The 2012 photo that ‘incriminated’ the NGO’s volunteers.

“Legally correct but illogical” is how lawyers described a magistrate’s decision to order the police to charge six Birdlife activists with illegal possession of dead protected birds.

Though the magistrate was observing the law to the letter, it was not practical to arraign someone who posed for a photograph holding a protected bird that was illegally shot by somebody else.

On Wednesday, Magistrate Aaron Bugeja upheld a request by the Federation for Hunting and Conservation (FKNK) for the police to take criminal action against the bird lovers who featured in a picture released to the media in October 2012.

The police had refused to take any action, arguing that the Birdlife members were highlighting illegal hunting and did not have the criminal intent to break the law.

However, FKNK president Joe Perici Calascione and general secretary Lino Farrugia filed a formal challenge to the Police Commissioner.

In upholding such challenge, the magistrate said the photograph did not give any indication on whether the six people seen holding the protected species were authorised to do so.

Lawyers who preferred not to be named acknowledged that the magistrate’s stand was legally correct but it “did not make sense”.

“The magistrate is right in the interpretation of the law and he reached his conclusion because he stuck to the letter of the law.

“But, in our field, you have to be practical and, in this light, the magistrate’s decision is illogical in my view,” one legal practitioner said.

In our field, you have to be practical – this is illogical

He said that, by analogy, drug squad police officers who seized drugs during a raid should be charged for illegal possession of substances when they handled them.

“The law is there to be observed but it’s nonsensical that we stretch it so much, almost beyond belief,” he said.

Another lawyer said that, by the same argument, all court employees or lawyers who handled exhibits in court, such as firearms or other weapons, could face the same fate.

“We are going to open a can of worms here. Although the crime of possession does not go into the element of intention to commit a crime, this is an absurd interpretation. It’s a question of logic rather than the law,” he said.

A police officer who served at the administrative law enforcement unit also disagreed with the magistrate’s ruling.

“What a waste of the little resources we have. We can’t waste our time on these people as we should employ it wisely to apprehend those who killed the birds. Don’t the Birdlife members qualify as whistleblowers anyway?” he asked.

FKNK: law is for all

Everyone must observe the law, not least the members of Birdlife Malta, the general secretary of the hunters’ federation said yesterday.

While welcoming the magistrate’s decision to uphold the federation’s challenge, Lino Farrugia said that the rationale behind the request was that the law must prevail: “No one is above the law.”

He quoted a 2006 legal notice laying down that no person shall hunt or attempt to hunt, take or attempt to take any bird which is protected, other than in accordance with regulations and with the conditions of any licence granted.

The same provision prohibits the handling, damage or removal of any bird nest and eggs as well as the handling of eggs in the wild of any bird which is protected, even if empty.

It also prohibits the “deliberate disturbance” of any protected bird during the period of breeding and rearing.

The same legal notice makes it unlawful to keep any bird, whether alive or dead, or part of any bird, the hunting or taking of which is banned by law.

Mr Farrugia said it was this law the FKNK wanted to be observed, adding that the police “have no choice but to proceed criminally”.

“Those found in possession of protected birds, whether alive or dead, were always prosecuted, so what’s the difference now?

“The law is what it is and everyone, including Birdlife Malta activists, must obey the law,” he insisted.

Asked to comment on the comparison to the handling of drugs by a police officer during a raid, Mr Farrugia said: “I am not familiar with the laws on drugs but I am with the ones on protected birds.”