration
and other related lesser rank legislation. Consequently, it is
the duty of this Office to enforce compliance with all
legislation regarding fauna, including the Law for Protection of
Wildlife, werein it is expressed, in Article 2, a definition of
what wildlife is for the purposes of the Law. Thus, the text reads:
Article 2: To the effects of this Law, it is considered wildlife:"
The mammals, birds, reptiles and batracians that live freely, without
control by man, in natural environments, and which cannot be subjected
to occupation except by force..."Within this juridical context, in
the case under consideration we are faced with a situation that
attempts against the principles, objectives and policies of the
Venezuelan Nation. Within our legal system, to be allowed to hunt it
is necessary to submit to the norms and regulations pertaining to
protection and use of wildlife. Thus, anyone who intends to hunt
for sport, commercial or scientific purposes or pest control,
will have to previously request the corresponding hunting
license, and the latter will be granted according to the wildlife
management research currently progressing. The license cannot be
legally granted if the technical studies determine that it would be
inappropriate; no license can be granted either for animals under
closed season or prohibited, according to the norms in force at the
time, save in those cases of exception stated in the Law for
Protection of Wildlife. Illegal hunting interferes with the species
management programs and plans developed by the Government and
could lead to severe imbalance of wildlife populations, with
potential for placing species in danger of extinction or even
extinguishing them if their hunting has been prohibited because
they are, at any given time, under special protection. It must be
pointed out that dolphins are specially protected under current
Venezuelan wildlife legislation: these mammals are presently under
closed season and their hunting is prohibited as per Article 75
of the Law for Protection of Wildlife and Resolution # RNR-5-276,
dated 11/13/94, in which the Official List of Hunting Species was
issued, and therefore, according to Article 76 ejusdem "it is
completely prohibited to hunt them in any way, time or place..." To
this respect, Article 8 of the above mentioned Law establishes that:
"To the effects of this Law, hunting is in general, the search,
persecution, hounding or killing of wildlife species, as well
as the collection of products derived from them." Non-compliance
with this norms constitutes an administrative infraction. Sanctions
for a administrative infraction are imposed by the authorities of
the Ministry of the Environment and Renewable Natural
Resources according to what is established in TITLE V of the Law for
Protection of Wildlife, based on Articles 114 and 117 ejusdem,
in concordance with Article 36 of the Organic Law of Central
Administration, and independently of any other sanctions, criminal or
of other nature, which may be imposed, based on other pertinent
legislation. Following this order of ideas, as evidenced from
the documents enclosed in the Record, citizens Aldemaro ROMERO
DIAZ, Aisur Ignacio AGUDO PADRON, Juan Bautista LEIVA and Jesus
Marcelino LUGO LUGO, fully identified in this actions,
transgressed against the legislation mentioned above, referring in
the case herein analyzed to the protection of a species of dolphin
in our Nation's Territory. Now, it is evident that each of the
citizens identified above had a role in the commission of the
infraction against the Law for Protection of Wildlife, where it is
established, in Article 102 ejusdem, that the corresponding
sanctions be applied to each one. Citizen Aldemaro ROMERO DIAZ, the
same as the other citizens, acted in the hunting according to the
terms established in Article 8 ibidem, without a license to
legitimate his activities, if such were the case considering the
possibility from the scientific point of view, based in Articles 54,
64 and 78 numeral 1, of the Law mentioned above. Furthermore,
citizens Aldemaro ROMERO DIAZ and Aisur Ignacio AGUDO PADRON
ordered the capture and violent sacrificing (killing) of the animal
and transported its byproducts, all these actions being illegal
since they transgress against Articles 9, 41, 42, 47, 50, 64, 65,
68, 76, and 81 ordinal 3, of the Law for Protection of Wildlife.
Citizen Aisur Ignacio AGUDO PADRON, on his part, transgressed
against Articles 9, 41, 42, 47, 50, 64, 65, 68, 76 and 81 ordinal 3,
of the Law for Protection of Wildlife. Citizen Juan Bautista LEIVA
violated Articles 9, 42, 50, 68, 76 and 81 ordinal 3, of the Law for
Protection of Wildlife. Citizen Jesus Marcelino LUGO LUGO violated
Articles 9, 42, 50, 68, 76 and 81 ordinal 3, of the Law for
Protection of Wildlife.For all the reasons of deed and law
explained above, and based on the actions and documents included in
the Administrative Record, the undersigning, Jose Luis MENDEZ AROCHA,
General Sectorial Director of the Autonomous Service Profauna,
availing himself of the attributions conferred on him by Articles
102, 114 and 117 of the Law for Protection of Wildlife in
concordance with Resolution 149, dated October 8th., 1992, published
in the Official Gazette No 35,070 of October 15th., 1992, and in
accordance with Article 100 and 101 of the Law mentioned ut supra;
Decides: To impose on citizens Aldemaro ROMERO DIAZ and Aisur
Ignacio AGUDO PADRON a fine of fifty thousand Bolivars (Bs.
50,000), to be paid by each one, based on Articles 104, 108, 109
and 113 of the Law for Protection of Wildlife. To impose on
citizens Juan Bautista LEIVA and Jesus Marcelino LUGO LUGO a fine of
five thousand Bolivars (Bs. 5,000), to be paid by each one, based on
Articles 104 and 113 of the Law mentioned ut supra. To advise
those sanctioned of this Administrative Action, as established
in Article 73 of the Organic Law of Administrative Procedure,
warning them as well that, based on Article 80 numeral 2 ejusdem,
once advised of this Action they must proceed to pay the fines in the
term indicated in the respective payment form, and if not, for
each day of delay in the payment, subsequent fines of Bolivars 100
per day will be imposed. If they persist in not complying they will
be sanctioned with new fines, equal or larger than those already
imposed. To send to the First Instance Criminal and Safeguard of
Public Patrimony Court of the Second Circuit of the Judiciary
District of the State of Sucre the Administrative Record of this
cause, so that the corresponding criminal actions may proceed,
according to the Criminal Law of the Environment and other laws that
may apply.
Jose Luis MENDEZ AROCHA, GENERAL DIRECTOR
Resolution No. 61, date February 7, 1994 Official Gazette No.
35,405, dated February 21, 1994
Translators Note: Ministry of Exterior Relations = State Dept.