New creativity in the Argentinian case

In a short post KStenner_Samboja_048 2008 (800x533)before spring break, I’d like to inform you of the latest developments in the Argentinian case I commented on last month. As you might remember, the Argentinian case concerned an orang-utan named Sandra held captive in an Argentinian zoo. An Argentinian organisation was fighting for her release and brought the case before various tribunals, all of which rejected it.

Last December, the Argentinian Cámara Federal de Casación Penal stated that the decisions rendered by these lower courts were inadequate because they stated that animals did not have rights while, according to the Cámara Federal : “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 » (Read the entire decision in Spanish or in English, thanks to the translation made by the Non-Human Rights project).

Last week, Página 12 reported that a new case had been open by the same association to reach the same goal: the liberation of Sandra. According to the newspaper, this new case was presented 2 weeks ago against the Government of the Autonomous city of Buenos Aires for:

“violating in a manifest and illegal manner the freedom of movement and the right to not suffer any physical or psychological harm to which, as a non-human person and subject of rights, Sandra, who is held captive in the Zoological Garden of the Autonomous City, is entitled” (Read the entire news report (Spanish)).

The argument of the organization clearly rest o the decision of the Cámara Federal de Casación Penal of last December.

The form of this case is a bit different from the previous one. In this case, it is the constitutionality of the administrative acts of the city that seems to be questioned, as this is an acción de amparo. The acción de amparo is provided for in section 43 of the Argentinian Constitution. Interestingly, this action can be filed not only by the damaged party but by associations defending them:

“Any person shall file a prompt and summary proceeding regarding constitutional guarantees, provided there is no other legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality. In such case, the judge may declare that the act or omission is based on an unconstitutional rule. This summary proceeding against any form of discrimination and about rights protecting the environment, competition, users and consumers, as well as about rights of general public interest, shall be filed by the damaged party, the ombudsman and the associations which foster such ends registered according to a law determining their requirements and organization forms. (…) When the right damaged, limited, modified, or threatened affects physical liberty, or in case of an illegitimate worsening of procedures or conditions of detention, or of forced missing of persons, the action of habeas corpus shall be filed by the party concerned or by any other person on his behalf, and the judge shall immediately make a decision even under state of siege”. (Art. 43 of the Argentinian Constitution).

The creativity I mentioned in the title does not stem only from the type of action chosen by the organizations but by the way the hearings have been conducted. Página 12 reports that the judge did not only hear the legal representatives of both parties. She also decided to hear two kind of amicus curiae. The first one is rather traditional: a group of academic experts (in this case experts from Faculties of Veterinary Medicine).

The second actor is less expected. The judge indeed invited the Asesoria General Tutelar of the city, an organ which is usually in charge of defending children, adolescents and person with mental disabilities. This is a very creative initiative.  In inviting an organ which is usually in charge of defending children, adolescents and persons with mental disabilities, the Argentinian judge de facto assimilated the animals with other weak members of the community and blurred the lines between human and non-human animals.

The Argentinian case proves to be every day more fascinating. Let’s wait for the actual decision to see if these apparent evolutions towards a better protection of the animals are confirmed (or not).

Vincent Chapaux – April 2015

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