Constitutionality Review

A. Amendments Introduced to Article 3 § 1 of Law no. 5199 by Article 2 of Law no. 7527

The contested provisions eliminate the possibility of caring for stray animals without adopting them, stipulating that such animals shall be taken into shelters and kept there until they are adopted.

It is understood that the impugned provisions, envisaged to eliminate risks that stray domestic animals may pose to human health and physical integrity, constitute a requirement of the right to life and the right to protection of corporeal and spiritual existence, and that they also intend to meet the needs arising from the right to live in a healthy and balanced environment.

In particular, eliminating the possibility of caring for dogs without adopting them clearly contributes to averting the dangers they may pose to human life and physical integrity. The legislator enjoys a wide margin of appreciation in determining the control mechanism needed to be adopted to prevent risks posed by such animals to human health. Given the seriousness of the threat posed by aggressive stray animals to human health, the legislature may take the necessary measures within the scope of its discretion.

Elimination of the possibility of caring for domestic animals without adoption and keeping such animals in shelters until they are adopted also falls within the scope of the State’s obligation to take the necessary measures for ensuring a healthy and balanced environment. In addition to preventing the risks and dangers posed by stray animals, these shelters will also serve the purpose of rehabilitating them. The legislature is likewise afforded discretionary power in determining the procedures and methods through which such sheltering and rehabilitation processes will be conducted.

Consequently, placing stray animals in shelters and keeping them there until they are adopted complies with the State’s positive obligations arising from the right to live in a healthy and balanced environment.

For these reasons, the Court has found the contested provisions constitutional, and accordingly, dismissed the request for their annulment.

B. Article 13 §§ 1 and 2 of Law no. 5199, added by Article 5 of Law no. 7527

1. Article 13 § 1 of Law no. 5199

The contested provision allows for euthanasia of dogs taken into shelters, provided the conditions laid down in the Veterinary Services, Plant Health, Food and Feed Law no. 5996 of 11 June 2010 are met.

The euthanasia of stray dogs, within the scope of the contested provision, must be considered in the light of the State’s duty to take the necessary measures to ensure the improvement of individuals’ corporeal and spiritual existence, as well as its positive obligations arising from the right to a healthy and balanced environment, as well as the right to the protection and improvement of corporeal and spiritual existence.

The positive obligations imposed on the State by the right to life and the right to protection of corporeal and spiritual existence, safeguarded by Article 17 of the Constitution, require the adoption of measures against risks that may be posed by dogs, including zoonotic diseases, which may threaten human health and physical integrity. Accordingly, in cases where the values relating to the protection of human health and physical integrity conflict with those concerning the protection of animals and the prevention of their suffering, the values relating to the protection of human health and physical integrity prevail. Therefore, where domestic stray animals pose a threat to these values, it is permissible to adopt measures aimed at eliminating such danger, including killing or reducing the number of animals through other methods.

Undoubtedly, the legislature enjoys a wide margin of appreciation in determining the scope of the means to be employed to eliminate threats to human health and physical integrity. The legislature’s preference in this regard is outside of the constitutionality review. Accordingly, within the scope of their duty to adopt protective measures required by the right to life and the right to protection and improvement of corporeal and spiritual existence, the legislature may, where other methods are deemed insufficient, make arrangements permitting killing under certain conditions.

The contested provision stipulates that euthanasia is to be applied only in exceptional circumstances and under specific conditions. In this regard, euthanasia is prescribed for stray dogs taken into shelters that pose a danger to the life and health of humans and animals, display uncontrollable negative behaviours, suffer from contagious or incurable diseases, or fall within categories prohibited from being adopted. Moreover, pursuant to Law no. 5996, referred to in the contested provision, euthanasia must be performed by a veterinarian or under a veterinarian’s supervision. Therefore, considering that Law no. 5996 provides safeguards ensuring humane treatment of animals and preventing pain or suffering during the euthanasia process, the administration cannot be said to have been granted an absolute and arbitrary discretionary power in implementing the killing measure.

For these reasons, the Court has found the contested provision constitutional, and accordingly, dismissed the request for its annulment.

2. Article 13 § 2 of Law no. 5199

The contested provision stipulates that local administrations are authorised to take the administrative measures required under the European Convention for the Protection of Pet Animals, approved by the Council of Ministers by Decision no. 2003/6168 of 28 August 2003, in relation to stray dogs within the scope of the tasks and procedures entrusted to them.

Local administrations exercise discretion in choosing, in the particular circumstances of the situation, the necessary/appropriate measures laid down in the aforementioned Convention, such as capture, keeping, identification, sterilisation, encouraging individuals who find stray animals to notify the competent authorities, or killing, for the purpose of controlling the number of stray dogs.

However, in applying measures within the scope of the contested provision, the authorities must take into consideration the current situation and particular circumstances, and must apply the least severe measure to reduce the number of animals. In other words, local administrations, while exercising their discretionary power regarding administrative measures, are obliged to choose the measure that will cause the least harm to the environment and to animals. In this sense, if the most severe measure, namely euthanasia, is resorted to even though it is inappropriate under the circumstances of the case, the persons concerned may incur criminal liability pursuant to Article 28/A (2) of the Law.

Furthermore, where euthanasia is necessary in the particular circumstances, the presence of safeguards preventing animals from being subjected to pain or suffering must also be assessed. In this regard, it is set forth in Article 11 of the said Convention that, except in cases where the assistance of a veterinarian or another competent person cannot be obtained quickly, or in other emergency situations provided for in national legislation for the purpose of relieving an animal’s suffering, a domestic animal may only be killed by a veterinarian or another competent person. Similar provisions are also contained in Law no. 5996.

Accordingly, allowing euthanasia/killing and other measures in the course of the acts and procedures carried out in relation to stray dogs within the scope of the administrative measures to be taken by local administrations under the Convention does not contradict the State’s obligations under the right to the protection and improvement of corporeal and spiritual existence or the right to live in a healthy and balanced environment.

For these reasons, the Court has found the contested provision constitutional, and accordingly, dismissed the request for its annulment.

C. Additional Article 1 § 3 of Law no. 5199, amended by Article 13 of Law no. 7527

The contested provision stipulates that mayors and municipal council members of metropolitan municipalities, provincial municipalities, and municipalities with a population exceeding twenty-five thousand, who fail to allocate the financial resources specified in Provisional Article 4 § 2 of the Law, as well as mayors and municipal officials who fail to spend such allocated resources for the purposes of establishing animal shelters, collecting stray animals, rehabilitating them, or caring for them until adoption, or who divert such resources for other purposes, shall be sentenced to imprisonment for a term of six months to two years.

Pursuant to Articles 17 and 56 of the Constitution, it is evident that the legislature has a margin of appreciation to prescribe the necessary measures and sanctions to ensure the protection of individuals’ corporeal and spiritual existence and to enable them to live in a healthy and balanced environment. Accordingly, the contested provision intends to maintain the measures adopted in accordance with the State’s positive obligations under the aforementioned rights and to secure their deterrent effect by imposing criminal sanctions for the acts contrary to such measures.

Considering that the contested provision clearly sets out the nature of the perpetrators, the specific acts and cases giving rise to criminal liability, as well as the type and severity of the punishment to be imposed, it does not contradict the principle of legality of crimes and punishments.

The allocation and proper use by local administrations of the financial resources afforded by the Law for the purpose of establishing animal shelters and for activities such as feeding, housing, and rehabilitation in these shelters is vital. In this regard, the provision stipulating the imprisonment of mayors, municipal council members and municipal officials, who fail to allocate the resources specified in Provisional Article 4 § 2 of the Law, who do not spend the allocated funds for their intended purpose, or who use such resources for other purposes, serves the aim pursued.

Moreover, the determination of the necessary measures for the protection of human life and physical integrity against risks posed by animals lies primarily with the legislature. Within this framework, the imposition of sanctions on public officials who fail to comply with their obligations to implement such measures likewise falls within the scope of the legislature’s discretion. Even in the absence of any actual harm resulting from a public official’s breach of his or her duties, it is nevertheless possible for the legislature to classify such acts as offences of endangerment. Indeed, the legislature enjoys a wide margin of appreciation in determining criminal policy. The Constitution cannot be interpreted as limiting the State’s punitive power exclusively to unlawful acts resulting in actual harm. Accordingly, there is no constitutional impediment to prescribing a term of imprisonment for acts which do not cause actual harm to human health or physical integrity but nonetheless pose a clear and imminent risk thereof. Thus, imposition of imprisonment sentence for the acts enumerated in the impugned provision is necessary for achieving the legitimate aim pursued.

In consideration of the fact that the potential perpetrators actively participate in the process of preparing and making expenditures within the municipal budget, which constitute the specified criminal acts, a reasonable balance has been struck between the aim pursued by the contested provision and the severity of the sentence prescribed. Thus, the provision complies with the principle of proportionality. Consequently, the contested provision, enacted within the legislature’s discretion, is not contrary to the principle of the rule of law, nor does it conflict with the principle of legality of crimes and punishments.

For these reasons, the Court has found the contested provision constitutional, and accordingly, dismissed the request for its annulment.