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Decision AHC4806－2017

Summary:

(Original case in Spanish below; English translation attached as pdf). The Supreme Court of Justice rules in favor of the spectacled bear, ‘Chucho’, granting him the habeas corpus after the bear’s attorney challenged the lower court decision that denied it. Chucho is a 22 year old spectacled bear that was born and raised in semi-captivity. He lived for 18 years in a natural reserve in the city of Manizales with his sister. After his sister died, Chucho became depressed and started escaping. The environmental authorities thought that it would be in the best interest of the bear to relocate him, for which they decided to move him to a zoo in the northern of Colombia. Unfortunately, the living conditions of Chucho were diminished, as he went from living in semi-captivity to living into a smaller area. Attorney Luis Domingo Maldonado filed an habeas corpus in representation of the bear that was denied on first instance by the civil chamber of the Superior Tribunal of Manizales. Attorney Luis Domingo Maldonado argued that the current legal system did not have a specific proper mechanism that allowed the taking of immediate and urgent measures to protect the rights of animals as sentient beings to retire them for centers of captivity when they have spent their lives in natural reserves. He also used as examples the precedents from Brazil and Argentina where a chimpanzee and an orangutan were granted habeas corpus. Attorney Maldonado sought that the court order the immediate and permanent relocation of Chucho to the natural reserve ‘La Planada’, located in the Department of Narino. The Civil Chamber reversed the decision on first instance, and ordered the relocation of Chucho from the zoo in Barranquilla to a more appropriate location of semi-captivity conditions. In its reasoning, the magistrate judge stated that animals are entitled to rights as sentient beings, not as humans, and that the idea is to insert a morality of respect to counter a global ecological public order where the tendency of men is to destroy the habitat. After long considerations, the chamber stated that it is necessary to modify the concept of ‘subject of rights’ in relation with nature, understanding that who is subject of rights is not necessarily correlatively-bound to have duties. “The legal, ethical and political purpose is the unavoidable need to create a strong conscience to protect the vital environment for the survival of men, conservation of the environment and as a frontal fight against the irrationality in the man-nature relationship.”

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Sentencia T-622, 2016

Summary:

This is not a judicial decision that touches on animal welfare issues. However, it is important to mention as the Constitutional Court granted for the first time the status of legal person to a river. The Plaintiff, ‘Centro de Estudios para la Justicia Social “Tierra Digna”’ brought an action of ‘tutela’ (Constitutional mechanism that is preferential and summary created for the purpose of protection of fundamental rights) in representation of various community councils of the Atrato region in the Colombian Pacific against the Presidency of the Republic and others. The basin of the Atrato river covers and area of about 40,000 KM2 (15,444.086 sq mi) It is considered one of the highest water yields in the world. There are many ethnic communities that live in the adjoined municipalities that include Afro-Colombian communities, indigenous communities and mixed communities that obtain their sustenance from activities such as artisanal mining, agriculture, hunting and fishing by this river. The water of the river is also used for direct consumption. The Plaintiff alleged that the contamination of the river is a threat to the health of the communities that use the river as a source of work, recreation and to obtain food. The Plaintiffs sought that the court stop the large-scale and permanent use of illegal extraction methods of minerals such as gold and platinum. Additionally, logging that includes the use of heavy machinery and highly toxic substances such as mercury and cyanide as well as other toxic chemicals used in mining of the Atrato river. They argued that the illegal mining in the Atrato river was resulting in harmful and irreversible consequences on the environment, affecting the fundamental rights of ethnic communities that live in the area and the natural balance of the territory. For these reasons, the Plaintiffs asked the court to declare protection of the fundamental rights of the ethnic communities: life, health, water, food security, a healthy living environment, to culture and to the territory, by ordering the implementation of structural changes. The lower courts denied the action of ‘tutela’ in first and second instance, arguing that the Plaintiff sought the protection of collective rights, rather than fundamental rights. Therefore, this constitutional mechanism was not appropriate. After holding that the action of ‘tutela’ was the appropriate mechanism for the protection of the fundamental rights of the ethnic communities, the court established in its ruling that the right to water was a fundamental right, as it is a necessary component to the right to a dignified life, and it is essential for many organisms that inhabit the planet to be able to survive. The use of mercury and other toxic substances in mining activities is prohibited, regardless the legality of the activity. In a new approach, the court held that the Atrato river is subject to rights that imply its protection, conservation and maintenance and instructs the national government to be the guardian and to exercise the river’s legal representation through the president or whichever he appointed, along with the ethnic communities that inhabit the basin of the river. Thus, it guarantees the Atrato river is represented by a member of these communities and a delegate of the Colombian government.

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Sentencia T-095, 2016

Summary:

In this decision, the court drew a line between the concept of animal welfare and the concept of animal rights. The court continues to see animal protection from a moral perspective when it states animals do not necessarily have rights, even though they should be treated with respect and should not be abused. The Plaintiff brought an action of ‘tutela’ (Constitutional mechanism that is preferential and summary, created for the sole purpose of protection of fundamental rights) against ‘la Personería Local of Fontibón’, the local Mayor’s office of Fontibon, the District Secretary of Health, the Zoonosis Center and the Distril Secretary of the environment of Bogota. The Plaintiff argued that these governmental entities had violated his fundamental right to petition and the right to animal welfare of twenty five dogs, when the authorities ordered the confiscation the canines that were located in the District Ecological Park of the Wetland of Capellanía and who were cared for by volunteers. The Plaintiff argued that the Defendants did not respond to his request to provide funds to build a shelter and provide food and veterinary assistance of the dogs or funds to relocate them. The Plaintiff sought a response from governmental authorities on the petition and to provide the funds to save the animals, thereby avoiding the Zoonosis Center to assume their care, who would euthanize the sick animals that were not adopted after five days of being up for adoption. The lower court denied the protection of the fundamental right to petition, as it found that the authorities responded to the petition of the Plaintiff in a clear and timely matter by denying the request to fund the Plaintiff to relocate the dogs or build a shelter for them. In regards to the right to animal welfare, the lower court considered it was a legal rather than a constitutional issue, therefore the action of ‘tutela’ was not the appropriate mechanism as its purpose is to guarantee the protection of fundamental rights. The court held that there was a constitutional duty of animal protection that derives from the duty to protect the environment. However, this duty to guarantee the well-being of animals as sentient beings is not absolute and may be subject to exceptions. The court determines that the mandate to protect the environment, which includes sentient beings, does not translate into a right to animal welfare, and for that reason such duty is not enforceable through an action of tutela. The duty to protect animals presumes an obligation to care and prohibits maltreatment and cruelty against animals, unless these actions come from one of the limits stipulated in the constitution. The court affirmed the lower court decision to deny the protection to the right to petition and declared the inadmissibility of the action of tutela for the protection of animal welfare.

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Sentencia C-283, 2014

Summary:

This is an unconstitutionality claim against Articles 1º, 2º and 3º of Ley 1638, 2013 that prohibit the use of native and exotic wild animals in circuses. Plaintiffs argued that these Articles violated numerous provisions of the Constitution, including the right to work, right to choose a profession, rights to culture and recreation, and a violation to the freedom private initiative of the owners of the circuses. In decision C-283, the court held that Congress has the power to prohibit certain cultural manifestations that involve animal cruelty. The Court stated that “culture needs to be permanently reevaluated so it can adapt to human evolution, to guarantee of rights and the fulfillment of duties. Especially when the purpose is to eliminate the traces of a marginalized society that has excluded certain individuals and collectives.” The court also stated that the duty to protect animals is not absolute, as its application can be limited by values, principles and constitutional norms in specific cases that are contradictory to the principales. The judge must analyze each case under a reasonableness test, in a way that cultural manifestations can work harmoniously with the rights, principles, and duties established in the legal system. The Court held Article 1 of Ley 1638, 2013 constitutional, and refrains from deciding on the constitutionality of Articles 2 and 3, for lack of evidence to render a decision.

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Council of the State, Sentencia 22.592 of May 23, 2012

Summary:

Appeal, brought by the Plaintiff, who sought compensation for negligence on the part of the municipality of Anserma for the wrongful death of her husband, who died in the corrals of the slaughterhouse of Anserma when a bull charged him, causing him to fall and hit his head. The Plaintiff alleged that the slaughterhouse facilities were in poor condition, which was the cause of her husband’s death. If the facilities have been in good condition, he would not have had the accident. The court analyzed whether the damage was a result of the municipality's negligence as it did not maintained the facilities in a safe condition, or, if alternatively, it was an unfortunate accident not imputable to the Defendant. The court concluded that the Plaintiff did not present enough evidence to prove that the conditions of the facilities were the cause of the death of her husband. The court also found that the municipality was not in charge of the cattle in the slaughterhouse. Therefore, the damages were not imputable to the municipality. Furthermore, the court found the deceased was not an employee of the municipality, he was an independent employee that was hired by the slaughterhouse workers to assist them during the slaughter of cattle. The Court affirms the decision of the lower court and declares an exception of unconstitutionality of the expression “and if he alleges that he was not able to avoid the damage, he will not be heard.” of the Article 2354 of the Civil Code In its reasoning, the court determined that the accident was a result of contributory negligence and assumption of the risk on the part of the deceased, and not a result of the behavior of the animal. The court addressed Article 2354 of the Civil Code, that established that the caretaker of a fierce animal that does not report any benefit for the owner will be responsible for the damages the animal may cause, but if he alleges that if the damages were unavoidable, he will not be heard. The court declared unconstitutional the line “ and if he alleges that he was not able to avoid the damage, he will not be heard.” The court stated that it was inappropriate to address this scenario that involves responsibility derived from the behavior of animals under the parameters in the Civil Code that treated animals as goods. As today, it was of common acceptance that animals are sentient beings. Animals just as disabled people and other beings had dignity in themselves. They have a vital purpose, so much that they can enter a direct and permanent relationship with humans. The court continues to say that without this idea, the notion of legal capacity and the recognition of fundamental rights for legal persons could not exist. Animals should not be compared to objects or things, as they have dignity. The court recognized that animals and other living beings have their own value, and that even if it is acceptable that they are used for the human’s own benefit, it does not prevent us from recognizing that they are living beings, endowed with own value, and therefore subject to some rights.

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Sentencia C-889, 2012

Summary:

Decision C-889 grants constitutional value to animal protection. It establishes the parameters for tradition and social roots. It limits the scope of bullfighting in the national territory. On this opportunity, the court decided on the constitutionality of Arts. 14 and 15 of the statute of Bullfighting Statute. It establishes the criteria that must be met in order for bullfighting to be legal: (1) Bullfighting has to meet the legal conditions established for public shows in general; (2) Bullfighting must meet the legal conditions established in the statute that regulates the taurine activity, Ley 916 of 2014; and (3) Bullfighting must comply with the constitutional conditions, restrictions, and limitations established in decision C-666 of 2010 to satisfy the mandate of animal welfare, animal protection, and to avoid suffering and pain. It must also satisfy social ingrain, location, opportunity, the condition of no financial funds, and exceptionality.

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Sentencia C-439, 2011

Summary:

This is an unconstitutionality claim against Article 87 of Ley 769, 2002 (Trafic Code), relating the transportation of animals on vehicles of public transportation. Article 87 of Ley 769, established that only guide dogs could travel in this type of transportation when accompanying a blind person. The Plaintiff argued that this Article, which prohibited the transportation of animals on vehicles like buses and taxis, violated the right to equality, rights to personal and family privacy, right to free development of personality, freedom of locomotion, and private property. The court concluded that there was a violation to the right to free development of personality, freedom to locomotion, and to private property of the owners of domestic animals. The court added domestic animals as an exception to article 87, of Ley 769, meaning that this prohibition still remains for specimens of the wild fauna. Domestic animals now can travel on vehicles of public transportation, so long they are transported in conditions of health, safety, comfort and tranquility according to the applicable rules. The court also considered that a pertinent regulation was necessary to establish the requirements to transport animals on public vehicles.

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Sentencia T-608, 2011

Summary:

The Plaintiff brought an action of ‘tutela’ (Constitutional mechanism that is preferential and summary created for the purpose of protection of fundamental rights) acting as the legal guardian of her husband, who had spastic quadriplegia and mixed aphasia as a result of a severe cranioencephalic trauma, against Corporación Autónoma Regional de Caldas ‘CORPOCALDAS’. The Plaintiff argued that Corpocaldas had violated the rights to health and dignified life of her husband when the Defendant confiscated a parrot that was part of the Plaintiff’s rehabilitation treatment. The Plaintiff sought immediate restitution of the parrot by the Defendant. The court affirmed the decision of the lower court to deny the Plaintiff’s petition. The court determined that the confiscation of the parrot by Corpocaldas was reasonable and according to the law, therefore there was not a violation of the rights of the Plaintiff. The court stated that as wild animals belong to the nation and they can only be reduced to property when the are obtained through legal hunting or from legal breeders. In this particular case, the Plaintiff obtained the parrot as a present from her cousin, and she did not present evidence of title. The court concluded that the bird belonged to the nation, and therefore the environmental authority had acted in accordance to its duties. The court stated that even though there was a narrow relationship between the rights to health and life with the right to environment, the protection of the environment did not only aim to the protection of humans. The court indicated that the environment should be protected whether or not it offered a benefit to the human species. The rest of the beings that are part of the environment are dignified beings that are not at the absolute and unlimited disposition of the human beings. Humans are just another element of nature, and not a superior entity that has the environment at their disposition. Therefore, the use of natural resources should not cause damage or deterioration that could threaten diversity and environmental integrity, the court stated in its reasoning.

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Sentencia C-666, 2010

Summary:

The Constitutional Court decided on an unconstitutionality claim against Article 7 of the Statute of Animal Protection Ley 84 of 1989 that corresponds to the exceptions to the duty of animal protection. This decision established the conditions that must be met for the exceptions of Article 7 to apply. Put in different words, through Decision C-666, the court limits the scope of the legality of bullfighting, establishing certain requirements. In its holding, the Court stated that the seven practices in Article 7 would not violate the Constitution, so long as they were done within the following parameters: (1) As long as it is understood that these animals should, in all cases, obtain special protection against suffering and pain during the execution of these activities. This exception allows the continuation of cultural expressions and entertainment with animals, so long as exceptionally cruel acts against these animals are eliminated, or lessened in the future in a process of adaptation between cultural expressions and duties of protection to animals; (2) These practices can only take place in municipalities and districts in which the practices are themselves a manifestation of a regular, periodic and uninterrupted tradition, and therefore their execution responds to a certain regularity; (3) These practices can only take place during occasions in which they have commonly taken place and in the municipalities and districts where they are authorized; (4) These are the only practices that are authorized to be part of the exception in Article 7 to the constitutional duty to protect animals; and (5) Municipal authorities cannot economically support the construction of installations for the exclusive execution of the activities listed in Article 7 with public funds.

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Sentencia T-760, 2007

Summary:

The Plaintiff brought an action of ‘tutela’ (Constitutional mechanism that is preferential and summary created for the purpose of protection of fundamental rights) against Corporación Autónoma Regional de Caldas ‘CORPOCALDAS’, arguing that ‘CORPOCALDAS’ had violated the fundamental rights to health, personal integrity, life and human integrity of the Plaintiff’s wife, who became severely depressed when the Defendant confiscated an amazonian parrot she kept as her pet. The Plaintiff argued that the parrot was the only company the Plaintiff’s wife had for over five years, and that the confiscation of their parrot, was a violation of the Plaintiff's wife's fundamental rights. Furthermore, the Plaintiff argued that his wife was 65 years old, had raised the parrot that was never abused or neglected and who was allowed to move freely as her wings were never trimmed. The Plaintiff sought the the return of the parrot by the environmental authority ‘CORPOCALDAS’ to his wife, as well as the granting of the parrot’s title to her. The Court was able to find that the Plaintiff’s wife’s health was indeed diminished after the confiscation of the bird and the she had to undergo treatment as a result of it. However, the court found that the Plaintiffs were unable to provide evidence tending to prove that they had acquired the animal in a legal manner, as no permit, hunting license, or evidence that the parrot was obtained from a legal breeder were provided. The court determined that CORPOCALDAS did not overstep its responsibilities, as it is its duty to protect the wild fauna of the nation. Touching on the issue of whether the the fundamental rights of the plaintiff had been violated, the court concluded there was not such violation, as the environmental authority’s action was legal, reasonable, necessary and legitimate, and the Plaintiff did not obtained the parrot in accordance with the requirements legally established. In this case, the collective right to a healthy environment prevailed over the personal interest of the Plaintiff. The Constitutional Court affirmed the judgment of the ‘Juzgado Segundo Laboral del Circuito de Manizales’.

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