ASOCIACION DE FUNCIONARIOS Y ABOGADOS POR LOS DERECHOS DE LOS ANIMALES Y OTROS CONTRA GCBA SOBRE AMPARO

In this decision, the Court No. 4 on Contentious Administrative and Tax Matters decided on an ‘accion de amparo’, which is a mechanism for the protection of constitutional rights in the Argentine legal system. “Asociación de Funcionarios y Abogados por los Derechos de los Animales” (AFADA) and Andres Gil Dominguez brought the constitutional action against the government of the City of Buenos Aires and the Zoo of Buenos Aires on Behalf of Sandra, an orangutan that lives in this zoo. The Plaintiff argued that the defendants had illegally and arbitrarily violated Sandra’s right to ambulatory freedom, her right to not be considered an object or thing susceptible of property and the right to not suffer any physical or psychological damage to which Sandra is entitled as a non-human person. The Plaintiff sought the “release and relocation of Sandra to a sanctuary where she could develop her life in a real state of well-being that would be determined by an Expert Evaluator in the matter”, arguing that she was born in captivity and her cage at the zoo is described as a “truly cement cage." The Plaintiff further argued that it had no green areas, trees, nor did it have any environmental enrichment. All of these factors violated Sandra's right to animal wellbeing, as she is likely to suffer from stress and depression along with her physical health at risk as well. The Plaintiff also requested a precautionary measure of protection to convene a hearing with the Defendants to inform about the current situation of Sandra and the measures taken to cease her captivity.

The argument was based on the Argentina’s Federal Chamber of Criminal Cassation ruling on the same matter arguing that that court had held Sandra as a non-human person subject to rights, which means that Sandra is no longer an object under protection of the law and has become a subject holder of certain fundamental rights. As sentient beings, AFADA continues, animals should be entitled to enjoy certain fundamental rights, such as the right to life, right to liberty and right to not suffer ailments, which translates in the protection of their basic interests. Moreover, the Plaintiff alleged that the conditions Sandra was living in were against the minimum parameters of wellbeing established by the World Association of Zoos and Aquariums (WAZA), The Universal Declaration on Animal Welfare, the national law of animal protection Ley N° 14.346 and the Wildlife Conservation Law Ley No. 22.421. The Plaintiff alleged that “orangutans are sentient beings, sentient, intelligent and genetically similar to human beings, with similar thoughts, emotions, sensitive and self-reflective; who have culture, ability to communicate and a rudimentary sense of good and evil; an individuality of its own, with a unique history, character and preferences. And Plaintiff concludes that, "Particularly SANDRA is a member of a species that does not know, and a species that lives in a habitat and a climate that does not know either, and has the mental state of an 'Institutionalized Orangutan.'”

The judge had to decide whether Sandra the orangutan had rights and it would implicate that she is a non-human person and whether Sandra’s release and relocation were appropriate according to the her particular circumstances. The court found that there was no legal impediment to come to the same conclusion as the Federal Chamber of Criminal Cassation, and therefore, “the orangutan Sandra was a non-human person, subject of rights and consequent obligations towards her by humans.” The court stated that the interest legally protected by law is not the property of a human person or legal basis but the animals themselves.

The court decided for the petitioner, concluding that Sandra had the right to enjoy the highest quality of life possible to your particular and individual situation, which should tend to avoid any kind of suffering generated by the interference of humans. In its reasoning, the court pointed out that “Sandra's legal recognition as a "non-human person" incorporates a categorization that does not change the existing categorization in the Civil Code between goods and people, since the categorization of "sentient beings" connects the obligations of human persons towards animals”. The court further explains that, "The protected interest in the crime of animal abuse is none other than the right of the animal itself not to be the object of human cruelty, for which it is necessary to recognize the character of the subject of rights” and that this was possible since "the law as any category and way of classifying and ordering daily life, was a social construction based on this principle, and the argument about who should be the beneficiaries of certain rights and those who do not, is an aspect that can be modified."

As part of its decision, the court also ruled that the Buenos Aires government had to guarantee Sandra adequate conditions of her habitat and the activities necessary to preserve her cognitive abilities. The court instructed the amicus curiae experts Dr. Miguel Rivolta, Héctor Ferrari and Dr. Gabriel Aguado to prepare a binding report resolving what measures had to be adopted by the Government in relationship to Sandra.