But what happened exactly?
As in the cases studied two weeks ago, the Argentinian courts were confronted with animals rights groups trying to plead a writ of habeas corpus in the name of a primate held captive in a zoo. In this case her name was Sandra and she was (and still is) an orang-utan from Sumatra. A first tribunal rejected the action. Then the appeal court.
But, as it is the case in some civil law systems, the defendants were still left with the option to submit a pourvoi en cassation. The pourvoi en cassation is not exactly a third degree of appeal. The cour de cassasion usually does not have the power to review the whole case. Its competence is usually limited to the verification of crucial procedural guarantees. In Argentina, this Recurso de Casación only exists in criminal procedures and is undertaken by the Cámara Federal de Casación Penal. According to the Codigo procesal penal, the main ground for Casación is the “disregard or erroneous application of substantive law” (inobservancia o errónea aplicación de la ley sustantiva – read Capitulo IV of the Libro IV of the Argentinian Codigo procesal penal”).
And this is where it becomes interesting because, in what appears to be an exercise of its power to say what a proper interpretation of the substantive law is, the Cámara de Casación states the following :
“based on a dynamic rather than a static interpretation of the law, it is necessary to recognize the animal as a subject of rights, because non-human beings (animals) are entitled to rights, and therefore their protection is required by the corresponding jurisprudence (Zaffaroni, E. Raúl et al., Derecho Penal, Parte General, Buenos Aires: Ediar, 2002, p. 493; and La Pachamama y el humano, Buenos Aires: Colihue, 2011, p. 54 et passim). (Read the entire decision in Spanish or in English, thanks to the translation made by the Non-Human Rights project).
As soon as the decision was rendered, it was broadcasted and spread worldwide as a tremendous victory of the animal rights groups. And it certainly is because it was – to say the least – unexpected that one of the highest judicial authority of the country would accept this recurso de casación. And it is true that the decision does state that “it is necessary to recognize the animal as a subject of rights”.
That is for the good side of the case as far as animal protection is concerned. On the bad side are two elements. First, the fact that Sandra is not yet to be released because the recurso de casación is not a new decision on the merits. Its sole effect is to send the decision back to the previous court, which must take the decision of the cámara de casación into account. As to the extent to which the decision will influence the previous court… one shall see. Because even if the cámara de casación does state that animals “are a subject of rights”, it does not say which ones and certainly does not state that, in this particular case, Sandra has to be released. The second and most important downside is the lack of justification of the decision. To sustain such a ground-breaking decision, one would expect a sophisticated legal construction that would not only justify the decision but ascertain that the same logic is to be followed in the future. Nothing of the sort can be found when reading the decision.
The animals rights group can nevertheless be happy that the Court cites two books of Raúl Zaffaroni to justify its position. Raul Zaffaroni is an eminent Argentinian jurist and a well-known defender of the animal cause in Argentina. If the court really meant that it agreed with the reasoning of Zaffaroni, then it might be an even bigger victory than one thought. Reading the Pachamama y el Humano, cited by the Cámara de Casación, one can only be struck by how the elements Zaffaroni uses are close to the ones mobilized by animal rights groups worldwide: the fact that animals do not have standing does not change anything to their rights to have rights, the use of the similarity with the cases of slavery, etc… And it contains a more detailed explanation of the reason why animals are (present tense) entitled with rights:
“the legal good (bien jurídico) in the criminal offence of abusing an animal is nothing else than the right of this very animal not to be the object of human cruelty (p. 54., Read the whole book)”.
The text goes on and gives example of Argentinian law regarding the status of “victims” of the animals. For those understanding Spanish, the following video of Raúl Zaffaroni is quite enlightening as to the general argument he makes in his book. In any case, hearing one of the most prestigious lawyer of a country stating its position as follow, is certainly refreshing and deeply needed:
“It is not animalism, it is not environmentalism. It’s a change of axis. It’s sitting down and dialogue with the mountain, the river and the animals. It’s listening ”
Vincent Chapaux – February 2015