All of us who have a pet have probably had one or more similar experiences at some point in time. It is the weekend and you decide to catch up on some sleep. However, your pet begs to differ. My cat for example will come and sit on top of me, rub her head, knead, and purr to get me to get up and feed her. So far, so good. If I give in and get up, she will be happy. If I decide to turn around one more time, no harm done. But what if my cat instead decided that my decision not to get up to feed her constitutes “cruel and unusual punishment?” (You might have seen the way cats look at you accusingly when you don’t do what they want…). And then retained a lawyer and sued me? Sounds crazy?
Well maybe not so crazy after all. Lately, there have been a lot of news stories about “animal standing.” In Oregon for example, a horse sued its owner for damages for pain and suffering and sought $100,000 for veterinary care (the horse, however, was oblivious that it was the litigant in such a case). And don’t we all remember the monkey who asserted copyright in his selfie with the help of PETA? More and more we hear about animal rights lawyers trying to sue on behalf of animal plaintiffs as a novel way to enforce animal rights laws.
Whereas activists in the United States and in other countries are trying to gradually move the courts towards granting animals standing and more rights, Switzerland, which used to be a forerunner in this area, is moving the opposite way. In 1992, the canton of Zurich, Switzerland, introduced the position of “attorney for animal protection in criminal matters” (animal lawyer), who had standing to sue on behalf of animals during any criminal proceeding in which animals were judged to be the “victim.” (Cantonal Animal Protection Act, §17). In 2010, the Swiss people voted on a popular initiative that would have obligated all Swiss cantons to have such an animal lawyer in criminal proceedings to represent the interests of the abused animals. However, 70.5% of the voters rejected the popular initiative. In the canton of Zurich, 63.5% voted against it. In the aftermath of the 2010 Federal popular initiative, the cantonal parliament of Zurich decided to abolish the position of animal lawyer.
Animals under Swiss Law
1. Human beings and their environment shall be protected against the misuse of gene technology.
2. The Confederation shall legislate on the use of reproductive and genetic material from animals, plants and other organisms. In doing so, it shall take account of the dignity of living beings as well as the safety of human beings, animals and the environment, and shall protect the genetic diversity of animal and plant species. (Emphasis by author.)
Furthermore, article 80 of the Constitution states that
1. The Confederation shall legislate on the protection of animals.
2. It shall in particular regulate:
a. the keeping and care of animals;
b. experiments on animals and procedures carried out on living animals;
c. the use of animals;
d. the import of animals and animal products;
e. the trade in animals and the transport of animals;
f. the killing of animals.
3. The enforcement of the regulations is the responsibility of the Cantons, except
where the law reserves this to the Confederation.
On the basis of article 80 of the Constitution, Switzerland enacted the Federal Animal Protection Act (TSchG) and the Federal Animal Protection Ordinance (TSchV), among other laws. The aim of the Animal Protection Act is to “protect the dignity and the well-being of the animal.” (Animal Protection Act, art. 1, translation by author). “Animal dignity” is defined as “the inherent worth of the animal, which must be respected when handling it”. (Id. art. 3, lit. a, translation by author). Furthermore, in 2003, the Swiss Civil Code was amended to reflect that animals were no longer considered objects. It should be noted, however, that the law does not define what exact legal status they have. Article 641a of the Swiss Civil Code provides that
1. Animals are not objects.
2. Where there exist no special regulations for animals, the provisions for objects apply.
Animal Dignity under Swiss Law
Among these many protections, I would like to highlight a few Swiss law provisions that implement the principle of “animal dignity.”
The Animal Protection Ordinance for example provides that all animals must be provided with food and water on a regular and sufficient basis. (Animal Protection Ordinance, art. 4, translation by author). (My cat sure would love that one!).
Article 13 states that “social animals must be allowed to have social contacts with animals of the same species.” Such animals are, among others, parrots, goldfish, and guinea pigs who may only be kept in pairs of two or more. Single cats must have daily contact with humans or at least visual contact with other cats. (Id. art. 80). Likewise, dogs must have contact with humans and, as far as possible, with other dogs on a daily basis. (Id. art. 70).
Just recently in February 2018, the Animal Protection Ordinance was amended and now prohibits throwing live lobsters into cooking water. The amendment added crustaceans such as lobsters to the list of animals that have to be rendered unconscious before they can be killed (Id. art. 178), because they can “feel suffering and are sentient beings.” (Translation by author).
Overall, it is safe to say that Switzerland is a great place to be a pet.
If you would like to learn more about animal rights in general or in Switzerland, please consult one of the many resources available at the Law Library of Congress or online. A sample selection can be found below:
- Swiss Federal Council. Federal Food Safety and Veterinary Office, Animal Welfare (last updated Feb. 28, 2018).
- Thomas G. Kelch, Globalization and animal law: comparative law, international law and international trade (2nd ed., 2017).
- Gieri Bolliger, Animal dignity protection in Swiss law : status quo and future perspectives (2016).
- Deborah Cao, Animal law and welfare – international perspectives (2016).
- Laws on leg-hold animal traps around the world (The Law Library of Congress, Global Legal Research Center eds, 2016).
- Würde der Kreatur: ethische und rechtliche Beiträge zu einem umstrittenen Konzept (Christoph Ammann et al. eds., 2015).
- Robert Brammer, An Introduction to Animal Law, In Custodia Legis (July 25, 2014).
- Gieri Bolliger & Antoine F. Goetschel. Die Wahrnehmung tierlicher Interessen im Straf- und Verwaltungsverfahren: (unter besonderer Berücksichtigung der Situation des Tierschutzrechtsvollzugs im Kanton Zürich) (2011).
- Rita Sandra Jedelhauser, Das Tier unter dem Schutz des Rechts : die tierethischen Grundlagen eines rechtlichen Schutzmodells für das tierschutzrechtliche Verwaltungshandeln (2011).
- Eveline Schneider Kayasseh, Haftung bei Verletzung oder Tötung eines Tieres – unter besonderer Berücksichtigung des schweizerischen und U.S.-amerikanischen Rechts (2009).