Angie Vega (2023)
Ecuador is located in the northwestern corner of the South American continent. It is a megadiverse country, with around 23.056 animal and plant species reported, constituting 6,1% of all species reported worldwide. UNESCO has declared several cities, parks, and sites as World Heritage. These sites include Quito and Cuenca, the Galapagos Islands, and the Cotopaxi volcano. Ecuador is a biological powerhouse with many landscapes, from the high and cold Andes and the humid Amazon rainforests to the Pacific mangroves and the Galapagos Islands.
Ecuador is organized in the form of a republic with a representative democracy. It is divided into 24 provinces, each further split into administrative cantons and “parroquias.” It is a unitary state, and the three branches of government are divided into the executive, legislative, and judicial. The President of the country oversees the executive branch and represents the country. The Legislative branch makes the laws. It comprises the National Assembly, which replaced the bicameral Congress in 2008. The national assembly has 137 members that are divided into 12 permanent commissions. Finally, the Judicial branch administers justice. Art 178 of the Constitution establishes the jurisdictional bodies in charge of administering justice:
The Constitutional Court is the highest court in Ecuador. It interprets the Constitution and administers justice in this field. It has national jurisdiction and administrative and financial autonomy (Art 429).
According to law, the National Court of Justice has jurisdiction over the country’s territory and acts as a Court of Cassation through specialized chambers. In addition, this court has as one of its primary purposes the development of a judicial precedent system based on triple reiteration rulings. (Arts 182-185).
The Provincial Courts have jurisdiction over the territory of each province.
Tribunals and judges appointed by law, whose independence is guaranteed by the state and can only be subject to the Constitution and the law.
The Justice of the Peace, who settle matters within their districts based on equity and may not necessarily be a legal practitioner.
The National Council of the Judiciary selects judges and other public servants of the judicial branch. It also evaluates and sanctions them, if necessary.
Ecuador is based on a civil law system. This means the legal system relies mainly on written laws, such as codes, rather than judicial precedent. Court decisions are binding to the parties only. Art 425 of the Constitution establishes the hierarchy of the legal norms as follows:
- The Constitution;
- International treaties and conventions;
- Organic laws;
- Ordinary laws;
- Regional standards and district ordinances;
- Decrees and regulations;
- The ordinances;
- Agreements and resolutions; and
- Other acts and decisions of the public authorities.
However, high courts, such as the Constitutional Court and the National Court of Justice, have the power to establish judicial precedent, meaning that not just the high courts themselves but also inferior courts have to apply their decisions. The Constitutional Court has found that based on Art 76.7, judicial precedent, in the strict sense, is a source of law within the judicial system. The Court has also held that legal precedent can be vertical (the decision of a court with a higher hierarchy) or horizontal (decisions of a different court in the same level of the hierarchy that is not binding but persuasive) (Constitutional Jurisprudence Guide Constitutional Court, Ecuador 2022).
When it comes to animal protection, Ecuador has a unique development. The country has a reasonably new constitution that was enacted in 2008. It is distinctly more progressive than other constitutions in the region. More specifically, it establishes in Article 71 that "Nature or Pacha Mama, where life is produced and carried out, has the right to full respect for its existence and the maintenance and regeneration of its vital cycles, structure, functions, and evolutionary processes." This means that nature is generally subject to rights under the Constitution. At the same time, Art 281, numeral 7, establishes that the government has the duty to ensure that animals destined for human consumption are healthy and reared in a healthy environment. Ecuador is the only country that incorporates the rights of nature in the Constitution.
The development of the legal framework under which animals are protected has started to evolve more rapidly in recent years. Another unique aspect is that the country does not have a national anti-cruelty law, and before 2019 cruel acts against animals were punished with fines. Besides the 2009 regulation of ownership and management of dogs, animal protection stems from general codes such as the criminal, environment, and sanitary codes. Today, under the criminal code, cruelty against animals is punished with up to 3 years of imprisonment. In addition, the environmental code prohibits sport hunting, except in cases where it is practiced for community feeding purposes. It is important to mention that many cities in the country, including Quito and Guayaquil, have their own local ordinances that establish their own penalties for animal cruelty. They all have a different scope and cover different animal species.
Regarding judicial development, even though they do not expressly incorporate animal rights in this text or even mention animal protection at all, in a groundbreaking case in 2022, the Constitutional Court recognized animals as subjects of rights as they are part of nature. It is the case of "Estrellita," the woolly monkey seized by the environmental authorities and taken to a zoo. She died at the zoo after being separated from her human family of 18 years. The Court held that animals are sentient beings subjects of rights and that they are subjects of protection through the rights of nature. Further, the court stated that under the right circumstances, they can be protected through legal guarantees established in the constitution, such as Habeas Corpus. "the recognition of animals as subjects of rights constitutes the most recent phase in the development of their legal protection, which is based on the recognition of animals as living beings with an intrinsic value that makes them holders of rights." In its decision, the Court instructed the environmental ministry to draft protocols and guidelines for authorities to follow during operations involving companion animals, where they have to take into account the animal's particular circumstances to avoid repeating Estrellita’s outcome in the future. In addition, it directed the Ombudsman to draft a bill concerning animal rights that collected the rights and principles developed in the decision. The Court gave the Ombudsman a deadline of 6 months to present the bill and two years to the National Assembly to debate and pass the bill as a law.
The "Animal Protection Bill" (known as LOBA) has been presented to the National Assembly but has yet to become law. Even though nature has been granted rights by the constitution and the landmark case of Estrellita, where the Court holds that all animals are subjects of rights, no meaningful legislation, judicial decisions, or regulations addressing animal protection of different species exist. In other contexts, such as farm animals, animals used for entertainment, scientific research, animal-drawn vehicles, etc., there is, however, a law on the responsible possession of companion animals enacted in 2009. The Civil Code still categorizes animals as chattel, and there are no meaningful enforcement mechanisms. The current legal framework does not provide an adequate infrastructure to ensure that the constitutional mandate to protect nature and animals is carried out effectively. There are currently three bills addressing animal rights or animal welfare. Animals will soon have a legal framework in this country. The scope of the future of law addressing animal rights and animal welfare will depend on what bill becomes law.
II. Animals in the Constitution
The current Constitution was enacted in 2008. It is a progressive constitution that recognizes, among other things, the rights and protections of indigenous people and the rights of nature. This last one sets the country apart from the other countries in the region because it has a provision that explicitly grants rights to nature in its constitutional text. In addition, the rights of nature have been successfully used to argue in favor of the rights of animals as they are part of nature (See Estrellita's case).
The preamble of Ecuador's Constitution states - "We women and men, the sovereign people of Ecuador RECOGNIZING our age-old roots, wrought by women and men from various peoples, CELEBRATING nature, the Pacha Mama (Mother Earth), of which we are a part and which is vital to our existence, INVOKING the name of God and recognizing our diverse forms of religion and spirituality, CALLING UPON the wisdom of all the cultures that enrich us as a society, AS HEIRS to social liberation struggles against all forms of domination and colonialism AND with a profound commitment to the present and the future"…
More specifically, Art. 10 states that nature bears those rights recognized by the Constitution. Article 71 establishes that nature, "where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution." It further states, "All persons, communities, peoples, and nations can call upon public authorities to enforce the rights of nature. The principles outlined in the Constitution shall be observed as appropriate to enforce and interpret these rights. Furthermore, the State shall encourage natural persons, legal entities, and communities to protect nature and promote respect for all ecosystem elements." In other words, according to this article, any citizen is entitled to enforce the rights of nature. Art. 14 establishes "the right of the citizens to live in a healthy and ecologically balanced environment, which guarantees sustainability and good living, or “Sumak Kawsay.” The preservation of the environment, the conservation of ecosystems, biodiversity, and the integrity of the genetic patrimony of the country. The prevention of environmental damage and the recovery of degraded natural spaces." Good living, or “Sumak Kawsay” Andean indigenous principle, stems not just from the idea of Communitarianism as a socioeconomic and political system based on reciprocity, solidarity, equality, and self-management but also from the principle of living in harmony with nature. (document in Spanish ¿Cuál es la relación entre Sumak Kawsay y comunidad?, Ecuador en Cifras). As such, nature should be protected as a living entity composed of dynamic systems, living and non-living elements that depend on one another. The idea is that the existence of nature and the planet depend upon the existence and health of these systems and components. Therefore, it should be highly valued, not just by humans as individuals but also by the legal system.
Article 72 states that "nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems. In those cases of severe or permanent environmental impact, including those caused by the exploitation of nonrenewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration. It shall adopt adequate measures to eliminate or mitigate harmful environmental consequences."
Other articles concerning nature include Arts 73 83.6, 276.4, 277.1, 283, 317, 318, 395, 396, 399, 403, and 415.
III. Animals in the Civil Code
Even though the constitution has indirectly granted animals rights as they are part of nature, they continue to be categorized as movable objects by the civil code. However, the most recent reform to the civil code is from 2005, meaning the current civil code still needs to be updated to comply with the 2008 constitution and subsequent constitutional court decisions.
Article 585 defines movable objects as those that can be transported from one place to another, either by their force, like animals (which is why they are called “semovientes”), or by an external force, like inanimate things.
Article 639 states that “domestic animals are subject to domain” (or complete ownership).
It is important to note that the bill for animal welfare is currently in the hands of the National Assembly. Changing the categorization of animals in the civil code to “sentient beings” is one of the many topics regulated by this bill.
IV. Animals in the Criminal Code or Código Orgánico Integral Penal (COIP)
In Ecuador, animal cruelty was not considered a crime until 2019. Before the 2019 reform to the Criminal Code, animal cruelty resulting in the death of a companion animal was punished only with fines and a maximum of seven days of imprisonment, this crime did not apply to animals beyond those considered "pets." The 2019 reform "Ley Orgánica Reformatoria al Código Orgánico Integral Penal" includes changes to crimes involving animal cruelty and increases their punishment, effectively modifying the text in articles 249 and 250 (A, B, and C). This reform includes working animals, animals used for entertainment, and experimentation. In addition, it has aggravating circumstances such as causing the animal's death or engaging in sexual behavior with the animal. Article 647 establishes that any citizen file may file a complaint for animal cruelty instead of leaving this power exclusively to the general attorney. The complaint must be filed before a judge of criminal guarantees where the acts or omissions against the animal occurred.
Causing harm to an animal is currently penalized by imprisonment for two to six months under the current criminal code. In cases involving cruelty or torture, the penalty increases to six to twelve months of imprisonment. Sexual acts with animals or their exploitation are punishable offenses. If such acts result in the animal’s death, the offender may face one to three years of imprisonment. If the animal dies for reasons unrelated to sexual conduct, the offender may be imprisoned for six months to one year. Additionally, imprisonment for one to three years is imposed for acts of cruelty resulting in the animal's death. Prohibitions against dog fighting, abandoning companion animals, and animal mistreatment are also in effect.
V. Other Laws Protecting Animals
Animal protection in Ecuador derives from the Constitution, and different aspects and provisions are scattered around in some general codes. Examples of these codes include the criminal code, the environmental code, and the sanitary code. In addition, there is one law concerning the responsible ownership of dogs.
Ecuador has a legal framework that protects what they have called “urban fauna.” Even though this term can be confused to include only stray animals, the law has defined it to include not just animals that live in urban areas, such as mammals or birds, but also by definition, it also includes animals used for human consumption, working animals, and animals use for experimentation definition.
In Ecuador, the municipalities monitor and protect the urban fauna, but national laws provide the general framework. However, not all municipalities have ordinances regulating the management of urban fauna. According to “Terranimal” This is problematic because local laws are often outdated, there is no consistency among statutes, there is no budget allocation, and the ordinances are often transitory with insufficient deadlines to achieve objectives. In addition, the administrative system is inefficient, evident by bureaucratic procedures and the system’s saturation. There is a lack of adequately trained staff, including trained inspectors, veterinarians, judges, and prosecutors in animal welfare and animal rights (Management of Urban Fauna, Terranimal, Oct 2021). The following are the general national laws that provide the legal framework for the protection of animals in Ecuador.
Código Orgánico del Ambiente (COA)
The Environmental Code was published in 2018. It is the law that regulates matters related to the environment and its adequate management. It aims to “guarantee the right of people to live in a healthy and ecologically balanced environment, as well as protect the rights of nature for the realization of good living.” This code was the base for reforming the Criminal Code, which increased the punishment for animal cruelty. This law contains administrative sanctions, including fines, animal confiscation, community service, prohibition to acquire or keep animals temporality or permanently, and payment of veterinary, food, and maintenance costs required for the animal’s recovery, among others (COA, Articles 320-232).
The environmental code contains environmental management provisions, including wildlife, urban fauna, climate change, waste management, etc. Under this code, the welfare of domestic animals and wildlife is a duty. It establishes the obligations and responsibilities related to animals. Regulations, control management, and coordination of the parameters outlined in this law lay on the Autonomous decentralized Municipal or Metropolitan Governments. For instance, cities have the power to regulate animal welfare concerning the ownership of animals and during the rearing, commercialization, breeding, transportation, and euthanasia of animals. Another example of this power vested in the cities and municipalities is the responsibility to establish plans and programs to prevent, manage, and control animal populations. This includes informative and educational campaigns on animal welfare, sterilization, and responsible adoption (COA, Art 144).
One of the objectives of this law is to “regulate and promote animal welfare and protection” (COA, Art 3.6). Title VII, Chapter I, Section I contains the general regulations for the responsible management of “urban fauna.” This term is defined by Article 140, and it includes domestic animals, animals that live in public spaces, and animals that constitute a risk of spreading diseases in the urban perimeter. This code also defines the term “urban wildlife” as those species that have moved into urban areas or been introduced into these areas. The term Urban fauna covers companion animals, working animals, animals used for human consumption, animals used for entertainment, and animals used for experimentation (COA, Article 142).
Art. 145 establishes the duties and responsibilities of animal keepers and owners. It states that according to the species, the owner or keeper must satisfy the basic needs of the animals in terms of:
- Food, water, and shelter, according to the requirements of each species;
- A treatment free of aggression and mistreatment
- Veterinary care; and
- Respect to the guidelines of the natural behavior of the animal, according to its species.
Articles 146 and 147 contain acts that against animals that are prohibited. These acts include animal cruelty, sexual conduct with animals, abandonment, poisoning, and causing the death of an animal, except in those cases where the animal is killed for human consumption or when the animal represents a risk for the transmission of diseases. Article 147 also prohibits using animals in circuses—the use of animals for cosmetic testing purposes and the vivisection of animals in schools. Experimentation with live animals in universities, laboratories, or educational centers is allowed only in cases where other procedures or alternatives cannot be applied. For all cases of animal experimentation, the international principle of replacement, reduction, and refinement of processes will be used, as well as international bioethical standards.
Last but not least, Title VII, Chapter I, Section III concerning “Special Regulations,” instructs cities and municipalities to prohibit bullfighting events where animals are killed in those cities where the majority of citizens voted against this practice in the 2011 popular consultation (COA, Art 148). This law also imposes the duty on the local governments to prevent and control the overpopulation of urban animals (COA, Art 149); and to have in place temporary shelter facilities for abandoned animals, who will have to be sterilized and be given appropriate veterinary care for their recovery, reinsertion, or adoption, where euthanasia will be the last resort for population control purposes (COA, Art 150). This code also prohibits sport hunting and allows hunting for sustenance and medicinal, cultural practices whose objectives are not commercial or profitable.
In addition, this law is regulated by “Decreto ejecutivo 452, 2019,” known as “Reglamento al Código Orgánico del Ambiente,” or the Environmental Code, which creates the National Committee of Natural Heritage. This committee has the duty to establish inter-institutional agreements that guarantee animal welfare, as well as the prevention, control, and management of biological risk caused by zoonotic diseases, fires, pests, forest diseases, exotic species, and other factors of natural or anthropogenic origin that represent a risk to human health. In addition, it regulates the management of wildlife, invasive species, hunting, management of urban fauna, animal transportation, and urban wildlife.
Cities and municipalities are in charge of the monitoring and enforcement of the environmental law and its regulation and have the duty to periodically inspect the establishments outlined in Art 387 of the “Decreto ejecutivo 452” (which regulates the environmental code) to ensure that such establishments are complying with animal welfare standards. The regulation also instructs municipalities to create a companion animal registry.
A. Companion animals
Besides the law for responsible ownership of dogs, Ecuador does not have a law that specifically focuses on companion animals. However, the protection of companion animals and other animals is regulated in provisions within organic codes such as the Criminal Code that applies to animals that belong to the “urban fauna” (see above) and the Environmental Code.
The Criminal Code, article 249, punishes a person who “injures a pet or a companion animal with two to six months of imprisonment. If the conduct is intentionally cruel or with the intent to torture the animal, the punishment will be imprisonment from six months to one year (see above).
Ley Organica de la salud
The organic law for health was enacted in 2006. It seeks to implement and regulate the right to health established in the Constitution and the law. Article 123 establishes that domestic animal owners must vaccinate their animals against rabies and other diseases the health authority considers a risk to cause epidemics. Owners are also responsible for keeping their animals in conditions that do not risk human health and environmental hygiene. Under the same article, municipalities, in coordination with the health authority, control and handle stray animals.
Acuerdo Interministerial para la Tenencia Responsable de Perros, 2009
This regulation has been in effect since 2009, and it seeks to regulate the responsible ownership of dogs. It focuses on those breeds that are not recommended as pets because they are considered dangerous. This is with the purpose of protecting the health and life of the citizens (Article 1). This regulation establishes the standards of welfare for the keeping of dogs, duties, and obligations of owners and keepers. It regulates the breeding and commercialization of dogs, population control, dogs as companion animals, dangerous dogs, working dogs, and service dogs.
Under this regulation, dogs of the Pit Bull and Rottweiler breeds are considered dangerous. They cannot be “pets” unless the owner obtains the corresponding permission from the Department of Criminalistics of the National Police. Dogs that have previously attacked one or more persons, so long as a report has been filed.
This regulation instructs the Ministry of Public Health to create a dog identification system. Dog owners are required to identify their animals through microchipping or tattooing and to register them in the system.
The municipalities are instructed to work with public and private entities to develop programs to control stray dog populations and educate the public on responsible ownership. In Addition, the municipalities are in charge of the remotion from the streets and the relocation or euthanasia of abandoned and lost dogs. Therefore, the municipalities must use procedures that do not cause the dogs pain, suffering, or anguish. Furthermore, dogs adopted out to the public must be sterilized, registered in the identification system, dewormed, and vaccinated according to current laws.
Some of the most important provisions of this regulation are explained below.
Article 32 defines animal welfare based on the five freedoms. It states that animal welfare is “a state of permanent physical and mental health of the dog in harmony with the environment. This status is based on respect for the following “5 Freedoms”:
- Freedom from fear and anguish.
- Freedom from pain, damage, and disease.
- Freedom from hunger and thirst.
- Freedom of discomfort; and
- Freedom to express normal behavior.
Article 3 establishes that all owners, keepers, and guides are required to:
- Provide anti-rabies vaccination and other vaccines determined by the National Health Authority, according to the country's or region's epidemiological situation.
- Provide healthy and nutritious food according to the species.
- Provide adequate living conditions and habitat within a healthy environment.
- Educate, socialize, and interact with the dog in the community.
- Keep the dog in good physical, hygienic, and health conditions both in its habitat and when transporting it, according to the requirements of its species.
- Keep only the number of dogs that allows the owner to comply with animal welfare standards.
- Keep pets inside the home and provide safety measures to avoid dangerous situations for people and animals.
- Use a collar and a leash while walking dogs in public spaces.
- Collect and sanitarily dispose of the waste produced by dogs in public spaces.
- Ensure that the dog does not cause inconvenience to the neighbors of the area where they live due to noise and foul odors they may cause.
- Cover all medical expenses, prostheses, and psychological damage of the person or persons affected by the physical damage that their dog could cause.
In addition, this article establishes that the owner or keeper of dogs that cause damage to property or injuries to one or more persons is not obligated to comply with numeral 11 in the following circumstances:
- When the person enters private property without authorization or in the control of public order.
- If the injuries or damages are caused after the animal is provoked, mistreated, or attacked, or if the dog is protecting any person or guide nearby and is being physically attacked or assaulted.
- If the aggression occurs while the dog is raring puppies and when the pups are threatened.
The following are prohibited acts imposed on owners and keepers concerning their dogs under Article 6:
- Mistreating, hitting, or submitting the dog to any practice that causes them suffering or harm.
- Abandoning or keeping dogs in isolated places.
- Not maintaining facilities in a hygienic-sanitary way and keeping animals without care or food;
- Placing dogs in small spaces according to their size and physiological and ethological needs, exposing them to inclement weather, hunger, thirst, or isolation;
- Permanently keeping dogs in chains, cages, patios, balconies, rooftops, or similar.
- Forcing the animal to work while in conditions of disease or malnutrition.
- Selling dogs on the streets, roads, and public spaces or in places intended for the sale of food for human consumption. A verbal or written complaint is not required for health police stations to proceed to seize the dogs and take them to the shelters of animal protection entities or other institutions of that type for their adoption or euthanasia, as the case may be.
- Selling pets to minors.
- Poisoning dogs massively or individually, whether they are their own or someone else’s.
- Training, organizing, or promoting fights between dogs or with other animals and/or betting on them.
- Giving dogs as a prize or donating them for scientific purposes contrary to animal welfare and bioethics standards.
- Use of animals in shows, religious acts, exhibitions, advertisements, or the like when this implies suffering or pain.
- Walk a dog with a written history of aggression on public roads.
- Sedating dogs during their stay in the commercialization and aesthetic establishments unless it responds to a prescription from the Veterinarian.
- Tying dogs on trees, posts, bars, pillars, or any other site in public spaces or communal areas impeding regular pedestrian traffic or endangering the safety of passers-by or the animals themselves.
- Carrying out the commercial activity of training dogs in public spaces not authorized for that purpose.
- Using the image of dogs to symbolize aggressiveness, malice, danger, or pornography.
- Exercising bestiality without prejudice to the criminal actions that may be established for this crime.
- Filming scenes with dogs where they are mistreated, given drugs, substances, or treatments that alter their natural behavior.
- Commercialize organs or parts of dogs.
Violation of the norms established by this regulation will be subject to civil sanctions imposed by the Health Commissioner in coordination with the National Police so the dog can be seized. The legal mechanism to report violations of this law is a popular action (A popular action is a constitutional mechanism for the immediate protection of collective rights and interests).
It creates the National Committee of Natural Heritage, which has, among other things, the responsibility of establishing inter-institutional agreements that guarantee animal welfare, as well as the prevention, control, and management of biological risk caused by zoonotic diseases, fires, pests, forest diseases, exotic species, etc., that represent a risk to human health or the biodiversity, in coordination with the Competent Authorities.
The regulation for the responsible ownership of dogs has some relevant provisions. For instance, standards are tailored to provide well-being to animals according to their particular needs. It is also interesting that some of the exceptions to the duty of dog owners to compensate for harm to property or injury consider circumstances such as whether the dog was provoked, if the dog was defending a human, or if her puppies were threatened. Moreover, owners and keepers are not allowed to abandon animals, according to Article 6. When it comes to the government’s duties, the municipalities are required to use humane methods in trapping stray dogs, and the regulation also creates a dog identification system. Note that many municipalities have their own ordinances regarding animal well-being. For instance, Quito’s ordinance considers abandonment a serious infraction sanctioned with a monetary fine of 10 unified basic salaries ($4,000) (Article 123, Ordenanza Metropolitana No. 019, 2020). Despite the existence of laws at the national and local levels, current provisions do not seem to have much force, as many cities are currently facing a public crisis due to the high number of dogs that live on the streets. For instance, studies conducted in 2018 showed 600,000 abandoned animals in Quito alone. In 2020, The Secretary of Health and Urbaanimal reported an increase in the number of abandoned animals, going from 1 to 10 cases per day the same year (The abandonment of dogs increased by 90% due to the pandemic, La Hora, May 2021). The staggering numbers show that current laws are not solving the issue. It is unclear whether the problem is the lack of meaningful laws, public policy, monitoring, and enforcement mechanisms. The population, in general, seems to be indifferent to animal cruelty. Even though there is a high number of animal cruelty cases, the number of reported cases is relatively small. For instance, in Quito, the country’s main city, only 177 animal cruelty cases were reported in 2021 (Casos de maltrato animal como el de Bruno son frecuentes en Quito, Ecuavisa, 2022). On the other hand, the municipality of Loja reported they had had 318 animal cruelty reports between January and July of 2022. The main violations concerned the owners not providing food, water, or adequate care to their animals (60 animal cruelty reports per moths in Loja, La Hora, Sep 2022).
B. Farm animals
Animal farming is an essential component of the agricultural economy in the country. Due to the unique characteristics of the land, Ecuador has a privileged position to raise different species in different environments, with beef cattle, pork, and chicken being the main species produced and consumed in this country. Animal farming is based on extensive farming rather than intensive. Since 2016, the Ministry of the Environment (MAE) and the Ministry of Agriculture and Livestock (MAG) have been working on the project environmentally smart cattle raising (PGCI) to reduce land degradation, mitigate greenhouse gas emissions and improve the adaptive capacity of the livestock sector (Consumption value theory: sustainable farms in Ecuador, Revista Eruditus, 2022, and Current Meat Production In Ecuador, PRONACA, 2020).
The national legal framework focuses primarily on the welfare of farm animals to prevent zoonotic diseases and protect the population's life and health. Farm animals are the least protected animals in Ecuador, Even though they are technically under the animals protected by the criminal code and the environmental code. There are provisions based on the five freedoms, but in general, no meaningful regulations establish mandatory welfare cohesive mandatory standards. Existing standards and requirements during the rearing, transportation, and slaughter phases focus on preventing human and animal health risks, not providing animal welfare.
Article 281, 7 of the Constitution establishes that the government’s responsibility is to ensure that animals destined for human consumption are healthy and raised in a healthy environment. Even though Farm animals are part of the definition of “urban fauna” of Article 142 of the Environmental Code (COA), they are an exception to the prohibition to kill animals established in Art 146 of the same code and Article 150.1 of the criminal code. Art 146 of the COA, however, has a limitation to this exception. It mandates that the implementation of practices in the treatment of farm animals complies with international animal welfare protocols in this area. Furthermore, Article 151 states that the slaughter of farm animals is done according to processes, practices, protocols, and standards that promote the minimization of suffering and pain.
Article 143 states that in managing the urban fauna, the guidelines and norms on the welfare of animals for human consumption throughout the supply chain that the National Authority for Agriculture, Livestock, Aquaculture, and Fisheries issues, must be considered to ensure the safety and quality of the products that reach the consumer.
In addition, The organic code of agricultural health contains provisions regarding the welfare of farm animals.
The organic code of agricultural health of 2017 has as its primary objective to prevent the entry, dissemination, and establishment of pests and diseases; promote animal welfare; control and eradication pests and diseases that affect plants and animals and that could represent a phytosanitary and animal health risk.
This law creates the Regulatory Agency for Phytosanitary and Zoosanitary Control. This agency is responsible for regulating and controlling animal health and welfare, plant health, and food to maintain and improve the adequate conditions of agricultural production. Among other duties, this agency is responsible for issuing animal welfare regulations and establishing the health requirements and standards of animal welfare in slaughterhouses, animal and meat transportation, and disposable offal. This agency is the regulating and enforcing authority of compliance with good agricultural health practices, animal welfare, and the safety of farm products in their primary phase. It inspects and controls compliance with animal health and welfare regulations throughout the entire supply chain. In addition, this agency oversees the regulation of the use of animals for scientific, educational, entertainment, and cultural purposes.
The Code of Agricultural Health also creates the Public Information on Agricultural Health subsystem within the National System of Public Agricultural Information. This system will provide information on the certification of farms that apply good agricultural and livestock sanitary practices and animal welfare standards.
The welfare standards of farm animals during transportation and slaughter are contained in regulations issued by the Regulatory Agency for Phytosanitary and Zoosanitary Control in the form of recommendations. However, there are no specific standards for the welfare of farm animals during the rearing phase. Therefore, the treatment of animals before they leave the farm would be subjected to Chapter IV, article 48 of this law.
Chapter IV is a chapter concerning animal welfare. Article 48 establishes that dispositions regarding animal welfare are based on existing national and international standards. The animal welfare standards in this law are based on the five freedoms. That is freedom from hunger and thirst, physical discomfort, pain, injury, and disease, and freedom to express normal and natural behavior.
Under this law, welfare conditions are mandatory in the handling and transporting of animals, regardless of whether transportation is by land, air, or sea. Slaughterhouses must be authorized to operate by the Agency for Phytosanitary and Zoosanitary Control. The control and inspection before and post-mortem of the animals will be carried out by an authorized veterinarian or a veterinarian belonging to the Agency. They will have a permanent audiovisual record of the procedures, slaughter tasks, and animal welfare standards. The authorized veterinarian will rule the urgent slaughter of animals in the cases indicated by the Regulations of this law. Determination by prior inspection that the slaughterhouse does not have adequate sanitary conditions or does not observe good animal welfare practices will result in the temporary closure of the establishment until the situation that originated the infraction is remedied. Repetition of the violation will result in definitive closure.
Finally, violations of this code carry out administrative infractions that will result in fines, temporary suspension of the certificate; definitive cancellation of the certificate; confiscation of plants or animals; destruction and incineration of plant products that represent phytosanitary risks, and sacrifice of sick animals that represent zoosanitary or human health risks; temporary or definitive revocation of the authorization to export, import and commercialize agricultural products; and temporary or permanent closure of the establishment, as the case may be.
Wildlife regulations are more extensive than regulations regarding other animals. Ecuador constitutionally recognizes nature as a subject of rights. The constitution recognizes its value and mandates that humans live harmoniously with nature. Under the constitution, it is the duty of all citizens and the government to protect nature. The conservation of nature is of public interest, as well as the conservation of ecosystems, biodiversity, and the integrity of the country's genetic patrimony (See above). Ecuador's legal framework has more comprehensive laws and regulations regarding nature and its processes. Moreover, Ecuador is part of the Ramsar Convention, the Convention for the Protection of the World Cultural and Natural Heritage, CITES, and the Convention on Biological Diversity.
Crimes against wildlife are addressed separately from other animals in Chapter IV, “Crimes against the environment and nature, or “Pacha mama.” Section I of this chapter addresses the crimes against biodiversity, and Article 247 discuss the crimes against flora and fauna. This article, however, does not apply indistinctly to all wildlife species. It applies only to species protected by national law and international treaties ratified by Ecuador. Sustenance fishing and hunting and traditional medicine practices are exempted from the application of this article. It states:
“The person who hunts, fishes, captures, collects, extracts, posses, transports, traffics, benefits from, exchanges, or commercializes specimens or their parts, the products and derivatives of terrestrial, marine, or aquatic wild flora or fauna, of threatened, endangered and migratory species, listed at the national level by the National Environmental Authority as well as international instruments or treaties ratified by the State, will be sanctioned with a custodial sentence of one to three years.”
The maximum penalty will be applied if the act is committed in the period or zone of seed production or reproduction, incubation, nesting, birth, breeding, or growth of the species or if the action is carried out within the National System of Protected Areas.
When the species is not protected or listed on official documents or legal instruments, then Article 4 of the “Ministerial agreement No. 084, 2015” states that environmental rights and principles established in the Constitution will apply.
In addition to the sanctions established in the Criminal Code (COIP), the Environmental Code (COA), in its article 318.2, establishes additional monetary fines of up to 200 minimum wages and other administrative sanctions established in art. 320, such as confiscation of the animal(s) and the equipment utilized for committing the violation. Under Article 318, hunting, fishing, trapping, collecting, extracting, possessing, exporting, importing, transporting, mobilizing, using, managing, and commercializing wildlife species, migratory, endemic, or in some category of threat, their parts, or derivative products without administrative authorization is considered a severe infraction.
The general organic procedural code contains provisions concerning the representation of nature. These provisions state that any person may file a lawsuit claiming damages on behalf of nature. More specifically, under the articles in Chapter II, nature can be legally represented by any person, entity, collectivity, or by the ombudsperson, who may also act on their initiative. Article 30 establishes who can be a plaintiff and a defendant under the law. Nature is within the definition of these parties.
The Ministry of the Environment issued ministerial agreement 062, which regulates the use of wild animals in circuses. This regulation aims to eliminate wildlife trafficking, trade, and cruelty.
Article 14 prohibits using wild animals in activities that threaten the animals' safety, which risks their integrity. It also prohibits using methods that torture the animals or training that harms them. Finally, article 17 prohibits owners and keepers of animals from mistreating them or hurting them. It defines mistreatment as nonauthorized actions that harm animals and deteriorate their physical integrity. Under this regulation, circuses that keep wildlife animals cannot enter the country. Additionally, the importation of animals for the same purpose is not allowed.
Decreto 752 regulates the environment code. It comprises seven books that regulate each of the books in the Environmental Code regulating topics such as natural heritage, environmental quality, climate change, the coastal marine zone, environmental incentives, etc. these books contain chapters, sections, and provisions concerning wildlife, urban fauna, protected areas, production, and sustainable use, etc. This regulation establishes that all wildlife species are protected by the government, and gives special priority to native, endemic, threatened, and migratory species. It prohibits the commercial trade of wildlife from being used as pets without authorization; the commercial trade of native, endemic, threatened, and migratory wildlife species directly taken from their natural habitat; and other prohibitions that the environmental authority may establish. This executive decree also regulates the application of The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in Chapter V, articles 106-121.
VI. Relevant Jurisprudence
A. Jurisprudence on Animal Rights
Even though under Ecuador’s Constitution nature is subject of rights, the issue of individual animals as subject of rights was not addressed until recently. It was the unprecedented case of Estrellita, a woolly monkey that was seized by the authorities after living with a family for 18 years. Estrellita died soon after she was transferred to a zoo. This case addresses the scope of the rights of nature established in the Constitution and animals as subjects of rights as part of nature. Before this case, animals were protected as species, not as individuals. Since Estrellita’s ruling, more courts continue to rule in favor of the rights of animals, such as the case of Cuqui Brown, a sloth where the court denied a habeas corpus filed by his keepers requesting that he be returned to them after being seized by the authorities. In addition, A court of appeals denial of a habeas corpus petition on behalf of pets found inside several properties seized in a drug trafficking case has been submitted to the Constitutional Court. If selected, the court will address whether habeas corpus petitions can be used in companion animal cases. With Estrellita’s ruling, Ecuador became the first country to grant wild animals the status of subjects of rights. Setting a precedent that is starting to permeate lower courts analysis in decisions concerning different types of animals and opening the door to the recognition of animal rights through the rights of nature in those countries that have incorporated this concept into their legal systems.
This groundbreaking decision opened the door to animal rights in Ecuador. In 2022, Estrellita was the first animal to be granted the status of subject of rights. Her sad story began when she was illegally taken from her habitat when she was one month old. A family kept Estrellita for 18 years. Interestingly, this case started as an environmental crime when an anonymous person reported to the authorities that the plaintiff was keeping a pet monkey illegally. At first, the plaintiff refused to surrender Estrellita, but the environmental authorities seized her and relocated her to a zoo in Ambato (a nearby province).
The authorities reported that Estrellita was entirely humanized, in a precarious condition, malnourished, and aggressive toward unfamiliar humans. In addition, the veterinary report stated that she was underweight, had coat depigmentation, and had partial hair loss due to her poor diet. Furthermore, her skin was dry and flaky, possibly due to a fungus infection. The veterinarian also found that Estrellita had worn teeth that made it difficult for her to eat solid foods essential for a healthy diet.
The plaintiff filed a habeas corpus petition to have Estrellita returned to her custody. The plaintiff argued that Estrellita's life and integrity were at risk because she was suffering. Moreover, the plaintiff stated that she perceived herself as Estrellita's mom and that Estrellita was part of the family. Estrellita had learned their customs and communicated with them through signs and noises. Since they were Estrellita's only family, she had to be freed to go back to the only home she knew.
Unfortunately, Estrellita died while she was at the zoo. Nevertheless, the plaintiff stated that the habeas corpus was still appropriate to reclaim Estrellita's body. Ultimately, the Constitutional Court decided to select the case to develop binding jurisprudence on matters such as:
The scope of the rights of nature and to determine whether these rights covered the protection of a particular wild animal such as the "Estrellita."
To review whether the rights of nature have been violated in the specific case of "Estrellita."
To develop general guidelines for the applicability of constitutional guarantees in favor of wild animals such as "Estrellita."
The court held that, indeed, animals are subjects of rights, including wild animals. Also, constitutional mechanisms and guarantees, such as habeas corpus, could apply to non-human beings depending on the circumstances. In its analysis, the court stated that to determine whether the rights of nature covered the legal protection of animals, such protection had to be analyzed from the principles of interspecies and ecological interpretation.
The interspecies principle recognizes that all animals have rights, and the protection of their rights will depend on the species' particular needs. The court stated: "The interspecies principle 'means that animals cannot be seen as subordinates or as tools, and their needs and desires must be seriously considered."
The principle of ecological interpretation refers to the respect for biological interactions between species, populations, and individuals of each species. Each species has its particularities on which biological interactions are based. According to the court's analysis, in these interactions, some individuals benefit from others by causing harm or even death, like in the case of a predator and its prey, in which case, the right to life of an animal is not illegitimately violated. In other words, since all species have their own purpose in the food chain, some species can be used for food, even by humans, so long as such use of the animals does not alter biological cycles in a way that risks the survival of a species or pushes it to extinction.
In answering the second question as to whether Estrellita's rights of nature had been violated, the court analyzed three instances:
- When she was taken from her natural habitat and kept for 18 years by a human family
- When the authorities seized her, and
- When the authorities relocated her to a zoo.
The court held that Estrellita's rights to life and integrity were violated by both the plaintiff and the government. Specifically, concerning her removal from her habitat to live with a human family, the court found that there was no good reason within the interspecies principle or ecological interpretation that justified her removal from her habitat and the conditions in which she lived for 18 years and that, in fact, her removal and inadequate keeping was against these principles. In addition, she belonged to an endangered species (she was a woolly monkey) whose birth and survival rate is currently outstandingly low, which means that her removal from her habitat brought the species closer to extinction. For these reasons, the court found that the rights of nature had also been violated in this case.
Regarding her seizure by the authorities, the court found that the environmental authority had violated Estrellita's rights when seizing her. The court found that the authorities did not consider her particular circumstances and specialized care and assistance. More specifically, the authorities did not consider whether alternatives or some transitioning phase were necessary according to her circumstances, as she had only lived in a human environment. The court observed that even though the removal of Estrellita from the plaintiff's home was legitimate, the authorities should consider her needs and rights when removing her from the only home she knew. The court stated: "When the exercise of such powers has the potential to affect, or they actually affect, the rights of animals in a way that is not compatible with the principles of interspecies or ecological interpretation, the protection of the wild animal and the specific context in which the animal is, must be the first priority." Failing to account for her particular circumstances (according to the plaintiff and the government report) negatively affected her health. Consequently, the court held that the authorities did not consider Estrellita's physical and mental well-being before and during her removal from the plaintiff's home. Therefore, her right to integrity and the rights of nature had been violated.
Lastly, concerning the third instance (relocating Estrellita to the zoo and her subsequent death), the court emphasized that the death of Estrellita was not due to natural causes but rather to her poor physical and mental condition attributable to the acts and omissions of both the plaintiff and the authorities involved because such conditions are the result of removing her from her natural habitat and because she was not given the minimum conditions to thrive according to her circumstances.
In this ruling, the Constitutional court established that Estrellita's rights were violated and that all animals, as part of nature, are subjects of rights, Creating new judicial precedent and opening the door to other animals to utilize habeas corpus (depending on the circumstances) and other legal mechanisms to exercise their rights. However, the court made it clear that even though animals have intrinsic value, their rights are not absolute, and such rights have different levels of protection, essentially stating that they can still be killed for food.
To ensure that this judicial decision was implemented in practice rather than remaining only a theoretical concept, the court directed the Ministry of Environment and the Ombudsman's office to take action and regulate the matter of animal rights by creating protocols or regulations to guide the actions of the Ministry for the protection of wild animals, mainly of those animals subject to seizures by the standards outlined in this decision. In addition, the court instructed the Ombudsman's office to draft a bill on animal rights containing the rights and principles outlined in this herein. Finally, it directed the National Assembly to pass a law on animal rights.
Even though this decision does not extend far enough to ensure the legal protection of some animals, such as agricultural animals, it marks a significant step forward in recognizing animals as more than just property or a resource. In this case, the ruling recognizes the intrinsic value of animals and their value as members of nature.
Following the Estrellita case (Constitutional Court decision No. 253-20-JH/22), in 2022, the owner of "Cuqui Brown," a two-fingered sloth filed a habeas corpus petition following his seizure by the authorities. In this case, the court denied the habeas corpus and held that the plaintiff violated "Cuqui Brown's" rights established in Estrellita's case.
In January 2022, The authorities executed a search order in the plaintiff's restaurant, which resulted in the seizure of the sloth. Cuqui Brown was relocated to Puyo's "Yanacocha" Wildlife Rescue and Rehabilitation Center. In her habeas corpus, the plaintiff stated that "Cuqui" was raised by the family since he was one month old after his "biological mother" was killed by a feline on their property. It was common for the family to take the sloth to their restaurant, where they often took and posted pictures of him. As a result of the family's frequent postings on social media, the authorities became aware that private individuals were keeping a wild animal., which is illegal in Ecuador. In her habeas corpus petition, the plaintiff relied on the decision issued by the Constitutional Court concerning "Estrellita," the woolly monkey, where the court held that animals were subjects of rights protected by the rights of nature. The plaintiff argued that in that case, the government's violation of "Estrellita's" rights had resulted in "Estrellita's" death. The plaintiff asked the court to order the authorities to return "Cuqui" to her custody, so she could provide the care and protection she had always given him. The plaintiff alleged that "Cuqui Brown" was part of his family and that she loved him as she saw Cuqui as her own child. Cuqui was raised on milk and given bread and coffee as an adult. He was overweight and had teeth, gum, and coat issues. His nails were unkempt, and he did not know how to claim trees and find food.
In its reasoning, this court stated that the constitutional court in Estrellita's case did not conclude that humans have rights over wild animals, but rather that wild animals have their own rights as they are part of nature, that is, at the same time subject of rights as well. The court concluded that the interpretation of Estrellita's case by the plaintiff is erroneous by stating that wild animals have the right not to be captured, not to be taken from their habitat and the right to be reintroduced into their natural habitat and not to be "domesticated and obligated to assimilate human characteristics or appearances for the convenience or benefit of humans." Furthermore, the court stated that this right ensures that wild animals are not the object of humanization processes. On the contrary, the decision in Estrellita's case directs the government and judges to protect nature and its inhabitants and recognize their rights. In applying Estrellita's decision to the present case, the court concluded that it is the court's responsibility "to recognize that the sloth had and has the right not to be taken from his natural habitat, and the right to be returned to it promptly." He has the right not to be domesticated, to not be integrated into a human environment, and to not be subjected to a process to turn him into a 'pet.' Cuqui also has the right not to be exhibited to tourists and customers at the plaintiff's restaurant, not just because of his intrinsic rights, but also due to the danger of the spread of zoonotic diseases. Therefore, all the actions Cuqui was subjected to under the plaintiff's care did not constitute rights as part of nature, but to the contrary, they violated them.
This is the case of four cats (Luna, Manchas, Sonic, and Tiger) and two dogs (Pantera and Noah) that were inside the properties seized by the authorities in a case of drug trafficking. Attorney Kevin Prendes Vivar filed a habeas corpus petition for the animals' caretaker, stating that the animals were illegally kept by the "Technical Secretary of Real Estate Management of the Public Sector" or "Inmobiliar," the government agency that seized the properties. The claimant argued that the animals, as subjects of rights under the Constitutional Court decision 253-20-JH/22, were in a state of solitude that put them at risk of health and well-being issues as these animals had an emotional attachment to their caretakers. Animals are sentient beings different from other objects, and their detriment is reflected in their physical and emotional health, causing conditions such as depression and anxiety, conditions that could potentially end their life. The animals were kept by 'inmobiliar,' and neither the caretaker nor the attorney had been given information about the condition of the animals. Furthermore, the claimant was concerned about whether the animals were being fed, as 'Inmobiliar' did not have a budget to feed animals subject to seizures. According to the claimant, the animals were her family members, and her children suffered without them.
The provincial court of Guyanas granted the habeas corpus, holding that animals are subjects of rights, finding that 'Inmobiliar' had violated the animals' rights by considering them seizable personal property. Therefore, the court held that their seizure was illegal, arbitrary, and illegitimate. To protect their rights to life, freedom, and integrity, and ordered Inmobiliar to return the animals to their caretakers. In its analysis, the court stated that according to Estrellita's case, animals should not be protected solely from an ecosystem perspective or from the perspective of human needs but rather from their individuality and intrinsic value. The court further instructed the government entity not to consider 'pets' as movable objects in future judicial proceedings, and to distribute, through institutional email, to all its officials the constitutional court's decision 253-20-JH/22, directing them to read and analyze it.
This decision was appealed by 'Inmobiliar' and a tribunal of the Criminal Chamber of the Provincial Court of Justice of Guyanas struck down the decision granting the habeas corpus in favor of the animals stating that this legal mechanism was not appropriate in the case of domestic animals. In its holding, the court ordered the return of the animals to "Inmobiliar." This decision has been sent to the Constitutional Court for review. If the court selects it, it will rule on whether a writ of habeas corpus is appropriate in cases concerning companion animals specifically.
B. Jurisprudence on Animal Protection
In this case, the environmental authorities of the Galapagos National Park (the Galápagos Islands is an archipelago known for its unique species and marine ecosystems) tracked through the satellite monitoring system the Chinese reefer vessel—Fu Yuan Yu Leng 999—on national waters while it was cruising through the Galapagos marine reserve without the required permit. The park issued an alert to the National Guard which approached the vessel by water and air. Upon searching the vessel, the authorities found approximately 532 tons of fish that included 7.639 sharks (7207 juveniles or adults, 432 unborn). All shark specimens found on board lacked fins, and nine of the 12 species were protected endangered species.
The court found that the —Fu Yuan Yu Leng 999— had entered a protected area without the required permits, remaining in the restricted area for approximately 21 hours. The court convicted the captain and three other crew members to 3 years of prison, and the remaining 16 members to one year for possessing and transporting protected species within the Galápagos Marine Reserve. This is a crime against wildlife under Article 247 of the criminal code. Crimes against flora and fauna apply only to species protected by national law and international treaties ratified by Ecuador. The article states:
“The person who hunts, fishes, captures, collects, extracts, posses, transports, traffics, benefits from, exchanges, or commercializes specimens or their parts, the products and derivatives of terrestrial, marine, or aquatic wild flora or fauna, of threatened, endangered and migratory species, listed at the national level by the National Environmental Authority as well as international instruments or treaties ratified by the State, will be sanctioned with a custodial sentence of one to three years.”
In addition, the court ordered the impounding of the vessel and payment of a monetary fine of 6.1 million US dollars as reparation in favor of the Galápagos National Park for the environmental damage caused to the marine ecosystem. This verdict was appealed, and the Specialized Chamber of the Guayas Provincial Court ordered that the vessel be returned to its actual owners, as it did not belong to any of the persons found guilty. Subsequently, the case went to the Court of Cassation of the National Court of Justice, which unanimously accepted the appeal filed by the Prosecutor's Office and reversed the decision of the Guayas Provincial Court, ordering the confiscation of the vessel, the payment of the monetary sanction of 5.9 million US dollars, and imprisonment for the principals and accomplices of the crime. The reversal was based on article 69.2 of the criminal code, that establishes that “criminal confiscation proceeds in all cases of intentional crimes and applies to property when it is an instrument, product, or revenue in the commission of the crime.”