ABSTRACT
The relationship of animals with humans dates back to the existence of mankind. Starting from the first eras of humanity, humans tried to domesticate animals for different purposes such as transportation, protection, companionship and even for food. In today’s world, animals have become indispensable living beings with an inherent value. However, their status is not yet obtained under most legal systems and, thus, there have been widespread discussions on the legal status of animals. Do animals have legal personalities? Do they have rights? Are the legislation amendments throughout the world regarding animal protection sufficient? Does the law digress from its human-centered approach and define animals as the subject of rights? The purpose of this study is to investigate the legislation regarding the protection of animals in different countries from past to present and the discussion on the legal status of animals in Turkish Law in regard with legislation Law No.7332 on The Amendment on Animal Protection Law and Criminal Law and Circular No. 2021/48 on Regulation on Dangerous Animals, as well as compared to foreign laws.
The purpose of this study is to investigate the legislation regarding the protection of animals in different countries from past to present and the discussion on the legal status of animals in Turkish Law in regard with legislation Law No.7332 on The Amendment on Animal Protection Law and Criminal Law and Circular No. 2021/48 on Regulation on Dangerous Animals, as well as compared to foreign laws.
I. INTRODUCTION
Law is defined as the set of rules governing the society. Society, on the other hand, includes humanbeings, the nature in which humans exist, vegetation, as well as animals in its definition. Therefore, the order of law covers the necessary regulations that concern animals and protects them, as well as it regulates human behavior.
II. DISCUSSIONS ON THE LEGAL STATUS OF ANIMALS
Throughout history, regulations on animal rights have been a subject of law, and this has led to discussions on whether animals are the owners or only subjects of the right.
Although no consensus on the legal status of animals has been reached yet, there are authors who see animals as; property1, sui generis entity2 or atypical property3. Albeit there are regulations in Turkish law in which animals are separated from property4. It can generally be said that animals are accepted to have the status of property. The legal status of animals, on the other hand, can differ in foreign law systems. It is explicitly regulated in the German Civil Code that animals are not considered as property and they will be protected by certain laws5. In parallel with German Civil Code, it is accepted in Swiss Civil Code that animals do not have the status of property, however, provisions regarding property will be applied, unless otherwise regulated6. As another example, an animal is defined in Swedish law as a living creature with a sufficient developed mind7. It was acknowledged that in a dispute dated 2017, a monkey named Naruto holds all the intellectual property rights of the photo taken by Naruto itself using the camera of a photographer8.
According to the classical approach, legal entities are classified in two groups: namely natural person and legal entity and only these can be the holders of rights. Animals do not have legal personalities. They lack the capacity to have rights and the capacity to act and therefore, this situation brings an additional issue on how animals will benefit from the rules of law that protects them. Some opinions have been put forward regarding the origin of the term rights regarding animals. Accordingly;
Singer theorizes that “suffering is a necessary condition to express a truth and an interest”. He further states that “an animal exposed to a physical blow will feel pain, however that animal does not have any interest in being the victim of such a blow” and clears that animals are the owners of the right, inasmuch as they are able to suffer from pain9. Additionally, Nutall rejects the idea of “humans own rights because they have intelligence and consciousness and animals don’t because they don’t have such qualifications like humans”10, while Jeremy Bentham adds what’s crucial on the analysis of animal’s rights is to determine, “whether animals suffer pain, not whether they interrogate”11.
There are examples throughout history that found animals responsible and punished them. In 1936, a pig was killed in France by being exposed to torture, because it was held liable for killing a child12.
In light of technological progress and scientific developments, it is more than possible to interpret animals as creatures with emotions and accept they suffer from psychological, emotional, and physical pain. Thus, they need to be protected under law even if they lack the capacity to have rights. In the event that the lives and bodies of animals are endangered, the necessity to regulate the law for the benefit of animals has been brought to the agenda of legislation and several regulations protecting animal rights, both in our country and around world, have been and still continue to be executed.
III. ANIMAL - RIGHTS ORIENTED LEGAL REGULATIONS
From past to present, a myriad of international agreements such as “International Convention for the Protection of Birds”, “1950 Paris Agreement, Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973)”, “European Convention for the Protection of Animals during International Transport”, “The European Convention for the Protection of Animals for Slaughter,” have been signed and put into force in order to protect animals and their rights13.
The first legal regulation on animal rights in history was made in the Massachusetts colony of England in the United States in 164114 and accordingly; “no man shall exercise any tyranny or cruelty towards any brute creature which are usually kept for man’s use”15. With another legislation enacted in the Kingdom of Saxony, it was stipulated that those who torture animals would be punished, and accordingly, those who intentionally harm animals would be sentenced to four weeks in prison. Laws aiming to protect the health and welfare of animals were also enacted in the Netherlands16.
On October 15th 1978, the Universal Declaration of Animal Rights was proclaimed in Paris by the United Nations Educational, Scientific and Cultural Organization (“UNESCO”). Pursuant to Article 1 of the declaration, “all animals are born with an equal claim on life and the same rights to existence” and as Article 3 regulates, “no animal shall be ill-treated or shall be subject to cruel acts”17.
Legislation on protecting animals are nowadays in force in European countries such as Germany18, Austria19 and the Netherlands20 and enforcements to protect animals are carried out in praxis. In 1999, the Animal Welfare Act was proclaimed in New Zealand21 and housing conditions of animals were improved and first step to prevent ill treatment was taken. Moreover, it prohibited animals to be subject to medical experiments22.
As to examine the legislation procedure in Turkey, Law No. 5199 on the Protection of Animals (“Law No. 5199”) was accepted in 2004 to make animals live in a comfortable environment, prevent their ill treatment and protect them from torture. In addition, other legislation, regulations and circulars were published directly or indirectly related to animals and their rights.
Pursuant to the 1982 Constitution of the Republic of Turkey Article 56, “everyone has the right to live in a healthy and balanced environment”. Furthermore, Article 169/1 regulates that “the State shall enact the necessary legislation and take the measures required for the protection and extension of forests. (…) All forests shall be under the care and supervision of the State”, while the same article says “Acts and actions that might damage forests shall not be permitted”. As mentioned in the introductory paragraph, since society includes the environment and forests in its definition and no animal can be different from the environment, it is appropriate say that these provisions protect animal rights.
According to the Turkish Penalty No. 5237, Article 181/1, “Any person who intentionally discharges waste or refuse material into the earth, water or air, contrary to the technical procedures as defined in the relevant laws and in such a way as to cause damage to the environment, shall be sentenced to a penalty of imprisonment for a term of six months to two years.” and 181/4, “Where an offence is committed as defined under paragraphs one and two in relation to waste or refuse material which has a characteristic that may cause the alteration of the natural characteristics of plants or animals, enhance or create infertility or cause an incurable illness in humans and animals, the offender shall be sentenced to a penalty of imprisonment for a term of not less than five years and a judicial fine of up to a thousand days”.
IV. ANALYSIS ON LAW NO . 7332 ON THE AMENDMENT OF THE ANIMAL PROTECTION LAW AND THE PENAL CODE23
Protective regulations regarding animal rights were introduced in Law No. 5199, within the execution of Law No. 7332 on the Amendment of the Animal Protection Law and the Penal Code in 2021 (“Law No. 7332”). Although Article 12 of Law No. 7332 imposed only a judicial fine for the acts of willfully killing, torturing, exterminating and attacking certain animal groups, the punishment of these actions were converted to imprisonment after the amendment of Law No. 5199. In other words, although there was no prison sentence for crimes against animals under the Animal Protection Law, imprisonment became possible for crimes against animals with the amendment.
Moreover, the term “pet” was defined and the right of legal entities owning pets was regulated in Law No.5199. Thus, the number of animals protected by law has increased. However, it should be acknowledged that only owned animals are subject to this definition.
In addition, the establishment of animal shelters, being subject to the permission of the Ministry of Agriculture and Forestry, aim to prevent the torture and ill-treatment to animals, as well as protect the general health of animals by arranging the treatment and sterilization of stray, homeless animals.
With Law No. 7332, an important amendment was formed in Law No. 5199, which closely concerns pet owners. In regard to this regulation, which is namely referred to as the chip regulation, cat and dog owners are obliged to register their animals digitally. In other words, their dogs and cats shall be inserted a chip for their digital identification. This provision is generally aimed at preventing the loss of owned animals. In this manner, the inserted chip will locate the animals 24/7, preventing the cases of lost animals. Another purpose of this regulation is to protect owned cats and dogs against their owners, in case of any kind of violent action against them.
With the amendment, Article 151/2 of the Turkish Penal Code regulating that “any person who, without reasonable excuse, kills or harms an animal in such a way as to render it unusable or as to lower its value”, the provisions of the above paragraph, namely the provision of Damage to Property being applied, has been abolished. With this amendment, crimes against animals will be excluded from the scope of damage to property.
In addition to these regulations, there are still some points to scrutinize. Although the owned animal is excluded from the scope of damaging property, animals are still considered movable property in the context of theft crime. In other words, if one steals someone else’s owned animal, that person will be the perpetrator of a theft crime, categorized as an offence against property. Besides, some of the judicial punishments added with Law No. 7332 are regulated only for owned animals. Only a judicial fine is envisaged for stray animals and these acts against stray animals do not even constitute a crime.
Another point to discuss in this study is the situation of dangerous animals. Both Law No. 5199 and Law No. 7332 contain regulations regarding dangerous animals24. Pursuant to the aforementioned provision, it is forbidden to produce, own, adopt, house, feed, barter, exhibit, gift, and enter, sell and advertise dangerous animals in our country. For the protection and health of these species, the law only imposes an obligation on municipalities to establish nursing houses25. Regarding which animals are included within this scope, the Ministry of Agriculture and Forestry has published a circular on December 7th, 2021. This circular will be reviewed below.
V. CIRCULAR NO 2021/48 ON DANGEROUS ANIMALS26
Within the scope of Circular No. 2021/48 on Dangerous Animals (“Circular No. 2021/48”), animals categorized as dangerous are nothing else than pets. These animals are classified only as a different type, since they are thought to give damage to people.
Prior to the amendment of Law No. 7332, Article 14/1-l of Law No. 5199 defined dangerous races as “Pitbull Terrier, Japanese Tosa” and in accordance with the relevant provision, it was forbidden to produce, own, enter into the country, sell and advertise, exchange, display and gift dangerous animals. With the amendment of Law No. 7332, it was decided that the dangerous races would be determined by the Ministry in the relevant provision, but these species were expanded to “Pitbull, Terrier, Japanese Tosa, Dogo Argentino, Fila Brasilerio”. On 07.12.2021, Circular No. 2021/48 was published on the identification of these breeds. According to Circular No. 2021/48, American PitBull Terrier, Dogo Argentino, Fila Brasilerio, Japanese Tosa, American Staffordshire Terrier and American Bully dogs have been identified as dangerous races. According to the relevant Circular No. 2021/48, Dogs of PitBull Terrier, Japanese Tosa, Dogo Argentino and Fila Brasilerio that were owned before July 2021 and those who were conceived before July 2021 would be awaited to give birth to animals for sterilization and the puppies to reach four months old. As for the American Staffordshire Terrier and American Bully races that were conceived before the enforcement of Circular No. 2021/48, the sterilization process is to be performed after the animals have given birth and the puppies are four months old. In addition, the Circular regulates the provision of information to the Ministry in case of the death of the animals that pose a danger.
In addition, these endangered species, in accordance with Circular No. 2021/48, “cannot be introduced in public places, children’s playgrounds or parks without a registration document, mouthpiece and collar”. The ban on entering public places and children’s playgrounds and parks with the obligation to wear mouthpieces and leashes will be applied from the date of entry into force of Circular No. 2021/48. In case of any breach of the provision, a judicial fine of eleven thousand Turkish Liras is to be imposed. According to Circular No. 2021/48, those who own these animals will be able to leave the animal in a hospice. However, in the case of leaving the animal on the street, the Circular stipulated that a judicial fine of thirty thousand Turkish Liras would be imposed on the actual perpetrator.
VI. CONCLUSION
Animals, which have been in the lives of people from past to present, have become a subject that the law has also started to protect. In the past, opinions were put forward that animals have no sense, do not feel pain and/ or cannot have rights because they do not have the capacity and it was seen that animals were killed without any legal protection from these actions. However, in later time, the point of view towards animals has changed from a human-centered point of view and the idea that animals are living beings in the need of protection has begun to take root. In this regard, the Universal Declaration of Animal Rights was proclaimed in Paris by UNESCO. Immediately afterwards, various countries, including Turkey, have done the necessary work to protect animals and adapted the issue of animal protection in their legislation. Although there are regulations to protect animals, they are still classified as owned, unclaimed and endangered animals and each class is not given equal protection. It is crucial to get down to the essential problems and change the perspective towards animals, give them the inherent value they deserve and take appropriate remedial steps. It should be remembered that people have never been alone on earth, that animals existed before mankind, and they will continue to exist after mankind.
BIBLIOGRAPHY
DAVID E. COOPER, Jeremy Bentham on Animal Ethics, 10th of March 2022 https://daily-philosophy.com/cooper-quotes-bentham-animal-suffering/.
DAVID FAVRE, Living Property: A New Status for Animals Within the Legal System, Marquette Law Review, V. 93, Iss. 3, 2010 https://scholarship.law.marquette.edu/mulr/vol93/ iss3/3.
EMRE CUMALIOĞLU, Medeni Hukukta Hayvan Hakları ve Hayvanlar Üzerinde Hak, D.E.Ü Hukuk Fakültesi Dergisi, V. 19, Iss. 3, 2017. HALİL YILMAZ, Hayvan Haklarına Bakış, TBD Dergisi, Iss. 62, 2006. ÖZGÜN ÇELEBİ, “Kişi ve Eşya Ayrımı Bağlamında Hayvanların Hukuki Statüsü”, İstanbul Hukuk Mecmuası, V. 76, Iss. 2, Yıl 2018.
ŞEREF ERTAŞ, Çevre Hukuku ve Hayvan Hakları Hukuku, 2. Baskı, Ankara 2012. Schuldig! – Tiere auf der Anklagebank von Elke Bodderas, veröffentlicht am 21.03.2014, https://www.welt. de/vermischtes/kurioses/article125886895/Schuldig-Tiere-auf-der-Anklagebank.html.
FOOTNOTE
1 David Favre, Living Property: A New Status for Animals Within the Legal System, 93 Marq. L. Rev. 1021 (2010), https://scholarship.law.marquette. edu/mulr/vol93/iss3/3.
2 Antoine, Başpınar, s. 1386 via Özgün Çelebi, Kişi ve Eşya Ayrımı Bağlamında Hayvanların Hukuki Statüsü, Yıl 2018, V. 76, Iss. 2, p. 607.
3 Şeref Ertaş, Çevre Hukuku ve Hayvan Hakları Hukuku, İleri Kültür Merkezi, 2. Baskı, İzmir 2012, p. 478, 479.
4 Article 940 of the Turkish Civil Code regulates that a pledge without delivery can be established in animal sales, and Article 82 of the Industrial Property Law No. 6769 dated 2017 excludes from patent protection procedures that will be applied on animals and that will cause suffering to animals.
5 Bürgerliches Gesetzbuch in der Fassung der Bekanntmachung vom 2. Januar 2002 (BGBl. I S. 42, 2909; 2003 I S. 738), das zuletzt durch Artikel 5 des Gesetzes vom 24. Juni 2022 (BGBl. I S. 959) geändert worden ist, Art. 90/a “Tiere sind keine Sachen. Sie werden durch besondere Gesetze geschützt. Auf sie sind die für Sachen geltenden Vorschriften entsprechend anzuwenden, soweit nicht etwas anderes bestimmt ist”.
6 Schweizerisches Zivilgesetzbuch vom 10. Dezember 1907, Madde 641/a “Tiere sind keine Sachen. Soweit für Tiere keine besonderen Regelungen bestehen, gelten für sie die auf Sachen anwendbaren Vorschriften”.
7 Emre Cumalıoğlu, Medeni Hukukta Hayvan Hakları ve Hayvanlar Üzerinde Hak, D.E.Ü Hukuk Fakültesi Dergisi, V. 19, 2017, p. 577-578.
8 Peta, Settlement Reached: ‘Monkey Selfie’ Case Broke New Ground for Animal Rights 2017, https:// www.peta.org/blog/settlement-reached-monkeyselfie-case-broke-new-ground-animal-rights/.
9 Halil Yılmaz, Hayvan Haklarına Bakış, TBD Dergisi, 2006, Iss. 62, p. 216.
10 Yılmaz, p. 216.
11 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, 1789, Ch 17. n.122 via David E. Cooper, Jeremy Bentham on Animal Ethics, 10th of March 2022 https://daily-philosophy.com/cooper-quotes-bentham-animal-suffering/.
12 Schuldig! – Tiere auf der Anklagebank von Elke Bodderas, veröffentlicht am (Yayınlanma Tarihi) 21.03.2014, https://www.welt.de/vermischtes/kurioses/article125886895/Schuldig-Tiere-auf-der-Anklagebank.html.
13 1971 Ramsar Convention for the Protection of Wetlands of International Importance as Waterfowl Habitats (OG 17.5.1994), Convention for the Protection of the Mediterranean Sea against Pollution, Convention for the Protection of the World Natural Heritage, 1979 Bern Convention for the Conservation of European Wildlife and Habitats (OG 20.2.1984).
14 The Massachusetts Body of Liberties, adopted in December 1641, available on https:// archive.csac.history.wisc.edu/6_Massachusetts_ Body_of_Liberties.pdf madde 92-93.
15 The Massachusetts Body of Liberties, adopted in December 1641 Article 92: “No man shall exercise any tyranny or cruelty towards any brüte creature which are usually kept for man's use”.
16 Yılmaz, p. 218.
17 Universal declaration of animal rights (15 October 1978), proclaimed in Paris on 15 October 1978 at the UNESCO headquarters Article 1, “All animals are born with an equal claim on life and the same rights to existence”, Article 3 “No animal shall be ill-treated or shall be subject to cruel acts”.
18 Tierschutzgesetz in der Fassung der Bekanntmachung vom 18. Mai 2006 (BGBl. I S. 1206, 1313), das zuletzt durch Artikel 105 des Gesetzes vom 10. August 2021 (BGBl. I S. 3436) geändert worden ist.
19 Bundesgesetz über den Schutz der Tiere (Tierschutzgesetz – TSchG).
20 VERORDENING (EG) Nr. 1/2005 VAN DE RAAD, van 22 december 2004
21 Animal Welfare Act 1999, No 142.
22 Yılmaz, p. 218.
23 Law Amending the Law on the Protection of Animals and the Turkish Penal Code, 14.07.2021. OG. Acceptance Date: 09.07.2021.
24 The species listed as “Pitbull, Terrier, Japanese Tosa” in Law No. 5199 were further expanded with Law No. 7332 and listed as “Pitbull, Terrier, Japanese Tosa, Dogo Argentino, Fila Brasilerio”.
25 Law No. 7332, Article 13 “Metropolitan municipalities shall (...) establish animal nursing homes for the protection, care and rehabilitation of endangered animals".
26 Republic of Turkey Ministry of Agriculture and Forestry, Circular numbered E-26137614-280.99-3163942 and dated 07.12.2021.
