Full Case Name:  Orangutana Sandra-Sentencia de Cámara- Sala I del Fuero Contencioso Administrativo y Tributario CABA

Share |
Country of Origin:  Argentina Court Name:  The Chamber of Appeals in Contentious Administrative and Tax Matters of the City of Buenos Aires Primary Citation:  Orangutana Sandra-Sentencia de Cámara- Sala I del Fuero Contencioso Administrativo y Tributario CABA Date of Decision:  Tuesday, June 14, 2016 Judge Name:  Mariana DIAZ Judges:  Mariana DIAZ Fabiana H. SCHAFRIK de NUÑEZ Fernando E. JUAN LIMA
Summary: Courtroom I of the Chamber of Appeals in Contentious Administrative and Tax Matters of the City of Buenos Aires ruled that the technical reports presented by the experts for the improvement of the orangutan Sandra’s living conditions showed enough evidence to conclude that it was not in the best interest of the orangutan to transfer her to a sanctuary or to transfer her to her natural habitat. Thus, the court accepted and ordered a series of measures in order to guarantee her welfare conditions.

The Chamber of Appeals in Contentious Administrative and Tax Matters of the City of Buenos Aires resolved the appeal against the judgment of the court in first instance that decided favorably on the constitutional action of ‘amparo’ on behalf of the orangutan Sandra against the government of the City of Buenos Aires and the “Jardin Zoologico de Buenos Aires”. On that occasion, the Plaintiff  argued that the defendants had violated the orangutan’s rights to ambulatory freedom, and requested the release and relocation of the animal to a sanctuary according to her species and particular needs. The judge ruled that Sandra was a non-human person, subject to rights and instructed amici curiae experts to present a binding technical report with the measures that had to be taken by the government of Buenos Aires relating to the orangutan’s wellbeing. The court ordered the government of Buenos Aires to guarantee the well being of the animal, including the adequate condition of her habitat and the necessary activities to guarantee the preservation of her cognitive abilities.

Plaintiffs and Defendant Government of Buenos Aires, filed appeal on the decision of October, 2015. Plaintiff argued that it was possible to decide in the prior instance what were the measures that had to be taken for the best interest of Sandra, based on the technical reports and records submitted by the experts. Plaintiff further explained that there were two options. One was for the court to order the relocation of the orangutan to “El Santuario de Grandes Primates” in Sorocaba, Brazil, or to alternatively keep her in the Buenos Aires Zoo under the condition of the improvement of her inner and outer enclosures to guarantee the best possible habitat conditions for her development and wellbeing. On the other hand, the government of Buenos Aires alleged the decision had various procedural defects. Defendant questioned the legitimacy of the actors and the suitability of the chosen procedural mechanism. It alleged the absence of case, cause or judicial controversy. In addition, he argued that animals are things that should be protected and that it was a duty of humans in relations with animals, for animals did not have rights. Defendant also argued that the judgment was an invalid act, because it was made relying on an opinion that experts will issue in the future. Finally, they questioned the court costs that were imposed on them.

The court denied the first grievance of the government of Buenos Aires and accredited the legitimacy of the Plaintiffs and the legitimacy of the case, as it considered AFADA brought action for the protection of a collective right “because the right to guarantee adequate living conditions of an orangutan living in the zoological garden of the City of Buenos Aires configures an indivisible collective good, which protection can be urged by any person”. The court rejected the Defendant’s assertion that there was absence of controversy based on Article 14 of the Buenos Aires Constitution that states that any citizen can invoke an action when there is a right of collective incidence referred to a collective good. The court stated that “appropriateness of the legal mechanism utilized was confirmed as the “accion de amparo” proceeds according to Article. 42 of the National Constitution and Article 14 of Buenos Aires Constitution against any clear and manifest act or omission of public authorities or individuals that, in a current or imminent manner, injures,restrict, alter or threaten with arbitrariness or manifest illegality, rights or guarantees recognized by the National Constitution, international treaties, the laws of the Nation, the constitution of the City, laws issued in consequence and interjurisdictional treaties in which the City is a party”. The court also found that there was not a remedial measure that was more appropriate in the legal system than this constitutional action was to guarantee the protection of Cecilia’s rights.

After summarizing all the technical reports submitted by the Plaintiff, which included reports submitted by the specialists Leif Cocks, Gary Shapiro and Shawn Thompson which indicated that orangutans, being an arboreal species need a three-dimensional space, and require privacy, socialization, possibilities of choice and stimulation. On April 8, 2015 Miguel Rivolta and Héctor Ferrari, presented a report with "Considerations on improvements in the situation of the orangutan Sandra making reference to the modifications that, in their opinion, had to be done in the enclosures where the animal lived. The court concluded that further investigation was needed regarding Sandra’s living conditions at the Buenos Aires Zoo”.

The experts stated that "the reintroduction of a hybrid individual in a natural environment with pure specimens of the same species was not encouraging and that it was difficult to achieve. Even when Sandra could overcome both traumatic episodes (transportation and introduction to a new habitat), it did not guarantee a solution, since the insertion in an environment did not necessarily improve the situation of the animal". The technical reports suggested that “Sandra could not be released directly into her natural habitat with wild orangutans, as she does not have the experience and training that orangutans would normally get in the wild to adapt to the living conditions. Furthermore, the experts pointed out that it was difficult for Sandra to socialize with individuals of her own species, and instead she had shown a strong bond with humans. For those reasons, the experts suggested the expansion of the area utilized as her habitat, joined with a plan that would include training, the establishment of welfare indicators, evaluation of her situation every two months and “explore the possibility of forming interspecific social structures under strict supervision, training her in communication routines with her caregivers, creation of  a daily activity chart along with a nutrition and observations plan, and the non-intrusive and regular measurement of stress”. They also suggested she needed special stimulation according to her species, possibility of privacy and socialization. Experts Ferrari and Rivolta suggested the modification of the internal, external and nighttime enclosures, to carry out activities of enrichment and training with the orangutan, train the caregivers and enrich her relationship with human beings.

The court partially granted an appeal of Plaintiff and Defendant “Government of Buenos Aires”, finding that it was not in the best interest of the orangutan Sandra to be relocated into a natural habitat with other orangutans according to the technical reports presented. Thus, Plaintiffs request to relocate Sandra into a sanctuary was denied. However, the court affirmed the decision in first instance that instructed the Defendant “Government of Buenos Aires” to guarantee the adequate  habitat conditions and necessary activities for the wellbeing and proper development of Sandra's cognitive abilities. In its decision the Chamber of Appeals instructed the Defendant to “maintain the enclosure of the orangutana in conditions adapted to her species; establish indicators of animal welfare, behavioral complexity and affective states; explore the possibility of forming social structures under supervision; plan daily activities, nutrition and periodic clinical observations; as well as non-intrusive and regular stress measurements."


Share |