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THE REGULATION AND PROTECTION OF ANIMALS KEPT FOR COMPANIONSHIP : A CRITICAL ANALYSIS AND COMPARATIVE PERSPECTIVE (Chapter 3)

Lorraine Poole


Faculty of Laws, University of Malta
Publish Date:
May, 2007
Place of Publication: University of Malta
Printable Version

THE REGULATION AND PROTECTION OF ANIMALS KEPT FOR COMPANIONSHIP : A CRITICAL ANALYSIS AND COMPARATIVE PERSPECTIVE (Chapter 3)

CHAPTER III

CRUELTY TO ANIMALS AND CRIMINAL LIABILITY INCURRED THEREFOR

The ill-treatment of animals is as repugnant as it is widespread. One would expect better of nations that pride themselves on being civilized but an ugly truth belies the sophisticated exterior of the civilized state. The plight of animals ranges from a lack of care and attention to foul acts of what can only be described as pure malevolence. It has been said that what truly separates human beings from other mammals and animals in general is reason, yet this does nothing but bring shame upon us in the framework of animal protection for it highlights the fact that our species is able to consciously behave in deplorable ways, intentionally inflicting harm on other beings not for survival but for enjoyment.

A study of our Criminal Code reveals no provisions relating to animal welfare and hence no liability for ill-treatment and no sanctions therefor. Part III ‘Of Contraventions and Punishments’ of Book First of the Criminal Code does contain two references to animals but neither is relevant to the poor treatment of animals. The first is a contravention affecting public order consisting in the prohibition from driving an animal (of burden or a riding animal) over a drawbridge, with or without a vehicle, otherwise than at an amble[1]. Secondly, a person who sets his dog at another person, or does not endeavour to restrain the same, when molesting any person is guilty of a contravention against the person.[2] Clearly neither one of these is intended to dissuade a potential offender from committing acts of cruelty on an animal.

The discovery of these two provisions and the conspicuous absence of any other provision concerning the protection of animals is disconcerting for it means that the legislator has not felt the need to render animal abuse a crime within the sphere of the Criminal Code. On the other hand, this is not necessarily synonymous with an absolute lack of liability for abuse directed at companion animals.

There is also the legislative option of inserting the pertinent norms elsewhere in the already existing corpus of law or of enacting a special law in which animal cruelty constitutes a criminal offence by virtue of the punishment awarded, these being precisely the methods employed by our legislator first with the Code of Police Laws[3] and then the Animal Welfare Act[4].

The Code of Police Laws contained provisions specifically intended to protect animals from harm, positively revealing that our legislator has long had a sensibility for the well-being of animals. These provisions are sections 152 to 168 of Part VII called ‘Of Animals’ which remained in force until recently repealed by the Animal Welfare Act (henceforth referred to as the Act) in 2001. Though superseded, an overview of the contents of Part VII is indispensable to find out what the standard of protection was and more importantly to be able to compare it to that existing today, that is to see whether the Act is merely a case of old wine being poured into a new bottle or whether steps forward have been made in this area.

The term animal is defined in the opening section of Part VII of the Code of Police Laws. Accordingly, the norms to follow apply to domestic animals (said to include horses, asses, mules, bulls, sheep, pigs, goats, dogs, cats and fowl) as well as non domestic animals and any bird, fish or reptile which is in captivity or confinement[5]. For the purpose of this work, the subject of which is companion animals, this definition suffices because it includes practically all those animals which could be kept for companionship.

The Animal Welfare Act however improves on this, perhaps due to areas not previously legislated such as biotechnology and animal experimentation which required a broadening of the definition. Under the Act ‘animal’ means ‘all living members of the animal kingdom, other than human beings, and includes free-living larval and, or, reproducing larval forms, but does not include foetal or embryonic forms’[6].

As to how both laws provide for the ill-treatment of animals, there are clear differences and yet a similarity of approach is perceived.

To begin chronologically, section 153(1) of the Code of Police Laws declared that no person ‘shall ill-treat or use cruelty to any animal or subject any animal to manifestly excessive work, or, being the owner, permit any animal to be so used or ill-treated or subjected to manifestly excessive work.’ This imposed a negative obligation in the sense that it consisted in the obligation to refrain from such behaviour as would harm an animal.

The infringement of section 153 amounted to a criminal offence, albeit a contravention under section 318. Any court of criminal judicature was vested with the competence to award punishment pursuant thereto, with section 319 establishing that the punishment that could be imposed was ‘any of the punishments laid down in the Criminal Code for contraventions, either separately or cumulatively’[7].  

Under section 7 of the Criminal Code the punishments that may be awarded for contraventions are detention, a fine (ammenda) and reprimand or admonition. In any case detention is not to exceed a period of two months[8] and the amount of a fine (ammenda) is between three liri and twenty-five liri, being converted into detention at the rate of one day for every five liri or part thereof if the fine is not paid.[9] Should these be applied cumulatively this gives us a maximum of two months’ detention and a fine of twenty-five liri, which does seem rather trifling given the worst case scenarios of ill-treatment. It is probably for this reason that section 319(1) goes on to say that if the Court ‘is of the opinion that the offence deserves a heavier punishment’ it may award ‘a fine (multa) or imprisonment for a term not exceeding one month.’ This is interesting in that it effectively gave the Court the power to apply a punishment reserved for crimes and not contraventions. The term of imprisonment that would have been awarded in such instances was expressly stated to be up to one month, as required by section 8(2) of the Criminal Code. As for the imposition of a fine (multa), section 11 of the Criminal Code declares that where not otherwise specifically provided the minimum of a fine (multa) is ten liri and the maximum five hundred liri. This at least raises the amount of the fine, not to mention that non payment would be converted into imprisonment. Cruelty to animals therefore was a criminal offence under the Code of Police Laws.

The Act does contain a provision that is analogous to the abovementioned section 153 which lays down a general prohibition against cruelty and ill-treatment, its general nature serving to ensure that an act of cruelty not individually catered for in the subsequent sections would nevertheless constitute a criminal offence. This is section 8(1) according to which an animal ‘shall not be caused any unnecessary pain, suffering or distress’.

A person who does cause an animal any such unnecessary pain, suffering or distress commits a criminal offence in doing so. Section 45(1) establishes the penalty for the contravention of this provision and of any other contained within the Act. It states that ‘Any person who acts in violation of this Act or in breach of any regulations made thereunder, shall on conviction, be liable to a fine (multa) of not less than one hundred liri but not exceeding twenty thousand liri or to a term of imprisonment for a period not exceeding one year, or to both such fine and imprisonment.’

There are two obvious changes to the previous position which are of utmost importance. The first is the fact that the ill-treatment of a companion animal (as well as any other animal falling within the definition given by the Act) is no longer a contravention but has now become a crime, as is evident from the quality of the punishment. The second is the quantum of punishment awarded to the offender. The minimum fine payable now exceeds the maximum that was previously applicable and ill-treatment now carries a maximum imprisonment sentence of one year.

The legislator must certainly be commended for opting to revise the punishment. Rendering the offence a crime allowed for an increase in punishment, an increase which is justified in view of the nature of the offences concerned. Admittedly, the amount of punishment an offender was liable to under the Code of Police Laws was unlikely to have the power to discourage a potential offender.

Regrettably the legislator also saw it fit to introduce an administrative penalty under section 47 of the Act that may be imposed in place of the criminal punishment detailed above. Provided certain circumstances exist the Director of Veterinary Services has the discretion to decide whether the offender should be prosecuted or pay an administrative fine (which does not tarnish one’s criminal record) instead. This discretion comes into play where the Director has reasonable cause to believe that an offence against the Act has been committed and that it would be appropriate to impose an administrative penalty in view of the offender’s previous conduct, in which case he may do so.

This is done by means of a notice in writing which is served on the person concerned. The notice is to contain the date and nature of the offence, a summary of the facts on which the allegation is based, any matters the Director considers relevant and the amount of the penalty and the provisions of section 47. The alleged offender must reply within thirty days of being served and has two options open to him; he may reject the offer to pay the administrative fine in lieu of going to Court and require the alleged offence to be dealt with by the Court, or he may by means of notice in writing served on the Director admit the offence and pay the penalty, the amount of which will be set at a third of the maximum to which the offender would have been liable had he been convicted by the Court. Once the offence has been so admitted the offender is protected from being charged with that same offence.

In other words the offender benefits from a lesser punishment and no criminal prosecution if he is prepared to admit to the offence and thereby save the Court time, which is acceptable given its workload. Nevertheless the fact that the offender can avoid being held criminally responsible and likewise avoid receiving a potential sentence of imprisonment by paying a fine of an administrative nature is unsettling.

Apart from facing a fine and perhaps also a punishment restrictive of personal liberty upon conviction, both the old and the new legislation provide for the award of further penalties to be suffered by the defendant where the Court concludes that an animal was ill-treated by him.

The deprivation of ownership of the animal was laudably contemplated by section 163 of the Code of Police Laws. The imposition of this penalty was at the discretion of the Court which could, upon convicting the accused, in addition to any other punishment deprive such person of the said ownership. This is a most sensible thing to do because the circumstances may be such that the accused will commit the same or a worse offence against the animal which has caused him to be brought before the Court to be sentenced in the first place. If a person is patently unable to or unfit to care for an animal the best thing is for the animal to be removed to ensure its well-being and safety.

The proviso to section 163 makes it clear that this is an exceptional measure and that not all cases will necessarily warrant such drastic action. In fact the Court can only use its discretion to make an order under this section where it is shown ‘by evidence as to a previous conviction, or as to the character of the owner, or otherwise, that the animal, if left with the owner, is likely to be exposed to further cruelty.’ The primary concern of the Court must be the welfare of the animal.

The Act contains no such provision for the deprivation of ownership although section 45(2) does empower the Minister to make ‘regulations for the enforcement of any restriction or obligation relating to the protection of animals and animal welfare in general, contained in this Act or in any regulation made thereunder, including, inter alia, the forfeiture of animals and the forfeiture of any licence or permit issued under this Act.’ The forfeiture contemplated in the Act is equivalent to the removal of the animal from the sphere of ownership of the person convicted and hence to depriving him of ownership. The Code of Police Laws however is more explicit and the regulations which would supposedly serve this purpose under the Act do not seem to have materialised as yet.

Deprivation of ownership under the Code of Police Laws was applicable with regards to all animals. But where the animal subjected to cruelty was a dog the Code went one step further, allowing the Court to impede the offender from legally owning another canine. This possibility was linked to the obligation to obtain a licence for every dog owned by a person, as discussed in the first chapter of this work, and based on the assumption that the regulation in question would be enforced, which it never has been. In any case, section 165(1) of the Code of Police Laws authorized any court before which a person was convicted of an offence of cruelty to a dog to ‘order him to be disqualified from holding or obtaining a dog licence for such period as the court thinks fit.’

Had the said regulation been implemented this provision would have served the excellent purpose of preventing a person with a particularly hostile disposition where animals are concerned from owning another dog, thereby protecting an animal from being placed in a situation which could put its well-being or life in jeopardy.

Sadly, even if the Court chose to exercise the discretion enjoyed by it under this section of the Code there would be no way of monitoring the offender to make sure he did not subsequently purchase and keep another dog, after all he could simply not bother applying for a licence (on account of such application being turned down) and nobody would be any the wiser. So although a basis for protection existed its implementation could not be guaranteed. Moreover, a person convicted of cruelty to a dog would still be entitled to own an animal other than a dog, the problem being that a person who is capable of abusing a dog, a creature known for its loyal and dedicated nature, would undoubtedly be just as capable of committing acts of cruelty toward another animal.

Practical issues aside, one wonders why the Act has not likewise provided for the possibility of prohibiting a convicted abuser from keeping other dogs. Perhaps the legislator decided against its incorporation because it was well aware that the law governing the licencing of dogs is not given application and not enforced. But this deficiency should not have impeded the legislator from somehow including this option in the Act.

The Code of Police Laws represents a good effort by the legislator to protect animals from acts of cruelty. One thing it does not supply however is an exact definition of cruelty or ill-treatment. It does generally state that ‘an owner shall be deemed to have permitted such cruelty or ill-treatment or subjection to manifestly excessive work if he shall have failed to exercise reasonable care and supervision in respect of the protection of the animal therefrom.’[10] This implies that the owner of an animal must not only not harm his animal but must exercise equal care in protecting it from the harmful acts of others. But this is merely intended to establish that the owner is at fault and hence liable even where his animal is subjected to ill-treatment emanating from persons other than himself and he has in some manner not impeded the same or not cared enough to do so, and does not bring us any closer to an understanding of what cruelty is.

That being said, Part VII proceeds to lay down specific acts which would constitute an offence and which are deemed by the law to be acts of cruelty. Thus an indication of what would amount to cruelty is nevertheless given in an illustratory manner. These particular acts will be discussed shortly in conjunction with those acts of ill-treatment found in the new law.

Insofar as it is always desirable to have a legal definition to refer to, the legislator opportunely chose to fill this lacuna with the introduction of the Animal Welfare Act, section 2 of which provides that "ill-treatment", in relation to an animal, means causing the animal to suffer, by any act or omission, pain or distress which in its kind or degree, or in its object, or in circumstances in which it is inflicted, is excessive or unnecessary. Whereas the Code of Police Laws spoke mainly in terms of cruelty the Act has chosen to adopt the wider expression of ill-treatment. This was a wise choice because while cruelty implies the intentional and gratuitous infliction of extreme harm ill-treatment is a term that embraces a whole range of acts, including but not limited to cruelty.

I propose to proceed with an illustration of the different acts of commission and of omission which could amount to the ill-treatment of a companion animal both under the Act and under the repealed sections of the Code of Police Laws, these being the main two pieces of domestic legislation enacted thus far to render the perpetrator liable. Judgments delivered on the basis of these laws, if any, will hopefully shed light on the scope and the practical application of such norms, whereas comparing the provisions to those of other jurisdictions will provide an indication of where we stand in terms of animal protection and may offer workable models to follow should any insufficiency in our legislation transpire.

3.1       NEGLECT

Companion animals are generally brought up in a household as part of the family unit meaning they will not be able to fend for themselves within that environment.        The relationship of dependence thus created at minimum places a moral obligation on the owner to care for the animal and provide it with all that is necessary for the animal to have a serene life. Alas this is not always the case and many animals are neglected in many ways, perhaps with the owner not realizing or not caring that an act of omission can cause as much suffering as one of commission.

The Code of Police Laws was concerned with ensuring that animals were not neglected and laid down the bare minimum that must be made available to an animal. Section 154(1)(d) made it an offence for any person to fail to provide a domestic animal in his possession with a sufficient quantity of water and proper food. Section 154(1)(c) was even more stringent with regards to a particular domestic animal, the watch-dog, which had to have extra safeguards because in practice it was more likely to be kept outside the home or confined to a limited space. Keeping such a dog in the open constituted an offence unless it was provided with protection from the sun, rain and cold by means of a wooden or stone structure and unless given sufficient regular exercise, this of course apart from the general requirement to provide it with food and water. An owner who committed one of these offences was deemed to have used cruelty to animals[11] in contravention of section 153 and would consequently be liable to the punishment discussed above.

But the Code of Police Laws did not stop at domestic animals and section 155 extended the obligation to provide adequate food and sufficient water to any animal kept confined to a space. Incidentally, any person who shut up, or caused or suffered any animal to be shut up in any place was also required to take the necessary precautions to prevent the animal from giving annoyance, by howling or otherwise, to the neighbourhood. Of course an animal that is not treated well would be more likely to cause a commotion and so this provision indirectly encouraged persons to care for the animal adequately, even if just not to annoy the neighbours and incur liability under this section.

The emphasis was on guaranteeing the bare minimum required for the survival of the animal. But merely surviving is not the same as living and quality of life is important. This much is acknowledged by the Act, section 8(3) of which stipulates that ‘Any person who keeps any animal or who agrees to look after an animal shall be responsible for its health and welfare.’ The notions of health and welfare go beyond providing food and shelter and would include keeping the animal and its living quarters clean, administering medical treatment for any ailment that the animal may suffer from and catering for any specific needs occasioned by the particular species of animal. In essence this responsibility translates into a general duty to care for the animal properly. The United Kingdom first introduced this obligation in 2006 with the enactment of new Animal Welfare Act.

The Corte di Cassazione[12] recognized that to neglect an animal is to ill-treat it, saying that ill-treatment is not just the infliction of harm but is also the refusal to perform those acts which are necessary for the well-being of the animal.

3.2       SURGICAL MODIFICATION

The surgical modification of companion animals for aesthetic purposes was a well established practice in Malta and elsewhere for many years, the most common occurrence having been the cropping of ears and the docking of tails of pedigree puppies in order for them to conform to established physical standards peculiar to their breed.

Only recently have most countries begun to pass legislation prohibiting such mutilation following an increased awareness of the reality that animals were being subjected to unnecessary surgery which could furthermore give rise to medical complications for the animals concerned.

Section 154(1)(b) of the Code of Police Laws made it an offence for any person ‘except for good cause, the proof whereof shall lie on such person, to clip a dog’s ears or cause, procure or assist at the clipping of a dog’s ears’. Although forbidden under our law for quite some time under this law, the numerous dogs exhibiting cropped ears encountered over the years indicate that this provision was not high on the list of priorities for legislative enforcement.

Section 9(1) of the Act has undoubtedly surpassed its predecessor, stating that ‘Surgical operations for the purpose of modifying the appearance of an animal by which any part of the animal’s body is removed or damaged, other than for a curative purpose, shall be illegal.’

A number of improvements are evident. To start with, the Act does not limit itself to prohibiting the clipping of ears as was the case with the Code of Police Laws but encompasses the docking of tails and any other operation which has the object of changing the appearance of the animal for it speaks of any part of the animal’s body. Section 9 applies to all animals as opposed to just dogs as was the case previously. This widens the reach of the provision.

Also, under the Code of Police Laws proof brought by the defendant to show good cause was admissible, good cause being a rather vague term which left a lot of discretion to the Court and possibly allowed for an extensive range of justification. The only ground for exemption from liability given in the Act is where a procedure is carried out on curative grounds, that is where the medical condition of the animal requires it. Moreover, the Act specifically requires surgical operations to be ‘carried out by a veterinary surgeon or pursuant to a Minister’s order issued in consultation with the Veterinary Surgeons Council.’ Despite the use of the word or here one presumes that in the latter case surgery is also to be carried out by a veterinary surgeon.

Section 10 strengthens section 9 by restricting what can be done with an animal if surgery is carried out contrary to this law. Animals which have undergone a prohibited surgical operation can neither be entered for or admitted to shows or inspections or competitions, nor kept in stock, to be sold, offered for sale, sold or bought. This is a quite an assortment of activities, activities it must be noted which in themselves may be exactly why an owner may wish to submit an animal to the said operation. These practical consequences attaching to an infringement of section 9 therefore may render the carrying out of the actual procedure useless for the owner, possibly constituting an effective deterrent, provided persons believe the law will be enforced.

3.3       ORGANIZED FIGHTING

The organization of fighting competitions is a common occurrence in our country although perhaps some would really rather ignore it, after all we are good generous people and of course none of us would know a person who would be capable of compelling an animal to fight another for profit or enjoyment. Or so we say to ourselves and others, preferring not to know the truth, as though if we do not acknowledge it, it is not happening and we do not have to get our hands dirty to do something about it. But denial only makes it easier for people to commit such acts and the fact remains that this is an activity that does take place and furthermore it is a lucrative business for all involved.

The fighting of animals was prohibited under the Code of Police Laws. Section 154(1)(a) rendered it an offence ‘to cause, procure or assist at the fighting of any animal or to be in control of any place designed or adapted for use in connection with the fighting of any animal.’ This was a well drafted provision intended to impose criminal liability on a number of persons associated with the event in any significant manner, and rightly so because a person who provides a place for the fight to be held or is involved in the fighting of animals in any other manner is indubitably as responsible for the cruelty that such a fight amounts to as the owners who force their animals to fight.

The Act likewise forbids the fighting of animals and it does so in fewer words. Section 31 states that ‘Animal fights shall not be organized, and nor shall animals be entered for animal fights.’ Clear enough but one wonders whether conciseness comes at a price, and this for the following reason : the wording of the law indicates that liability will certainly be incurred by persons who are involved in the setting up of the fight as well as persons who put an animal into the same, but what of all those others who attend the fight? If the law were to impose liability on those present, who are willing to pay to watch the spectacle or bet on an animal winning or losing the fight, they may think twice before attending and this may result in fewer animal fights, although of course one cannot hope to eradicate them completely for there are some sick people who would still organize such fights for the simple enjoyment of the blood and violence. Yet persons attending an animal fight are not liable under the Act despite them being present for and indirectly participating in an illegal activity. Though this insufficiency also applied to the position obtaining under the Code of Police Laws the problem gains more importance with regards to the Act because of the general expectation that it would improve upon the provisions in the former.

In all fairness it may be excessive to insist that anybody present be burdened with liability. Unless one is duty bound to prevent a crime, so long as one does not participate in the commission of the offence, one cannot be held responsible for standing by while it takes place. Yet those who gamble on the outcome are, apart from encouraging and funding the organization of future fights, placing bets with persons who are not lawfully authorized to accept them.

The Italian Criminal Code contains a very comprehensive article on the fighting of animals and, as will be seen, does expressly address the liability of such persons.

Article 544 quinquies[13] prohibits the ‘combattimento tra animali’ and begins with ‘Chiunque promuove, organizza o dirige combattimenti o competizioni non autorizzate tra animali che possono metterne in pericolo l'integrità fisica è punito con la reclusione da 1 a 3 anni e con la multa da 50.000 a 160.000 euro.’

It is hard not to instantly notice that the punishment exceeds that laid down in our law. Under section 45(1) of our Act the offender is liable to a fine (multa) from one hundred liri to twenty thousand liri or to a term of imprisonment for a period not exceeding one year, or to both. Our maximum term of imprisonment and the maximum amount payable are equivalent to the minimum punishment that could be awarded under Italian law. Plus our Courts are free to decide to apply one or the other and not necessarily both whereas article 544 quinquies imposes both imprisonment and a fine. Our Act may have raised the bar when compared to the Code of Police Laws insofar as punishment is concerned but the new provisions in the Italian Criminal Code really do outshine our efforts.

And as if this were not good enough the Italian Code goes further by establishing aggravating circumstances which will increase the punishment by a third to a half. These are where the activity is committed in concursus with minors or armed persons, where the activity is promoted via video reproductions or material of any kind containing images or scenes of the combat or competition and lastly where the offender records the same in any form.

Article 544 quinquies extends the sphere of liability further, stating that a person who ‘fuori dei casi di concorso nel reato, allevando o addestrando animali li destina sotto qualsiasi forma e anche per il tramite di terzi alla loro partecipazione ai combattimenti di cui al primo comma è punito con la reclusione da tre mesi a due anni e con la multa da 5.000 a 30.000 euro.’ The same liability and punishment applies to the owner or holder of an animal used in a fight where he has consented thereto.

The last paragraph of article 544 quinquies brings us back to the point of persons present at the fight. Whomsoever organizes betting on or places a bet on a fight between animals, even if not present at the scene of the crime, is punished by imprisonment for a period of not less than three months but not exceeding two years and a fine of between five thousand and thirty thousand euros. Of course this applies where the offender was not directly involved in the fight, in which case the opening paragraph of this article would apply.

In the case of a conviction under article 544 quinquies the Court must always order the confiscation of the animal under article 544 sexies, unless the animal belongs to somebody extraneous to the offence. Section 154(3) of the Code of Police Laws also addressed this issue of the removal of the animal but dealt with it in a completely different manner. First off, where a person was convicted under section 154(1)(a) the Court could but was not obliged to take the animal away from the convicted person, secondly this provision spoke of making an order for the disposal of the animal to which the offence related and not its confiscation, the word disposal being very worrisome in that it implied that the animal could literally be disposed of as opposed to taken into care and possibly rehomed. Thirdly the Court was entitled to make such an order even though the animal or animals did not belong to the accused, which is diametrically opposed to the Italian position where confiscation is the norm, the exception being where the animal belongs to another who played no part in making the animal fight. The approach taken in the Code of Police Laws is undoubtedly inferior to that in the Italian Criminal Code. As for the Act, the Minister may make regulations under section 45(2) for the forfeiture of the animal. Again, the said regulations have not been made but at least the term used is not disposal, which bodes well.

And lastly, under article 544 sexies if the accused carries out activities of transport, commerce or the breeding of animals the Court shall suspend the exercise of such activities for a period of between three months and three years upon conviction, with interdiction being imposed in cases of recidivism. The risk of being deprived of one’s livelihood must surely provide a very good reason not to get involved in the fighting of animals.

3.4       ABANDONMENT

The abandonment of an animal is an act of ill-treatment and is prohibited under section 8(2) of the Act which plainly but clearly says that ‘no animal shall be abandoned.’ Doing so constitutes a crime and as with any violation of the provisions of the Act a person may incur the usual punishment of a fine (multa) of not less than one hundred liri but not exceeding twenty thousand liri or a term of imprisonment for a period not exceeding one year, or both. This is a good innovation as prior to the introduction of the Act abandoning an animal did not constitute an offence insofar as it was not regulated at law.

The new article 727 of the Italian Criminal Code also expressly provides for abandonment, stating that ‘Chiunque abbandona animali domestici o che abbiano acquisito abitudini della cattività è punito con l'arresto fino ad un anno o con l'ammenda da 1.000 a 10.000 euro.’

Whereas our law encompasses all animals the corresponding Italian provision only punishes the abandonment of domestic animals and animals that have acquired the habits of captivity[14]. The rationale for the choice of animal in the latter is the fact that such animals have become accustomed to being fed and cared for without having to fend for themselves so that in all probability they would not be able to survive outside of their ordinary surroundings. The Italian article was amended and introduced as a separate provision[15] at the end of July of 2004, increasing the fine previously applicable and establishing a term of imprisonment. The month it was introduced is significant because an increase in the phenomenon of the abandonment of animals regularly coincides with the time when Italian families go away for their summer holidays in August.

The Terza Sezione Penale della Corte di Cassazione[16] had the opportunity to assert its stand on abandonment back in 1999, holding that a person who abandons a dog is punishable at law. The Court said that if a dog has been thrown out of a car and proceeds to run after the car, this is proof that the driver is its owner. Proof of the ‘domesticita`’ of the dog is not required to indicate ownership, it is sufficient to ascertain that the animal was transported in the vehicle of the accused and that the animal attempted to chase it upon being pushed out of it.

Abandonment was also the issue in the American case of McDonald v State of Texas[17]. McDonald had been found guilty of cruelty to animals under section 42.09(a)(3) of the Texas Penal Code for driving to a remote area and attempting to leave a puppy there without food or care. Two security guards had witnessed him open the back doors of his van, pull out a black bag and drop it to the ground, whereupon a puppy came out of the bag. He was told to take the dog with him but McDonald refused, stating that the puppy was not his. Under the Texas Penal Code a person must have custody of the animal, a term which the Court said must be interpreted as ‘guarding or keeping, or taking immediate charge and control’ and it was reasonable for the jury to have found that McDonald had control of the puppy when he found it in the van and decided to leave it in an isolated area without food which in turn was an unreasonable act. The Court of Appeals held the sentence of fifty days in jail to be within the proper range of punishment and affirmed the judgment of the trial court.

3.5       OTHER ACTS OF CRUELTY DIRECTED AT ANIMALS

It seems the only limit to the abuse animals are subjected to is human imagination. Over the years news reports and other sources have informed the public of most dreadful episodes of cruelty that have taken place in our own backyard. The facts are not always easy to stomach but they must be.

A recent act of cruelty that was given a lot of media coverage was the hanging of three healthy adult tal-fenek dogs at a farm in Gozo. One of the dogs was expecting, the confused puppies of another were still beneath the body of their dead mother, unable to comprehend the situation. Gratuitous violence of this sort can find no justification and the perpetrator, who has not yet been apprehended, can only be a threat to society. The inability of the police force to identify the offender, be it for lack of man power or other resources, means that such acts often go unpunished.

Dogs and cats have been set fire to and burnt alive or have been thrown off cliffs, fighting dogs have been punished for losing a fight or simply being too old or frail to fight by being tied to two cars which are then driven in different directions and a particular dog in Siġġiewi had its nose sawn off a few years back. The commission of acts of unimaginable cruelty continue to hit the headlines. The only way forward would be for the Court to impose a harsh penalty if an offender is identified and convicted of a crime of cruelty so as to set an example and make it clear that such appalling behaviour is unacceptable.

In Il-Pulizija v Mikiel Vella[18], a judgment delivered long before the Act came about, the Court said that ‘hu xieraq, li l-attijiet ta` moħqrija ta` annimali jiġu denunzjati, u li l-Pulizija, meta l-provi jissostanzjaw id-denunzja, tipproċedi sabiex min għandu bżonn jiġi mrażżan, u b'hekk jiġi edukat fl-"animal welfare".’

The declaration of principles found in section 3 of the Act reflects this same sentiment. Section 3(1) declares that the ‘State shall endeavour, in accordance with the provisions of this Act, to protect the life of animals and to prevent and punish acts of ill-treatment in their regard.’

Under section 3(2) the State ‘recognises that it has the duty to promote the welfare of animals, and that the welfare of animals is to be protected through the intervention of the State through its legislative, judicial and administrative organs’. One must therefore see whether the State has been successful in its efforts to achieve such protection.

With regards to the legislative organs of the State it may be remarked that the Code of Police Laws did attempt to deal with the issues of animal welfare which were most relevant at the time. Our society however gradually became more informed about and hence more insistent upon the need to protect animals and this change was felt by the legislator who eventually succumbed to the demands that were being placed at its door. Although by no means ideal, the Code of Police Laws must be credited with laying the foundations for a system of animal welfare upon which the Act was built. The Act was intended to inaugurate a new age in animal welfare.

Clearly one of the most significant improvements to be found in the Act is the transformation of the quality and quantity of the punishment attaching to the commission of an act of ill-treatment. The fact that an offender is now liable to a fine (multa) of up to twenty thousand liri and can also be sentenced to imprisonment for up to a year is a great leap forward. And this achievement is not diminished in any way just because the legislative reform relating to animal welfare in Italy appears to have outdone us in this particular area. The focus ought to remain on the progress made. Of course, should the legislator eventually decide to raise the minimum or maximum punishment this would be perfectly fine and certainly no decent person would feel affronted by it.

Legislative measures of practical relevance to the protection of animals are the establishment of a Council for Animal Welfare[19] which is composed of persons representing different interests and is meant to act as an advisory body for the Minister, and the introduction of Animal Welfare Officers under section 44 who are responsible for the enforcement of the provisions of the Act under the direction of the Director of Veterinary Services. Section 44(1) gives the Minister the power to make regulations to provide for and regulate the duties and powers of these officials but seeing as no regulations have been made so far it is just as well section 2 tells us that every member of the police is an animal welfare officer, as are local wardens.

The legislative organ of the State has been moderately successful. But once legislative measures have been put in place it is up to the administrative organ to ensure the observance of the same and deliver an offender to the judicial organ to impose punishment for the infringement of those measures. Clearly all three organs are essential to a proper functioning of the system of animal protection.

The administrative organ has not always done a good job of apprehending offenders and bringing them before the Courts (resulting in a negligible quantity of jurisprudence) but ultimately the real deficit lies with the judicial organ which is not prepared to give full effect to the provisions of the Act and hand down sentences which are suitably proportional to the crimes for which the offenders have been convicted.



[For a full copy of the Animal Welfare Law and Dog Law see Table of Statutes]

[1] Criminal Code, section 338 (s)

[2] Criminal Code, section 339(1)(g)

[3] Chapter 10, Laws of Malta                              

[4] Chapter 439, Laws of Malta                                                            

[5] Code of Police Laws, section 152

[6] Animal Welfare Act, section 2

[7] Code of Police Laws, section 319

[8] Criminal Code, section 12

[9] Criminal Code, section 13

[10] Code of Police Laws, section 153(2)

[11] Code of Police Laws, section 154(2)

[12] Sentenza del 30 gennaio 1999

[13] Titolo IX bis inserted ex art. 1, 1. 20-07-2004

[14] This was also the position included in the old article 727 which was the general provision on the ill-treatment of animals

[15] Legge 20 luglio 2004, n. 189

[16] Sentenza n. 2376 (2 marzo 1999)

[17] 64 S.W.3d 86 Court of Appeals of Texas, 2001

[18] 10 - 10 - 1953 Court of Criminal Appeal (Inferior) per Justice Harding William

[19] Part II of the Act : Sections 4, 5 and 6

 

[Chapter 4]

 

 

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