of 11 January 2012
on the objection of unconstitutionality of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme, as approved by Law no.227/2002 and, in particular , of Article I point 5 [concerning Article 4 paragraph (1)], point 6 [concerning 5 paragraphs (1) and (2)], point 8, point 9 [concerning Article 8 paragraph (3) subparagraphs a) to d)], point 14 [concerning Article 131 and 134], point 15 [concerning Article 14 paragraph (1) subparagraph b)] of the Law
Published in the Official Gazette no.53 of 23 January 2012
On the grounds of the provisions of Article 146 subparagraph a) of the Constitution and Article 15 paragraph (1) of Law no.47/1992 on the organisation and functioning of the Constitutional Court, republished, on 25 November 2011, a group of 70 Deputies belonging to the Social Democratic Party Parliamentary Group and 54 Deputies belonging to the National Liberal Party Parliamentary Group asked the Constitutional Court to rule on the constitutionality of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme.
The reference of unconstitutionality was registered with the Constitutional Court under no. 51/5.667 of 25 November 2011 and constitutes the subject matter of the File no.1.413A/2011.
This reference act was signed by the following Deputies: Cristian Mihai Adomniţei, Marin Almăjanu, Teodor Atanasiu, Dan Bordeianu, Octavian Bot, Viorel-Vasile Buda, Daniel-Stamate Budurescu, Cristian Buican, Mihăiţă Calimente, Mircea Vasile Cazan, Mariana Câmpeanu, Daniel Chiţoiu, Tudor-Alexandru Chiuariu, Liviu-Bogdan Ciucă, Horia Cristian, Ciprian Minodor Dobre, Paul Victor Dobre, Mihai-Aurel Donţu, Gheorghe Dragomir, George Ionuţ Dumitrică, Relu Fenechiu, Damian Florea, Graţiela Leocadia Gavrilescu, Andrei Dominic Gerea, Alina-Ştefania Gorghiu, Florentin Gust Băloşin, Titi Holban, Pavel Horj, Nicolae Jolţa, Mihai Lupu, Dan-Ştefan Motreanu, Gheorghe-Eugen Nicolăescu, Ludovic Orban, Viorel Palaşcă, Ionel Palăr, Cornel Pieptea, Gabriel Plăiaşu, Cristina-Ancuţa Pocora, Virgil Pop, Octavian-Marius Popa, Călin Constantin Anton Popescu-Tăriceanu, Călin Potor, Ana Adriana Săftoiu, Nini Săpunaru, Adrian George Scutaru, Ionuţ-Marian Stroe, Radu Stroe, Gigel-Sorinel Ştirbu, Gheorghe-Mirel Taloş, Adriana Diana Tuşa, Radu Bogdan Ţîmpău, Ioan Ţintean, Florin Ţurcanu, Horea-Dorin Uioreanu, Mihai Alexandru Voicu, Gheorghe Ana, Gheorghe Antochi, Nicolae Bănicioiu, Eugen Bejinariu, Vasile Bleotu, Dumitru Boabeş, Doina Burcău, Ion Călin, Dumitru Chiriţă, Ioan Cindrea, Gheorghe Ciocan, Eugeniu Radu Coclici, Dorel Covaci, Victor Cristea, Ioan Damian, Andrei Dolineaschi, Sonia-Maria Drăghici, Cristian-Sorin Dumitrescu, Ion Dumitru, Mircea Duşa, Marian Ghiveciu, Horia Grama, Viorel Hrebenciuc, Iulian Iancu, Florin Iordache, Cornel Etu, Florina Ruxandra Jipa, Silvestru-Mircea Lup, Costică Macaleţi, Iulian Claudiu Manda, Manuela Mitrea, Vasile Mocanu, Ion Mocioalcă, Carmen Ileana Moldovan, Emil Radu Moldovan, Rodica Nassar, Adrian Năstase, Marian Neacşu, Cătălin-Ioan Nechifor, Dan Nica, Nicolae-Ciprian Nica, Laurenţiu Nistor, Constantin Niţă, Iuliu Nosa, Tudor Panţîru, Florin-Costin Pâslaru, Petre Petrescu, Victor-Viorel Ponta, Georgian Pop, Florian Popa, Vasile Popeangă, Dan-Mircea Popescu, Neculai Răţoi, Cristian Rizea, Sorin Ioan Roman, Lucreţia Roşea, Victor Socaciu, Ioan Stan, Ion Stan, Nicolae Stan, Anghel Stanciu, Sorin Constantin Stragea, Viorel Ştefan, Florin-Cristian Tătaru, Horia Teodorescu, Mihai Tudose, Aurelia Vasile, Gabriel Petru Vlase, Aurel Vlădoiu, Mădălin-Ştefan Voicu and Valeriu Ştefan Zgonea.
As grounds for the objection of unconstitutionality, the authors brought arguments concerning both the extrinsic and the intrinsic unconstitutionality of the Law amending and supplementing Government Emergency Ordinance no. 155/2001 concerning the approval of the stray dogs management programme, as follows:
I. Concerning the extrinsic challenges of unconstitutionality, the authors of the objection consider that the impugned legal provisions infringe upon Article 61 paragraph (2) of the Constitution, because the decisional Chamber, respectively the Chamber of Deputies brought significant amendments to the wording of the law adopted by the Chamber of reflection, respectively the Senate. The authors alleged that, given these circumstances, in terms of law-making procedure, the principle of bicameralism, as outlined in the Constitutional Court’s case-law, was infringed upon.
The authors also alleged that Government Emergency Ordinance no. 155/2011, amended and supplemented by the criticised law, infringes upon Article 115 paragraph (4) of the Constitution, because it is not based on a law for delegated powers, and management of stray dogs does not constitute an exception case.
II. Concerning the intrinsic challenges of unconstitutionality, it is claimed that the criticised law is contrary to the rules of legislative technique, as it regulates the situation of dogs identified /with owner/holder and abandoned dogs, in spite of the fact that Law no. 205/2004 on animal protection comprises regulations in that respect, the latter incriminating, for example, dogs abandonment.
It is argued that the provisions of "Articles 4, 5 and 7 of the law" providing for euthanasia of stray dogs violate the Universal Declaration of Animal Rights, "solemnly proclaimed in Paris on 15 October 1978 at the UNESCO headquarters", the European Convention for the Protection of Pet Animals, as well as Article 13 of the Treaty on the Functioning of the European Union. It is pointed out that the criticised law makes no reference to the "legislation of protection of animals", it does not include any principle of protection and assurance of animals’ rights, and the provisions of protection of their rights comprised in the criticised law are minimal. Euthanasia of stray dogs is contrary to human dignity as "euthanasia is a violent, traumatic measure, impeding the free development of human personality." Such a measure lacks proportionality in relation to the situation that caused it, because it removes their right to life; euthanasia should be regarded as an exceptional measure within certain disease control programmes, and the rule should consist in the reduction of the unplanned breeding of dogs, through their sterilization.
Euthanasia is therefore individual, not collective, and communities cannot decide under any circumstance to euthanize dogs - especially since they will be tempted to opt for this measure ab initio. It is argued that the measure of euthanasia cannot depend on local communities’ decision-making power, whereas in Romania the law must be applied uniformly at national level. As a drawback of this measure it is given the example of stray dogs that migrate from the administrative - territorial unit where the measure of putting them down was implemented to neighbouring units that do not apply such measure.
Likewise, mass euthanasia of stray dogs will endanger the very existence of the common breed and will produce predictable imbalances, which violates the people’s right to a healthy ecologically balanced environment.
The authors criticised the elimination from the initial legislative proposal of the regulations concerning the standards to be met by public shelters for stray dogs, as well as the failure to clearly and explicitly regulate the obligations of public authorities, the standards and the care conditions in public shelters.
It was also argued that the application of the measure of euthanasia by a veterinarian contravenes Article 50 of the Veterinary Medical Ethics Code, which provides that the veterinarian should refrain from performing euthanasia of animals, except where such ends the suffering of an incurable patient. It was also argued that the breach of that obligation results in suspension of the exercise of the veterinary profession.
It was pointed out that "Article 5 paragraph (1) of the Law" provides a very short period for potentially aggressive dogs euthanasia, a term which does not ensure the right of petition, free access to justice or the right to private property. The authors claimed that the owner of such a lost dog does not have sufficient time to recover it given the extremely short time in which it is going to be euthanized.
It was argued that the provisions of "Article 8 paragraph (3) of the Law" provide unfair limitations of the right to private property as concerns the adopter of more than two dogs, as the latter must meet certain conditions, such as evidence of a living space, flat owners' consent or payment of certain fees, unduly restricting his/her right to property, considered by the authors of the objection as an absolute right. Thus, the impugned law affects also the citizens’ private life. Likewise, it was argued that in order to encourage adoptions, none such fees should be paid. Moreover, according to the authors of the objection of unconstitutionality, "the owners of stray dogs are discriminated against owners of other species of stray animals", as the latter animals cannot be euthanized.
It was argued that "Article 131 of the Law" infringes upon Article 44 of the Constitution, as one cannot be forbidden to raise/care or keep dogs in areas adjacent to public spaces.
The authors claimed that "Article134 of the Law" is unconstitutional, as it provides for the sterilization of mix-breed dogs, with or without owner, which for the owner of a mix-breed dog is equal to the breach of his/her right to property. Likewise, civil sanctioning of the person who does not fulfil this obligation, provided by "Article 14 paragraph (1) subparagraph b) of the Law", infringes his/her right to private property.
In accordance with Article 16 paragraph (2) of the Law no.47/1992 on the organisation and functioning of the Constitutional Court, the reference act was sent to the presidents of both Chambers of Parliament, as well as to the Government, in order to express their viewpoints.
The President of the Senate sent to the Constitutional Court, through Letter no.1.830/12 December 2011, his viewpoint, whereby he asserted that the reference of unconstitutionality is unfounded.
With respect to the extrinsic challenges of unconstitutionality, he stated that the criticised law complies with the constitutional requirements of the bicameralism principle, invoking in this respect the case-law of the Constitutional Court. At the same time, he stated that Article 115 paragraph (4) of the Constitution, invoked by the authors, has no relevance in the case, as the subject of the constitutionality review is the law for modification and not the law for approval of an emergency ordinance.
On the merits of the exception of unconstitutionality, he states that the euthanasia of stray dogs should be provided in the text of the law, since the number of these animals is increasing, and other measures such as sterilization or keeping them in specially built shelters have had no result. He also stressed the fact that the measures provided in the impugned law constitute fair solutions for solving the problems created by stray dogs.
The President of the Chamber of Deputies sent to the Constitutional Court, through Letter no.51/5.772 of 30 November 2011, her viewpoint, whereby she asserted that the reference of unconstitutionality is unfounded.
Concerning the extrinsic challenges of unconstitutionality, the submission is that the debate in the decisional Chamber concerned the contents and the form of the law adopted in the Senate, the Chamber of refection, and was related to the matter considered by the initiator. It is considered that the decisional Chamber brought some improvements to the impugned law, and that the adopted wording is not in contradiction with the legislative initiative adopted by the Senate. Concerning the alleged violation of Article 115 paragraph (4) of the Constitution, it is pointed out that this constitutional text has no relevance in the case, because the subject of the constitutionality review is a law and not a simple ordinance or an emergency ordinance.
Concerning the intrinsic challenges of unconstitutionality, it is claimed that the impugned legal texts provide, as a rule, the sheltering, adoption and sterilisation, with the release in public space of stray dogs, while euthanasia is only an exceptional measure. It is argued that the provisions of Article 1 paragraphs (1) and (5) and of Article 35 and Article 53 of the Constitution are irrelevant to the case, since, on the one hand, the ordinary courts are the ones competent to assess whether or not law has been broken, and the fair or unfair character of a measure does not amount to its unconstitutionality and, on the other hand, the authors did not give a statement of reasons with respect to the alleged infringement of Article 35, while Article 53 relates to people, not animals.
It is also pointed out that reliance on Article 26, Article 44 and Article 136 paragraph (5) of the Constitution is not relevant, because the law refers to stray dogs and not to those that have an owner.
Finally, it is asserted that the 3-day period set forth in Article I point 6 of the Law only applies once the 30-day period provided by Article I point 5 of the Law has expired, which means the owner of a lost dog has sufficient time to recover it. Moreover, the law provides also a measure aimed to guarantee the recovery of the dogs by their owners, namely their registration in the Stray Dog Records, which permits the identification and recovery of the lost dog by its owner.
The Government sent to the Constitutional Court, through Letter no.5/6.894/E.B. of 7 December 2011, its viewpoint, whereby it asserted that the reference of unconstitutionality is unfounded.
Concerning the extrinsic challenges of unconstitutionality, it is asserted that both the wording of the normative act adopted by the Senate, as first notified Chamber, and that adopted by the Chamber of Deputies, as decisional Chamber, maintain the same object and purpose of the respective normative act, i.e. measures for the management of stray dogs’ situation. Therefore, the alleged violation of the bicameralism principle is unfounded.
In the Government’s opinion, Article 115 paragraph (4) has no relevance in this case, as this constitutional provision can be invoked within the a priori constitutional review only when a law for approval of an emergency ordinance is challenged.
Concerning the intrinsic challenges of unconstitutionality, it is argued that the impugned law does not comprise regulations lacking clarity or precision and that it represents a concrete and efficient measure of implementation of the State’s obligation to adopt measures aimed to ensure an ecologically balanced and healthy environment, and as a result the alleged infringement of Article 1 paragraph (5) and Article 35 paragraph (1) of the Constitution cannot be accepted.
It is mentioned that the provisions of Articles 11 and 12 of the European Convention for the Protection of Pet Animals provide and permit in terminis their killing. Concerning the alleged infringement of the provisions of Article 13 of the Treaty on the Functioning of the European Union, it is argued that the Constitutional Court has no jurisdiction to verify compliance of national legislation with the acts of the European Union
Finally, the Government states that the other constitutional provisions relied upon as grounds for the objection of unconstitutionality are either irrelevant in the case or they cannot be considered while carrying out the constitutional review, given the lack of a motivation supporting the alleged unconstitutionality of the impugned law.
having examined the objection of unconstitutionality, the viewpoints of the president of the Senate, of the president of the Chamber of Deputies and of the Government, the filed documents, the report drawn up by the judge-rapporteur, the submitted evidence, the provisions of the impugned law, as against the provisions of the Constitution, as well as Law no. 47/1992, holds as follows:
The Constitutional Court has been legally referred to and is competent, according to the provisions of Article 146 subparagraph a) of the Constitution, as well as of Article 1, Articles 10, 15 and 18 of Law no.47/1992, republished, to settle the reference of unconstitutionality.
The subject matter of the constitutional review, as results from the letter of communication of the reference by the Secretary General of the Chamber of Deputies, are the provisions of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme. The Court finds that, in fact, according to the reference of unconstitutionality, the subject matter of the constitutional review are the provisions of Article I point 5 [concerning Article 4 paragraph (1)], point 6 [concerning 5 paragraphs (1) and (2)], point 8, point 9 [concerning Article 8 paragraph (3) subparagraphs a) to d)], point 14 [concerning Article 131 and 134], point 15 [concerning Article 14 paragraph (1) subparagraph b)] of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme, as well as of the law in its entirety. The impugned legal texts stipulate the following:
- Article I point 5 concerning Article 4 paragraph (1): ”Stray dogs shall be sheltered in the stray dogs management services shelters, where they shall stay for 30 days, except for claimed ones. Population must be informed regularly about the existence of the shelter, the visiting program and the possibility of adoption.";
- Article I point 6 concerning Article 5 paragraphs (1) and (2): "(1) After examination by a freelance veterinarian, organised under the terms of the law, stray dogs that are seriously, terminally or irretrievably ill, aggressive dogs, as defined in Article 2 paragraph (1) subparagraph b) of Government Emergency Ordinance no.55/2002 on the rules governing possession of dangerous or aggressive dogs, approved by Law no.60/2003, dangerous dogs, dogs for fighting and assault, as defined in Article 1 subparagraphs a) and b) of the same emergency ordinance, let loose, abandoned or which carer cannot be identified shall be euthanized within 3 working days, in compliance with the veterinary legislation in force.
(2) Euthanasia is a medical act consisting in painless inducement of a quick death of the dogs referred to in paragraph (1) or that have not been claimed or adopted under the conditions and terms established by this emergency ordinance."
- Article I point 8: "(1) If, after expiry of the sheltering period provided for in Article 4, the dogs have not been claimed or adopted under the provisions of Annexes Nos. 4 and 5, they may be kept in shelters, returned to the territory, euthanized or the said measures can be combined, as decided by the local councils, respectively by the General Council of Bucharest Municipality, after consulting the population within the respective administrative-territorial jurisdiction.
(2) For the time the dogs are kept in shelters their claiming shall be settled with priority.
(3) Dogs unclaimed within seven days can be adopted by individuals and legal entities, as well as by adoption centres specially equipped and organized for this purpose, belonging to animal welfare organisations and foundations, in compliance with the provisions of Article 8 paragraph (3).
(4) Dogs under the age of 5 months will remain in shelters until their claim / adoption, but no later than the age of 12 months."