DISCREPANCIES BETWEEN RULES FOR CAT AND DOG OWNERS AND RELEVANT LEGISLATION
Many pet owners have issues as pertaining to rules applied to cat and dog owners. Namely, the rules contain a multitude of provisions that lead to questions and dissenting opinions. Provisions of such rules that constitute the foremost cause of concern include articles which regulate the number of animals in one family, demand permission from other residents if a pet is kept in an apartment building, prohibit feeding of stray animals, and permit the killing of strays. The objective of this informative publication is to explain which provisions constitute the most widely used articles that are in fact contrary to the law, and to provide guidance as to what action to take if a pet owner is fined or warned based on said provisions.
The Estonian Union for the Protection of Animals has dealt with this issue the longest and the Union’s lawyers claim that topics related to rules applied to cat and dog owners by local governments are of exceedingly acute nature indeed. The foremost issue lies in the contrary nature of such rules to the law and even the Constitution itself. The Union believes that enforcement of said peculiar, drastic, and unclear norms which are contrary to valid laws constitutes an attempt by local governments to solve issues related to stray animals. Such actions in laying down norms are not legitimate and are not permissible upon performing the authority of the state.
PROHIBITION ON FEEDING STRAY ANIMALS
A number of local governments have prohibited in their rules applied to cat and dog owners the feeding of stray animals, and have indeed set out to punish individuals based on this prohibition. It is important to note at this point that the prohibition on feeding stray animals is contrary to the Constitution and the Chancellor of Justice as well has voiced his opinion in this respect (the Chancellor of Justice also instituted supervision proceedings as pertaining to the local governments that did implement said prohibition on feeding of strays). One does not have to adhere to provisions of any rules that are contrary to the law.
Some local governments are of the opinion that the person that feeds an animal becomes the owner of the fed animal by way of the act of feeding the animal, and that such feeding worsens the situation of the stray animal as the person feeding the animal is not adhering to all requirements imposed on pet owners, merely providing food for the animal and consequently making it more difficult to catch said animal. The Union hereby explains that one does not become an animal’s owner simply by feeding the animal. Becoming an owner requires actual volition of the person to become the owner, to take care of the animal, and to act in relation to the animal in a manner appropriate to a pet owner. Many individuals that feed strays do not actually possess the means and opportunity to keep the animals and, consequently, are trying to better the animal’s situation to the best of their capability. On account of this, such individuals should not be blamed if they do not commence to take care of the animal as an owner. The Union is of the opinion that feeding of strays in no way worsens the stray animals’ situation. The argument related to catching of the animals also does not prove appropriate justification to enforcing the relevant prohibition. To catch stray animals, the local government could always cooperate with persons feeding the strays. The inability of the local government to resolve the issue in a manner provided for by law does not justify the application of such an extreme measure (prohibition on feeding stays). If an animal is not fed, they may become even more estranged from people. Feeding of stray animals maintains at least some contact between the animals and people.
Everyone should be aware of the fact that if a stray is found, the animal should immediately be reported to the local government to enable the stray animal to be returned to its owner as soon as possible or to be taken to a shelter if required. Namely, the local government is obligated by law to arrange for catching of stray animals, taking them to a shelter, and identifying their owner or finding a new owner for them. Consequently, all stray animals should be reporter to the local government. Regrettably, the Union’s experience indicates that a large proportion of local governments in Estonia have been unable to ensure performance of their said obligation, deriving from the law, to make arrangements as pertaining to stray animals and, oftentimes, local governments provide no response to a report of a stray animal or even refuse to tackle the matter at all. If, regardless of immediate notification, the local government refuses to handle a stray, do not hesitate to contacts the Estonian Union for the Protection of Animals – the Union is ready to communicate with the local government so as to contribute to a faster solution to the problem. The Union hereby stresses the fact that a stray animal should be reporter to the local government and, if possible, to a shelter immediately after such an animal is discovered.
RESTRICTIONS ON THE NUMBER OF PETS KEPT IN AN APARTMENT BUILDING
Oftentimes, local governments lay down provisions in their rules, restricting the number of pets kept in an apartment or requiring permission of other residents in an apartment building for keeping a pet in one’s apartment.
The Union explains that the right to own an animal constitutes a constitutional right of every individual and one is not obligated to ask for permission from other residents in an apartment building to do so. Restricting the number of animals kept in one family is also contrary to the Constitution. Relevant provisions are also contradictory to legislation pertaining to ownership.
Pet owners should, nevertheless, adhere to the Republic of Estonia Animal Protection Act and legislation laid down based thereon, prescribing requirements in terms of feeding and providing water, freedom of movement, space, medical treatment etc. The rights of a pet owner’s neighbors must be considered as well, ensuring that the concurrent negative effects (e.g. dog barking, howling) would not be excessively disturbing and would not significantly damage the neighbors’ rights in using their property. Consequently, taking a pet, one must always make sure that applicable requirements are not violated and wellbeing for the animal is ensured, thereat considering the rights of the neighbors. The Union hereby directs attention to the fact that a pet owner may be held liable for an offence if they violate rules for keeping of pets and/or significantly disturb their neighbors.
The Union hereby considers it necessary to explain that above restrictions (restrictions on the number of pets, requirement for neighbor approval) have been laid down in the rules of procedure of a number of apartment buildings. Nevertheless, the rules of procedure applicable to apartment owners as well must be in adherence to the law and constitutional rights may not be violated. Disputes pertaining to administration and use of apartment ownerships generally constitute civil disputes that would be resolved in a court of law. However, in such an event, the party that recourses to the courts should be the apartment association and not the apartment owner that is not adhering to such provisions which are contrary to the law. The Union hereby emphasizes that apartment owners must maintain the physical share of their apartment ownership in good order and in using said physical share and the object of relevant common ownership refrain from actions, the effect of which on other apartment owners exceeds the effects arising from normal use of ownership (owners must clean up after their pets and the keeping of pets must not significantly disturb the peace of others).
REGULATION PROVIDED FOR IN RULES PERTAINING TO ANIMAL KILLINGS
A number of relevant rules provide that a stray or dangerous animal may be killed on site. However, these provisions are contrary to the Republic of Estonia Animal Protection Act.
Namely, the Animal Protection Act regulates animal killing. Permitted killing of an animal means the following:
1) slaughter or killing of a farm animal;
2) killing of day-old chicks and embryos in hatchery waste;
3) emergency slaughter of a farm animal;
4) killing of an animal in a helpless state;
5) slaughter of an animal for religious purposes;
6) animal euthanasia;
7) killing of caught fish;
8) hunting of game;
9) extermination of invertebrates, moles and rodents for the purpose of protection of property or health;
10) diagnostic slaughter of animals and killing animals in order to control the spreading of an infectious animal disease as prescribed by the Infectious Animal Disease Control Act;
11) killing of an animal for self-protection, whereat an animal may be killed in self-defense where an attack by the animal endangers human life or health and the attack cannot be prevented or repelled in any other manner.
Furthermore, the Animal Protection Act does not permit immediate killing of stray animals. Killing is possible only if prerequisites provided for by law (the animal has been in a shelter for at least 14 days as from publication of a description of the animal and the animal’s owner has not been found) are present.
In the Union’s assessment local governments have neither the need nor the right to additionally regulate in their rules the topic of permitted killing of animals or to lay down corresponding requirements (overregulation) – relevant regulation has already been provided for in the Animal Protection Act. Provisions of relevant rules may not be contrary to the law and the local government does not have the right to overstep the boundaries of its competence and authority in laying down such rules.
Pursuant to the law, the local government has the right and it is within the local government’s competence to regulate issues related to keeping of cats and dogs. Regulation of the admissibility of killing of an animal can only fall within the competence of the legislator. Furthermore, killing of an animal is deemed to constitute an offence as per the requirements provided for in the Animal protection Act; issues related to animals relate to the right of ownership and protection of property, on account of which, in addition to not having the relevant right, it is especially dangerous for local governments to encourage people to execute animals by laying down an improper norm.
COURSE OF ACTION IF YOU HAVE BEEN PUNISHED BASED ON INVALID LEGISLATION
If a local government or the police has issued an official report, fined you, or applied other coercive measures based on unlawful rules, the aforementioned should most certainly be disputed. You should adhere to legal terms for submission of an objection or contestation of a fine and keep all existing related documents at hand. Lawyers with the Estonian Union for the Protection of Animals can assist you in such objections if required.
We consider it necessary to add by way of additional information that the Chancellor of Justice instituted proceedings to verify adherence to the Constitution of the provision delegating authority provided for in § 22 (1) 36²) of the Republic of Estonia Local Government Organisation Act (which grants into the competence of a municipal council the establishment of rules for keeping cats and dogs) and § 66³ of the same Act (which prescribed liability for violation of rules for keeping cats and dogs) and found that above norms are contrary to the Constitution as the legislator has not provided for an explicit objective, content, and extent as pertaining to the council of relevant local government unit. In the assessment of the Chancellor of Justice, also questionable is the necessity of said provision delegating authority.
In the Union’s assessment, requirements concerning the objective of prescribing rules (ensuring of the safety of people or of the upkeep of the city/town) must be laid down in national legislation. On December 14, 2010 the Chancellor of Justice sent to the Regional Minister and the Ministry of the Interior a memorandum containing the proposal to develop within three months as from receipt of the memorandum a draft to eliminate the discrepancy between relevant provisions of the Local Government Organisation Act and the Constitution. The Union does not possess information as to the development of said draft legislation.
Source: Home page of the EUPA