Full Case Name:  Acción de hábeas corpus presentada por la Asociación de Funcionarios y Abogados por los Derechos de los Animales (AFADA)

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Country of Origin:  Argentina Court Name:  Tercer Juzgado de Garantías PODER JUDICIAL MENDOZA Primary Citation:  EXPTE. NRO. P-72.254/15 Date of Decision:  Thursday, November 3, 2016 Judge Name:  Dra. María Alejandra Mauricio Docket Num:  EXPTE. NRO. P-72.254/15
Summary: “Abogados y Funcionarios de defensa Animal” (AFADA) brought a writ of habeas corpus on behalf of Cecilia, a 30 year old chimpanzee that lived in the Mendoza Zoo alleging that the chimpanzee had been illegitimately and arbitrarily deprived of her right to ambulatory freedom and right to have a dignified life on the part of authorities of the Zoo of the City of Mendoza, Argentina. The court granted habeas corpus to Cecilia, ruling that Cecilia was a living being with rights and instructing defendants to immediately free her and to relocate her to the Great Ape Project Sanctuary in Brazil. Until this moment, only humans illegally detained had been granted this writ.

“Abogados y Funcionarios de defensa Animal” (AFADA) filed a writ of habeas corpus before the Third Court of Guarantees of the city of Mendoza on behalf of Cecilia, a 30 year-old chimpanzee. Cecilia lived by herself in the Mendoza Zoo in a small and filthy cement cage without any sunlight, trees, environmental enrichment, shelter or protection against extreme temperatures that could go from below 30 degrees in winter and reach above 100 in summer. AFADA sought the release of Cecilia, who they argued was illegally deprived of her freedom, and immediate transfer and relocation of her to the Chimpanzee Sanctuary of Sorocaba in Sao Paulo, Brazil. AFADA argued that Cecilia had been a prisoner and a slave for more than 30 years, due to the arbitrary decision of the authorities, and that this had affected at least two of her basic rights: her ambulatory and locomotive freedom and the right to a dignified life. Furthermore, AFADA alleged that the Mendoza Zoo had not ever done any improvements to improve the wellbeing of Cecilia, and that she had been enslaved with the only purpose of exhibiting her as an object. AFADA continued to state that Cecilia is an innocent non-human person who has not committed any crime and who has been condemned to live in confinement in an arbitrary and illegitimate manner without prior valid legal process provided by an authority public that is not judicial (zoo of Mendoza). Essentially, she is currently serving a prison sentence (the zoo is an establishment that does not guarantee minimally her conditions of "animal welfare") and that she never had the slightest possibility of being free and living that freedom, even if in her last days of life.

In its argument, the Plaintiff explained that the proximity of the chimpanzee species to the human species is so close that chimpanzees can donate blood to humans and vice versa. Cecilia is a sentient being that should be treated such as and not like an object. Chimpanzees are rational and emotional beings. They feel, live in social groups, and are gregarious animals that thrive in large, hierarchically-organized family groups. Besides having self-awareness, they have specific skills such as self-recognition and the capability to manufacture tools, and they even have the concept of "culture" with lessons that are passed on from parents to children. “A chimpanzee is not a pet and cannot be used as a mere object for experimentation or, like a guinea pig, for mere exhibition. They think, feel, suffer, learn and even teach others what they have learned.”

AFADA states that it is not the intent of the court for chimpanzees, gorillas, orangutans and bonobos are to be considered humans, but rather hominids, which they are. They argued that the living conditions of Cecilia at the time were a violation of her rights under the terms established in the arts. 43 of the National Constitution, Arts. 17, 19, 21 and cc of the Provincial Constitution of Mendoza, Art. 440 et seq of the Criminal Procedure Code of Mendoza, the provisions of Ley N° 23,098, Ley 14, 346, Ley 22,421, and other laws and International treaties with constitutional hierarchy.

The State Prosecutor of the Province of Mendoza filed a motion to dismiss for failure to state a claim on the part of the Plaintiff, alleging that the action lacked of the element of existence of a human person, as animals are considered "things" under the legal system. The State Prosecutor alleged that there is no illegal detention, as the right to ambulatory freedom is a personal right that only human persons have. That there is not illegal act, as the Zoo was created through Ley No. 30, 1897 for the holding of different animal species, which would remain in cages specially made for each species for the safety of people and things. The prosecutor also argued that AFADA lacked legal standing, legal capacity and procedural legitimation. Finally, the State Prosecutor proposed for Cecilia to be transfer to the Bulbaco after hearing of September 2, 2015.

In judicial hearing, the parties agreed that it was in the best interest of Cecilia to be transferred to the sanctuary located in Brazil. The Defendants asked for a three to six month deadline. The tribunal granted them six months to carry out the necessary procedures for Cecilia’s transfer to Sorocaba, Brazil.

The court denied the motion to dismiss and other defenses of the Defendant, granted the writ of habeas corpus, and declared Cecilia a non-human person. The transfer of Cecilia to the sanctuary of Sorocaba, Brazil was ordered, and the Mendoza Zoo was given a deadline of six months to carry out all the procedures for the relocation, according to what the parties had agreed.

In its reasoning, the judge cites Article 1 of Ley 22, 421, which establishes that the protection and conservation of wild fauna is of public interest, and that all the citizens have the duty to protect it. This validated the procedural initiatives that aim to enforce such protection.

The right to the environment is a collective right under Article 41 of the constitution and Cecilia and her wellbeing are part of the environment since she is part of the wild fauna of the country defined and protected by Ley 22,421. Under this law, the authorities are also obligated to watch over the protection and conservation of the natural patrimony. The court then proceeded to cite judicial precedent that ratified the legal status of the environment as a collective right. It affirmed the duty to protect it and how the lack of concern for the environment would negatively affect the quality of life of humans and their culture. In regards to this point, the court concluded that Cecilia was part of the national patrimony under Ley 22,421. She was also part of the cultural patrimony to the extent of her relationship with the community and, for these two reasons, her wellbeing concerns the collective patrimony. The court continues saying that transferring Cecilia to a better location outside of Argentina would not contradict the protection of the natural patrimony, cultural patrimony, and quality of life of the citizens. It has been proven that the community is not able to provide the necessary means to guarantee the wellbeing of Cecilia and her relocation is “the best option for this Chimpanzee that is currently part of the natural and cultural patrimony to acquire better living conditions." Regarding to the quality of life of the citizens, “if the community is well informed and educated regarding the measures now taken, it will be satisfied when it finds that collectively acting as a society, Cecilia was given the opportunity to live the life that she deserves." Further, the court added, “If we protect her wellbeing, it will not be Cecilia who will be in debt to us, but rather us who should thank her for allowing us to grow as a community and feel a little more humans."

On the AFADA’s assertion that Cecilia was arbitrarily and illegally detained in the Mendoza Zoo, the judge disagreed since there was no order from the competent authority that provides that detention. The judge explained that the authorities from over a century ago provided the creation of the zoo for the incorporation of different animal species. However, societies evolve in their moral conducts, thoughts, values, and also legislation. Individual rights now recognized by constitution of various countries and international treaties regarding human rights were ignored back then. Examples of these issues include gender violence, marriage, equality, the equal right of suffrage, etc. The same is happening with the awareness of animal rights. The legal act taken to carried out by the authorities of 1897 in the creation of the provincial zoo cannot be considered illegitimate as that act, as well as the incarceration of Chimpanzee Cecilia, were carried out within the framework of current legislation at that time and with the criteria of the time regarding the exhibition of animals of different species. Nevertheless, to determine if the writ of habeas corpus proceeded in this case, the court had to determine whether Cecilia was a non-human person subject to rights. The court proceeded to analyze the treatment that current laws gave to animals.

The civil and commercial code maintained the classification of animals as movable things in Article 227. However, Article 240 established that “the exercise of individual rights on the goods mentioned in sections 1 and 2 must be compatible with the rights of collective incidence. It must comply with the rules of national and local administrative law issued in the public interest and should not affect the operation or sustainability of the ecosystems of flora, fauna, biodiversity, water, cultural values, landscape, among others, according to the criteria provided for in the special law." This implies the exercise of individual rights must take into account the protection of the rights of the collective, which guarantee a dignified life and a sustainable future. The judge considered that classification of animals as mere assets was not appropriate:

The intrinsic nature of things is to be an inanimate object by contrast to a living being. Civil legislation sub-classifies animals as movable things, giving them the "only" and "outstanding" characteristic that these "things” move by themselves. However, nobody would deny that animals are sentient beings that comprehend basic emotions." “Experts in the field unanimously agree on the genetic proximity that chimpanzees have with humans. They also add that they have the capacity to reason, they are intelligent, have self-awareness, diversity of cultures, expressions of games mental illnesses and bereavement demonstrations. They use and manufacture tools to access food or solve simple problems of daily life, have capacity for abstraction and ability to handle symbols in communication. They have awareness to express emotions such as joy, frustration, desire or deception, planned organization for intra-specific battles and hunting ambush and possess metacognitive skills. They also possess moral, psychic and physical status, have feelings of affection (they care for and groom themselves). They are able to deceive, use symbols for human language and use tools.

For those reasons, the court stated that, "[i]t is undeniable that great apes, including chimpanzees, are sentient beings, and therefore, they are non-human persons subject to rights," and are not mere objects. The court stated:

Great apes are subjects of rights and are holders of those that are inherent in the status of sentient beings, and even though such assertion seems to be opposed to the guidelines of the current law, it is just in appearance. Such appearance is externalized in some doctrinal sectors that are not aware of the clear inconsistency of the legal system, which maintains that animals are things, and at the same time protect them against animal abuse, legislating to protect them against mistreatment. To legislate on animal abuse implies the strong presumption that animals "feel" that mistreatment and that that suffering must be avoided, and if it occurs, it must be punished by the criminal law.

In addition, in Argentina, animal mistreatment is regulated by Ley 14.346. This law protects the right of the animals to not become objects of maltreatment. This law implies that animals are not things, but rather sentient living beings. Therefore, the judge concludes that animals are subject to rights that must not be violated.

Ethical and moral construction as well as dignity are in constant evolution. The recognition of humans as socialized individuals with a learning aptitude have helped them to understand that nature must be protected and animals must not be abused.

With this decision the court does not pretend to put sentient beings “animals” on the same level as human beings. Neither does it seek to give the category of persons to all existing animals, flora and fauna, but rather to recognize and confirm that primates are persons, subjects to non-human rights and that they have a catalog of fundamental rights that should be object of study by the corresponding state bodies, a task that exceeds the jurisdictional scope.

It is not a question of granting animals the rights that human beings possess, but rather to accept and understand that animals are living sentient beings, which are subject of rights: among others, the fundamental right to be born, to live, to grow, and to die in an environment that is appropriate according to their species.

The rejection of the idea to grant animals the status of non human persons with the argument that animals are not capable of exercising their rights can be refuted as legal incapacity. This idea of legal incapacity does not exclude those persons that lack certain capacity from exercising their rights. The rights of incompetent persons are exercised by their legal representatives. In the case of animals, NGOs, governmental organizations or any other person could exercise such rights in the name of the animals invoking diffuse and/or collective interests.

For the specific case of the chimpanzee Cecilia, the tribunal executed a surprise inspection to the zoo to corroborate the conditions the chimpanzee was living under. The tribunal corroborated that Cecilia was in a corner of a small cage which was the only corner where she could get some sunlight. She had a few toys to keep her entertained and her water container was empty. The court considered the question: is a cage, even one of large dimensions, an adequate place for a chimpanzee? The tribunal responded. “What is adequate and right is that humans stop animal captivity with the purpose of exhibiting them for human entertainment. Animals are non-human subjects of rights and as such they possess the inalienable right to live in their habitat, to be born in freedom and to keep it."

After giving an extensive analysis of the meaning of habeas corpus, the court concluded that there was not a judicial path to evaluate the situation of animals living in zoos or in situation of confinement against their basic necessities and their natural habitat. The court decided that the writ of habeas corpus was the most ideal legal action for the specific situation of an animal deprived of its basic rights. Therefore, the writ of habeas corpus was admitted in order to protect Cecilia’s right to live in an environment and in conditions adequate to her species. The court decided for the Plaintiff with the purpose of guaranteeing the right of Cecilia to live in an environment and under conditions adequate to her species. For that, the court order the relocation of Cecilia to the sanctuary of Sorocaba, in Brazil.

The court also requested the legislative power to provide the authorities with legal tools to stop the inappropriate confinement conditions of animals living in the zoo of Mendoza, such as the African elephant, Asian elephants, lions, tigers, bears, and of all those exotic species that do not belong to the geographic and climatic conditions of Mendoza.


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