Disagreement over turtle dove numbers as court hears arguments on BirdLife spring hunting injunction

Lawyers from the office of the State Advocate have told a court that the 1,500 turtle doves which Maltese hunters would be allowed to kill if the spring hunting season goes ahead represent 'less than 1% of the global species'

Turtle Dove
Turtle Dove

Lawyers from the office of the State Advocate have told a court this morning that the 1,500 turtle doves which Maltese hunters would be allowed to kill if the spring hunting season is allowed to open represent “less than 1% of the global species” and “do not pose a problem”.

The State Advocate described BirdLife Malta’s last-minute request for a reference to the European Court as “an attempt to salvage the unsalvageable” as Madame justice Audrey Demicoli heard submissions on Birdlife’s request for a prohibitory injunction that would force the government not to open the spring hunting season for turtle dove this year.

The spring hunting season is slated to open on Sunday and close on 30 April. Hunters will be able to shoot at quail and turtle dove under a derogation applied by the Maltese government. The inclusion of turtle dove this year effectively ends a moratorium for hunting on the species that was introduced in 2017 after the European Commission threatened legal action.

The judge began today’s sitting by dismissing an application filed by the FKNK yesterday, in which it asked to be admitted as a party to the case. The request was denied.

Yesterday evening, BirdLife Malta had also filed an urgent request for the court to make a preliminary reference to the European Court of Justice, asking for guidance on the spring hunting issue. Usually, in such cases, proceedings in Malta are suspended until the ECJ makes a ruling.

Lawyer Mark Soler, appearing for BirdLife Malta, together with lawyer Claire Bonello, said the ECJ would have to take a decision on the application within 30 days. “If the injunction is denied today when we open a case on the merits, the actual situation will be lost already.”

Even if the court declared the relevant Maltese Legal Notice incompatible with EU legislation, the EU court’s declaration would be worthless if handed down after the hunting season.

“Let us ask the ECJ to give us a reasoned opinion on whether the Maltese civil code is hampering the rights of the plaintiff,” BirdLife's legal team argued.

Lawyer Anthony Borg from the Office of the State Advocate replied that this was not possible. “We are talking here about a case where nothing has been proven. No infringement proceedings have been filed against Malta over the transposition of the Birds Directive,” he said.

Borg also accused BirdLife of requesting the injunction and the request for a preliminary reference at the last minute to put pressure on the court to uphold a right that they hadn’t yet specified. “They are members of the ORNIS committee. They knew from 16 March that the season would be opened,” he added.

BirdLife’s lawyer retorted that the request didn’t concern a right but an obligation on the State. He explained that he could not know whether or not the government intended to open the season, pointing out that the government had not accepted several other recommendations by the ORNIS committee.

He said that prohibitory injunctions dealt with both local and European law, quoting case law. “This is a case of interpretation of the Birds Directive.”

The State Advocate's lawyer argued that there were other means available under Maltese law which could have been used to attack the interpretation. “They forget that there is a derogation. We are in a situation where the court hasn’t heard any evidence, and they are saying that prima facie there is a breach of EU law.”

The court informed the parties that it would be issuing a decree on the request for a preliminary reference from the chambers.

Wild Birds Regulation Unit head, Richard Lia, was called to take the stand.

He was asked whether Legal notice 116/22 was currently in force or would be in force in future.

“It was published on 8 April, so the intention is to open the season,” he replied, saying that hunting licences had started to be issued around 9 April.

The case then moved on to deal with the injunction proper.

Soler began his submissions by arguing that the best international scientists were saying that the turtle dove is a vulnerable species. The ECJ had previously ruled that when a bird species population is found not to be satisfactory, the derogation does not apply, he said. “The right is not absolute.”

The directive specified that derogations must be under judicial control, pointing out that this was not the case in Malta. “There must be a mechanism of control. We are invoking the directive directly.”

The lawyer told the court that his clients are requesting the preservation of the state of legality until a case on the merits was decided.

Lawyer Charlene Muscat from the Office of the State Advocate hit back, arguing that any injunction required an apparent right that needed protection and to prevent irreparable damage. It could not be used in cases of an obligation not to do something.

“We have a law which, in reality, is already in effect. This action should have been filed long before. Such an injunction can only be upheld over something which hasn’t already happened. It was confirmed today by the WBRU that what they are trying to prevent has already happened.”

“They are trying to mislead the court,” she said. “Hunters can only shoot species which overfly them. The relevant reference population lists 11 countries; it results that the 1,500 birds which can be hunted in spring amount to less than 1% of the global species.

“It is clear that the 1,500 turtle doves which can be hunted in Malta in spring do not pose a problem,” Muscat said, arguing that the applicants hadn’t demonstrated that they had a right that needed protection.

“What is the need if the 1,500 turtle doves are described as negligible by the EU?”

“Yesterday’s application [for a preliminary reference] was an attempt to salvage the unsalvagable,” Muscat said, asking what the “irremediable prejudice” BirdLife would suffer was if the injunction was rejected. “It is the government which will suffer as a warrant of prohibitory injunction can attack its laws. Any person would be able to paralyze the state.”

Mark Soler, in his reply, argued that the Birds Directive indeed imposed a prohibition, “an obligation not to kill turtle dove.” On the question of irremediable prejudice,  he said that the birds had not yet been killed, and if they were, this damage would be irremediable to the European bird population.

The local turtle dove population was also decreasing, adding that the obligation of member states was to ensure that the status of the bird is protected.

“We are also requesting that the defendants are prohibited from continuing to execute this legislation. As a fact, the season opens on 17 April. We are asking the court to stop the defendants from giving effect to the legal notice before 17 April."

Borg interrupted the lawyer’s submissions with laughter, necessitating the court to ask him to control himself.

In her closing arguments, Muscat told the court that the prohibitory injunction “must not be allowed to be used to threaten or as a tool for arm-twisting,” quoting case law.

Borg also added that the measure requested by the plaintiffs was “disproportionate” and would “create a dangerous precedent.”

Late in the sitting, a somewhat Kafkaesque argument erupted as to whether or not the species population was decreasing. Soler told the court that studies showed the population to be in decline. “Don’t mislead the court,” Muscat interrupted. “It is not decreasing. The reference population is increasing.”

After hearing the arguments and submissions by both sides, the court announced that it would be giving a decision from chambers.