DECISION No.1 of 11 January 2012

Transcription

1 DECISION No.1 of 11 January 2012 on the objection of unconstitutionality of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme, as approved by Law no.227/2002 and, in particular, of Article I point 5 [concerning Article 4 paragraph (1)], point 6 [concerning 5 paragraphs (1) and (2)], point 8, point 9 [concerning Article 8 paragraph (3) subparagraphs a) to d)], point 14 [concerning Article 13 1 and 13 4 ], point 15 [concerning Article 14 paragraph (1) subparagraph b)] of the Law Published in the Official Gazette no.53 of 23 January 2012 On the grounds of the provisions of Article 146 subparagraph a) of the Constitution and Article 15 paragraph (1) of Law no.47/1992 on the organisation and functioning of the Constitutional Court, republished, on 25 November 2011, a group of 70 Deputies belonging to the Social Democratic Party Parliamentary Group and 54 Deputies belonging to the National Liberal Party Parliamentary Group asked the Constitutional Court to rule on the constitutionality of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme. The reference of unconstitutionality was registered with the Constitutional Court under no. 51/5.667 of 25 November 2011 and constitutes the subject matter of the File no.1.413a/2011. This reference act was signed by the following Deputies: Cristian Mihai Adomniţei, Marin Almăjanu, Teodor Atanasiu, Dan Bordeianu, Octavian Bot, Viorel-Vasile Buda, Daniel-Stamate Budurescu, Cristian Buican, Mihăiţă Calimente, Mircea Vasile Cazan, Mariana Câmpeanu, Daniel Chiţoiu, Tudor-Alexandru Chiuariu, Liviu-Bogdan Ciucă, Horia Cristian, Ciprian Minodor Dobre, Paul Victor Dobre, Mihai-Aurel Donţu, Gheorghe Dragomir, George Ionuţ Dumitrică, Relu Fenechiu, Damian Florea, Graţiela Leocadia Gavrilescu, Andrei Dominic Gerea, Alina-Ştefania Gorghiu, Florentin Gust Băloşin, Titi Holban, Pavel Horj, Nicolae Jolţa, Mihai Lupu, Dan-Ştefan Motreanu, Gheorghe-Eugen Nicolăescu, Ludovic Orban, Viorel Palaşcă, Ionel Palăr, Cornel Pieptea, Gabriel Plăiaşu, Cristina-Ancuţa Pocora, Virgil Pop, Octavian-Marius Popa, Călin Constantin Anton Popescu-Tăriceanu, Călin Potor, Ana Adriana Săftoiu, Nini Săpunaru, Adrian George Scutaru, Ionuţ-Marian Stroe, Radu Stroe, Gigel-Sorinel Ştirbu, Gheorghe-Mirel Taloş, Adriana Diana Tuşa, Radu Bogdan Ţîmpău, Ioan Ţintean, Florin Ţurcanu, Horea-Dorin Uioreanu, Mihai Alexandru Voicu, Gheorghe Ana, Gheorghe Antochi, Nicolae Bănicioiu, Eugen Bejinariu, Vasile Bleotu, Dumitru Boabeş, Doina Burcău, Ion Călin, Dumitru Chiriţă, Ioan Cindrea, Gheorghe Ciocan, Eugeniu Radu Coclici, Dorel Covaci, Victor Cristea, Ioan Damian, Andrei Dolineaschi, Sonia-Maria Drăghici, Cristian-Sorin Dumitrescu, Ion Dumitru, Mircea Duşa, Marian Ghiveciu, Horia Grama, Viorel Hrebenciuc, Iulian Iancu, Florin Iordache, Cornel Etu, Florina Ruxandra Jipa, Silvestru-Mircea Lup, Costică Macaleţi, Iulian Claudiu Manda, Manuela Mitrea, Vasile Mocanu, Ion Mocioalcă, Carmen Ileana Moldovan, Emil Radu Moldovan, Rodica Nassar, Adrian Năstase, Marian Neacşu, Cătălin-Ioan Nechifor, Dan Nica, Nicolae-Ciprian Nica, Laurenţiu Nistor, Constantin Niţă, Iuliu Nosa, Tudor Panţîru, Florin-Costin Pâslaru, Petre Petrescu, Victor-Viorel Ponta, Georgian Pop, Florian Popa, Vasile Popeangă, Dan-Mircea Popescu, Neculai Răţoi, Cristian Rizea, Sorin Ioan Roman, Lucreţia Roşea, Victor Socaciu, Ioan Stan, Ion Stan, Nicolae Stan, Anghel Stanciu, Sorin Constantin Stragea, Viorel Ştefan, Florin-Cristian Tătaru, Horia Teodorescu, Mihai Tudose, Aurelia Vasile, Gabriel Petru Vlase, Aurel Vlădoiu, Mădălin-Ştefan Voicu and Valeriu Ştefan Zgonea. As grounds for the objection of unconstitutionality, the authors brought arguments concerning both the extrinsic and the intrinsic unconstitutionality of the Law amending and

2 supplementing Government Emergency Ordinance no. 155/2001 concerning the approval of the stray dogs management programme, as follows: I. Concerning the extrinsic challenges of unconstitutionality, the authors of the objection consider that the impugned legal provisions infringe upon Article 61 paragraph (2) of the Constitution, because the decisional Chamber, respectively the Chamber of Deputies brought significant amendments to the wording of the law adopted by the Chamber of reflection, respectively the Senate. The authors alleged that, given these circumstances, in terms of lawmaking procedure, the principle of bicameralism, as outlined in the Constitutional Court s caselaw, was infringed upon. The authors also alleged that Government Emergency Ordinance no. 155/2011, amended and supplemented by the criticised law, infringes upon Article 115 paragraph (4) of the Constitution, because it is not based on a law for delegated powers, and management of stray dogs does not constitute an exception case. II. Concerning the intrinsic challenges of unconstitutionality, it is claimed that the criticised law is contrary to the rules of legislative technique, as it regulates the situation of dogs identified /with owner/holder and abandoned dogs, in spite of the fact that Law no. 205/2004 on animal protection comprises regulations in that respect, the latter incriminating, for example, dogs abandonment. It is argued that the provisions of "Articles 4, 5 and 7 of the law" providing for euthanasia of stray dogs violate the Universal Declaration of Animal Rights, "solemnly proclaimed in Paris on 15 October 1978 at the UNESCO headquarters", the European Convention for the Protection of Pet Animals, as well as Article 13 of the Treaty on the Functioning of the European Union. It is pointed out that the criticised law makes no reference to the "legislation of protection of animals", it does not include any principle of protection and assurance of animals rights, and the provisions of protection of their rights comprised in the criticised law are minimal. Euthanasia of stray dogs is contrary to human dignity as "euthanasia is a violent, traumatic measure, impeding the free development of human personality." Such a measure lacks proportionality in relation to the situation that caused it, because it removes their right to life; euthanasia should be regarded as an exceptional measure within certain disease control programmes, and the rule should consist in the reduction of the unplanned breeding of dogs, through their sterilization. Euthanasia is therefore individual, not collective, and communities cannot decide under any circumstance to euthanize dogs - especially since they will be tempted to opt for this measure ab initio. It is argued that the measure of euthanasia cannot depend on local communities decisionmaking power, whereas in Romania the law must be applied uniformly at national level. As a drawback of this measure it is given the example of stray dogs that migrate from the administrative - territorial unit where the measure of putting them down was implemented to neighbouring units that do not apply such measure. Likewise, mass euthanasia of stray dogs will endanger the very existence of the common breed and will produce predictable imbalances, which violates the people s right to a healthy ecologically balanced environment. The authors criticised the elimination from the initial legislative proposal of the regulations concerning the standards to be met by public shelters for stray dogs, as well as the failure to clearly and explicitly regulate the obligations of public authorities, the standards and the care conditions in public shelters. It was also argued that the application of the measure of euthanasia by a veterinarian contravenes Article 50 of the Veterinary Medical Ethics Code, which provides that the veterinarian should refrain from performing euthanasia of animals, except where such ends the suffering of an incurable patient. It was also argued that the breach of that obligation results in suspension of the exercise of the veterinary profession. It was pointed out that "Article 5 paragraph (1) of the Law" provides a very short period for potentially aggressive dogs euthanasia, a term which does not ensure the right of petition, free access to justice or the right to private property. The authors claimed that the owner of such a lost dog does not have sufficient time to recover it given the extremely short time in which it is going to be euthanized. It was argued that the provisions of "Article 8 paragraph (3) of the Law" provide unfair limitations of the right to private property as concerns the adopter of more than two dogs, as the

3 latter must meet certain conditions, such as evidence of a living space, flat owners' consent or payment of certain fees, unduly restricting his/her right to property, considered by the authors of the objection as an absolute right. Thus, the impugned law affects also the citizens private life. Likewise, it was argued that in order to encourage adoptions, none such fees should be paid. Moreover, according to the authors of the objection of unconstitutionality, "the owners of stray dogs are discriminated against owners of other species of stray animals", as the latter animals cannot be euthanized. It was argued that "Article 13 1 of the Law" infringes upon Article 44 of the Constitution, as one cannot be forbidden to raise/care or keep dogs in areas adjacent to public spaces. The authors claimed that "Article13 4 of the Law" is unconstitutional, as it provides for the sterilization of mix-breed dogs, with or without owner, which for the owner of a mix-breed dog is equal to the breach of his/her right to property. Likewise, civil sanctioning of the person who does not fulfil this obligation, provided by "Article 14 paragraph (1) subparagraph b) of the Law", infringes his/her right to private property. In accordance with Article 16 paragraph (2) of the Law no.47/1992 on the organisation and functioning of the Constitutional Court, the reference act was sent to the presidents of both Chambers of Parliament, as well as to the Government, in order to express their viewpoints. The President of the Senate sent to the Constitutional Court, through Letter no.1.830/12 December 2011, his viewpoint, whereby he asserted that the reference of unconstitutionality is unfounded. With respect to the extrinsic challenges of unconstitutionality, he stated that the criticised law complies with the constitutional requirements of the bicameralism principle, invoking in this respect the case-law of the Constitutional Court. At the same time, he stated that Article 115 paragraph (4) of the Constitution, invoked by the authors, has no relevance in the case, as the subject of the constitutionality review is the law for modification and not the law for approval of an emergency ordinance. On the merits of the exception of unconstitutionality, he states that the euthanasia of stray dogs should be provided in the text of the law, since the number of these animals is increasing, and other measures such as sterilization or keeping them in specially built shelters have had no result. He also stressed the fact that the measures provided in the impugned law constitute fair solutions for solving the problems created by stray dogs. The President of the Chamber of Deputies sent to the Constitutional Court, through Letter no.51/5.772 of 30 November 2011, her viewpoint, whereby she asserted that the reference of unconstitutionality is unfounded. Concerning the extrinsic challenges of unconstitutionality, the submission is that the debate in the decisional Chamber concerned the contents and the form of the law adopted in the Senate, the Chamber of refection, and was related to the matter considered by the initiator. It is considered that the decisional Chamber brought some improvements to the impugned law, and that the adopted wording is not in contradiction with the legislative initiative adopted by the Senate. Concerning the alleged violation of Article 115 paragraph (4) of the Constitution, it is pointed out that this constitutional text has no relevance in the case, because the subject of the constitutionality review is a law and not a simple ordinance or an emergency ordinance. Concerning the intrinsic challenges of unconstitutionality, it is claimed that the impugned legal texts provide, as a rule, the sheltering, adoption and sterilisation, with the release in public space of stray dogs, while euthanasia is only an exceptional measure. It is argued that the provisions of Article 1 paragraphs (1) and (5) and of Article 35 and Article 53 of the Constitution are irrelevant to the case, since, on the one hand, the ordinary courts are the ones competent to assess whether or not law has been broken, and the fair or unfair character of a measure does not amount to its unconstitutionality and, on the other hand, the authors did not give a statement of reasons with respect to the alleged infringement of Article 35, while Article 53 relates to people, not animals. It is also pointed out that reliance on Article 26, Article 44 and Article 136 paragraph (5) of the Constitution is not relevant, because the law refers to stray dogs and not to those that have an owner. Finally, it is asserted that the 3-day period set forth in Article I point 6 of the Law only applies once the 30-day period provided by Article I point 5 of the Law has expired, which means the

4 owner of a lost dog has sufficient time to recover it. Moreover, the law provides also a measure aimed to guarantee the recovery of the dogs by their owners, namely their registration in the Stray Dog Records, which permits the identification and recovery of the lost dog by its owner. The Government sent to the Constitutional Court, through Letter no.5/6.894/e.b. of 7 December 2011, its viewpoint, whereby it asserted that the reference of unconstitutionality is unfounded. Concerning the extrinsic challenges of unconstitutionality, it is asserted that both the wording of the normative act adopted by the Senate, as first notified Chamber, and that adopted by the Chamber of Deputies, as decisional Chamber, maintain the same object and purpose of the respective normative act, i.e. measures for the management of stray dogs situation. Therefore, the alleged violation of the bicameralism principle is unfounded. In the Government s opinion, Article 115 paragraph (4) has no relevance in this case, as this constitutional provision can be invoked within the a priori constitutional review only when a law for approval of an emergency ordinance is challenged. Concerning the intrinsic challenges of unconstitutionality, it is argued that the impugned law does not comprise regulations lacking clarity or precision and that it represents a concrete and efficient measure of implementation of the State s obligation to adopt measures aimed to ensure an ecologically balanced and healthy environment, and as a result the alleged infringement of Article 1 paragraph (5) and Article 35 paragraph (1) of the Constitution cannot be accepted. It is mentioned that the provisions of Articles 11 and 12 of the European Convention for the Protection of Pet Animals provide and permit in terminis their killing. Concerning the alleged infringement of the provisions of Article 13 of the Treaty on the Functioning of the European Union, it is argued that the Constitutional Court has no jurisdiction to verify compliance of national legislation with the acts of the European Union Finally, the Government states that the other constitutional provisions relied upon as grounds for the objection of unconstitutionality are either irrelevant in the case or they cannot be considered while carrying out the constitutional review, given the lack of a motivation supporting the alleged unconstitutionality of the impugned law. THE COURT, having examined the objection of unconstitutionality, the viewpoints of the president of the Senate, of the president of the Chamber of Deputies and of the Government, the filed documents, the report drawn up by the judge-rapporteur, the submitted evidence, the provisions of the impugned law, as against the provisions of the Constitution, as well as Law no. 47/1992, holds as follows: The Constitutional Court has been legally referred to and is competent, according to the provisions of Article 146 subparagraph a) of the Constitution, as well as of Article 1, Articles 10, 15 and 18 of Law no.47/1992, republished, to settle the reference of unconstitutionality. The subject matter of the constitutional review, as results from the letter of communication of the reference by the Secretary General of the Chamber of Deputies, are the provisions of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme. The Court finds that, in fact, according to the reference of unconstitutionality, the subject matter of the constitutional review are the provisions of Article I point 5 [concerning Article 4 paragraph (1)], point 6 [concerning 5 paragraphs (1) and (2)], point 8, point 9 [concerning Article 8 paragraph (3) subparagraphs a) to d)], point 14 [concerning Article 13 1 and 13 4 ], point 15 [concerning Article 14 paragraph (1) subparagraph b)] of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme, as well as of the law in its entirety. The impugned legal texts stipulate the following: - Article I point 5 concerning Article 4 paragraph (1): Stray dogs shall be sheltered in the stray dogs management services shelters, where they shall stay for 30 days, except for claimed ones. Population must be informed regularly about the existence of the shelter, the visiting program and the possibility of adoption."; - Article I point 6 concerning Article 5 paragraphs (1) and (2): "(1) After examination by a freelance veterinarian, organised under the terms of the law, stray dogs that are seriously, terminally or irretrievably ill, aggressive dogs, as defined in Article 2 paragraph (1) subparagraph

5 b) of Government Emergency Ordinance no.55/2002 on the rules governing possession of dangerous or aggressive dogs, approved by Law no.60/2003, dangerous dogs, dogs for fighting and assault, as defined in Article 1 subparagraphs a) and b) of the same emergency ordinance, let loose, abandoned or which carer cannot be identified shall be euthanized within 3 working days, in compliance with the veterinary legislation in force. (2) Euthanasia is a medical act consisting in painless inducement of a quick death of the dogs referred to in paragraph (1) or that have not been claimed or adopted under the conditions and terms established by this emergency ordinance." - Article I point 8: "(1) If, after expiry of the sheltering period provided for in Article 4, the dogs have not been claimed or adopted under the provisions of Annexes Nos. 4 and 5, they may be kept in shelters, returned to the territory, euthanized or the said measures can be combined, as decided by the local councils, respectively by the General Council of Bucharest Municipality, after consulting the population within the respective administrative-territorial jurisdiction. (2) For the time the dogs are kept in shelters their claiming shall be settled with priority. (3) Dogs unclaimed within seven days can be adopted by individuals and legal entities, as well as by adoption centres specially equipped and organized for this purpose, belonging to animal welfare organisations and foundations, in compliance with the provisions of Article 8 paragraph (3). (4) Dogs under the age of 5 months will remain in shelters until their claim / adoption, but no later than the age of 12 months." - Article I point 9 concerning Article 8 paragraph (3) subparagraphs a) to d): "(3) Adoption of shelter dogs shall be made in compliance with all the following conditions: a) submission by the adopter of evidence of living space showing appropriate raising and sheltering conditions for dogs; b) submission by the adopter of evidence that he/she has the material resources for dogs raising and caring; c) submission by the adopter of the consent of flat owners association or, as the case may be, of neighbours, should he/she adopt more than 2 dogs; d) payment of the fee provided under paragraph (2) [..]" - Article I point 14 concerning Article13 1 : "Raising and sheltering of dogs on public domain, in public areas or in adjacent areas, outside the property of the owner or carer thereof, shall be forbidden." - Article I point 14 concerning Article13 4 : "Sterilisation of mix-breed dogs and of their halfbreed, with or without owner, shall be compulsory, except for the special exemplars set forth in the methodological norms of application of the present emergency ordinance."; - Article I point 15 concerning Article 14 subparagraph b): (1) The following shall constitute civil offences and shall be sanctioned as follows: [...] b) breach of the provisions of Articles 1, 3, Article 4 paragraphs (1) to (3), Article 6 paragraph (1), Article 7 paragraphs (2) and (3), Article 8 paragraphs (1) and (4), Articles 13 3, 13 4, 13 6, 13 7 and 13 8, as well as of the conditions set out in the statement of commitments, except for abandonment, a fine of lei to lei [...]". The allegedly violated constitutional provisions are those of Article 1 paragraphs (1), (3) and (5) on the unitary state, human dignity, respectively the principle of observance of the Constitution and its supremacy, of Article 11 paragraph (1) on international law and domestic law, of Article 15 paragraph (1) on the universality of rights and freedoms, as well as of the obligations provided by law, of Article 16 paragraph (1) on equal rights, of Article 21 on the access to justice and the right to a fair trial, of Article 26 of the personal, family and private life, of Article 35 paragraph (1) on the right to a healthy environment, of Article 44 on the right to private property, of Article 51 on the right of petition, of Article 53 on the restriction of certain rights or freedoms, of Article 61 paragraph (2) on the role and structure of Parliament, of Article 115 paragraph (4) on legislative delegation, of Article 136 paragraph (5) on the inviolability of private property, of Article 148 paragraph (2) on application with priority of binding regulations adopted at EU level. Also, the authors allege that the impugned law also violates the provisions of Article 13 of the Treaty on the functioning of the European Union, published in the Official Journal of the European Union, series C No. 83 of 30 March 2010, provisions which refer to the fact that the Union and Member States

6 must take account of "the welfare requirements of animals as sentient beings" in the development and implementation of EU policy in agriculture, fisheries, transport, internal market, research and technological development and space; of the European Convention for the Protection of Pet Animals, signed in Strasbourg on 23 June 2003, ratified by Romania by Law no.60/2004, published in the Official Gazette, Part I, no.400 of 5 May 2004, as well as of the Universal Declaration of Animal Rights, adopted by the International League of Animal Rights and Affiliated National Leagues in London in September 1977 and publicly presented in Paris in Having examined the objection of unconstitutionality, the Court shall rule on the one hand, on some procedural issues pertaining to the extrinsic challenges of unconstitutionality, and on the other hand, on the intrinsic challenges of unconstitutionality of the law subject to review. However, before proceeding to the examination of the objection of unconstitutionality, the Court shall ascertain that the reference satisfies the requirements set forth in Article 146 paragraph a) of the Constitution in terms of holders of the right to referral, as the latter, as it results from the lists attached to the reference of unconstitutionality, was signed by a number of 126 Deputies (71 of the Social Democratic Party Parliamentary Group and 55 of the National Liberal Party Parliamentary Group). I. With regard to the extrinsic challenges of unconstitutionality, the Court held as follows: By Decision no.710 of 6 May 2009, published in the Official Gazette of Romania, Part I, no.358 of 28 May 2009, Decision no.413 of 14 April 2010, published in the Official Gazette, Part I, no.291 of 4 May 2010, or Decision no of 28 November 2011, published in the Official Gazette of Romania, Part I, no.905 of 20 December 2011, the Court has established two essential criteria to determine the cases where legislative procedure violates the principle of bicameralism. The cumulative essential criteria are the following: a) existence of major differences of legal content between the forms adopted by the two Chambers of Parliament; b) existence of a special configuration, significantly different, between the forms adopted by the two Chambers of Parliament; From the comparative analysis of documents relating to the initiation and holding of the legislative process in question, respectively of the bill submitted by the Government, of the wording adopted by the Senate, as first notified Chamber, and that adopted by the Chamber of Deputies, as decisional Chamber, the Court finds that the modifications made by the Chamber of Deputies to the wording adopted by the Senate are not likely to create major differences as to legal content in relation to the wording adopted by the Senate or a special configuration, significantly different from that of the bill in the wording adopted the Senate. Thus, the adopted law maintained the regulatory object of the original legislative proposal, bringing some minor corrections on the organisation and operation of specialised services for the management of stray dogs and on the manner of limitation of the phenomenon of stray dogs. The Court notes that acceptance of the thesis of the authors of the objection of unconstitutionality would amount to a diversion of the first notified Chamber s role as Chamber of reflection, respectively the Senate s, meaning that it would be the Chamber that would definitively establish the content of the bill or the legislative proposal (and practically the normative content of the future law), which has the consequence that the second Chamber, the decisional Chamber will not be able to amend or supplement the law adopted by the Chamber of reflection, but only to approve it or reject it. It is undeniable that the principle of bicameralism involves both the cooperation of the two Chambers in the law-making process, as well as their obligation to express through vote their position as to the adoption of laws; therefore depriving the decisional Chamber of its power to modify or supplement the law as adopted by the Chamber of reflection, thus contributing to the law-making process, would amount to limiting its constitutional role and providing a leading role to the Chamber of reflection in relation to the decisional Chamber in lawmaking process. In such a situation, the Chamber of reflection would eliminate the decisional Chamber s possibility to cooperate in drafting normative acts, the latter being only able to express by vote its position on the legislative proposal or the bill already adopted by the Chamber of reflection, which is inconceivable. Accordingly, the Court notes that Article 75 paragraph (3) of the Constitution, when using the phrase "whose decision shall be final" with respect to the decisional Chamber, does not exclude,

7 but rather assumes that the bill or legislative proposal adopted by the Chamber of reflection be debated in the decisional Chamber, where it can be subject to changes and additions. In this case, the decisional Chamber can not substantially alter the regulatory object of the legislative initiative, therefore it cannot divert it from its purpose. As concerns the alleged violation of Article 115 paragraph (4) of the Constitution, the Court notes that this constitutional text has no relevance in this case, because, in the present case, the subject of the constitutional review are the provisions of a law amending and supplementing Government Emergency Ordinance no.155/2001, published in the Official Gazette of Romania, Part I, no.794 of 13 December 2001, approved with modifications and supplementations by Law no.227/2002, published in the Official Gazette of Romania, Part I, no.289 of 29 April Consequently, the subject of the constitutional review is not the basic act, which is amended and supplemented, but only the act amending the same. In the a priori constitutional review, the solution contained in the ordinance as approved can be challenged both extrinsically and intrinsically only in case of laws for approval of ordinances, because "government ordinances approved through a law by Parliament, in accordance with the provisions of Article 115 paragraph (7) of the Constitution, cease to be independent normative acts and become, as a result of approval by the legislative, normative acts having force of law, even if, for reasons of legislative technique, along with data of the law for approval, they preserve also identifiers assigned upon their adoption by the Government" (see, in this respect, Decision no.95 of 8 February 2006, published in the Official Gazette, Part I, no.177 of 23 February 2006). The Court notes that within the scope of the Constitutional Court s power referred to in Article 146 subparagraph a) first sentence of the Constitution, only by way of constitutional review of the law for approval of government ordinance can be brought into question extrinsic challenges of constitutionality concerning the modality of adoption of the ordinance, so only on its conversion into law, under formal aspect, and this means that within the a priori constitutional review of the law amending or supplementing an ordinance cannot be formulated challenges of extrinsic unconstitutionality which concern the modality of adoption of the ordinance. The Court also notes that the adoption of emergency ordinances is not conditional on the existence of a law for delegated powers, a requirement provided in the Constitution only for simple ordinances; thus, the delegated legislator is competent to adopt emergency ordinances meeting the conditions set out in Article 115 paragraph (4) of the Constitution (see, in this sense, for example, Decision no of 14 October 2010, published in the Official Gazette, Part I, no.786 of 24 November 2010). II. With regard to the intrinsic challenges of unconstitutionality, the Court notes the following: 1. The allegation that adoption of this law leads to a legislative parallelism, in the sense that several normative acts were adopted with a view to regulate issues related to canine population, respectively Law no.205/2004 on animal protection, published in the Official Gazette of Romania, Part I, no.531 of 14 June 2004, and Government Emergency Ordinance no.155/2001, approved with amendments and completions by Law no.227/2002, as amended and supplemented by the law challenged in this case, is unfounded. In fact, it results that under Article 1 paragraph (2) of Law no.205/2004 "stray dog population management on the Romanian territory shall be regulated by special law," which means that the Government Emergency Ordinance no.155/2001, approved with amendments by Law no.227/2002, as amended and supplemented by the law impugned in the present case is a special regulation in relation to the general common regulation in the matter, respectively Law no. 205/2004. The latter will find its application only to the extent that the special law does not contain derogatory specific provisions. The Court also holds that the Government Emergency Ordinance no.55/2002 on the rules governing the possession of dangerous or aggressive dogs, published in the Official Gazette, Part I, No. 311 of 10 May 2002, sets forth also measures concerning the canine population, being a special law on the rules of possession thereof in relation to that applicable to other animals (see, in this respect, Article 3 and the following of Law no.205/2004). Given the regulatory scope of the Government Emergency Ordinance no.155/2001 and Government Emergency Ordinance no.55/2002, the legislator, by the impugned law, should have brought into accord also the provisions of Article 11 of the Government Emergency Ordinance no.55/2002, found to be

8 unconstitutional by Decision no.903 of 6 July 2010, published in the Official Gazette, Part I, no.584 of 17 August 2010, with the provisions of the Constitution. 2. In regard to the euthanasia of aggressive and dangerous stray dogs under the terms of Article I point 6 of the impugned law, the Court finds that such measure is necessary, as they are in a factual situation different from other breeds of dogs, which also determined the adoption, in fact, of a special regulation governing the rules on their possession, respectively Government Emergency Ordinance no.55/2002 on the rules governing the possession of dangerous or aggressive dogs. The authors allegation that the 3 working days time limit for euthanizing aggressive and dangerous stray dogs is too short, because the owner of the lost dog would not have sufficient time to find it, is unfounded. According to Article 4 paragraph (1) subparagraph a) of Government Emergency Ordinance no.55/2002, each dangerous dog has an identification number, tattoo or microchip affixed, and is registered with the Romanian Kennel Club or the police, and each aggressive dog is registered with the Romanian Kennel Club. Furthermore, Article point 14 of the impugned law concerning Article 13 5 provides the setting up of the Stray Dogs Record, managed by the College of Veterinarians. This Record will keep the evidence of all stray dogs, microchips for identification of dogs will be implanted, so in case of loss of an aggressive dog its owner can be easily identified. 3. With regard to the challenge of unconstitutionality concerning the right of public authorities to put down stray dogs, the Court notes that the text of Article I point 8 of the Law does not meet the foreseeability requirements set forth in Article 1 paragraph (5) of the Constitution. The Court held that the text of Article I point 8 of the Law establishes the proposed solutions related to the public authorities obligation to manage the problem of stray dogs without specifying the order in which such should be applied, so that public authorities called to apply the criticised law will have to randomly choose one or more solutions. However, the solutions proposed by a normative act can not be applied randomly, the legislator being required to establish conditions, procedures, as well as clear and objective criteria for application thereof. Thus, in relation to the impugned law, the Court notes that the legislator should establish a priority order of these solutions and the solution of euthanasia of stray dogs should be applied only as a last resort, i.e. only when all other solutions have been applied properly by the local authorities, but they have not reached the purpose of limiting or eradicating this phenomenon (on the importance of regulating the order of application of certain legislative measures, see Decision no.536 of 28 April 2011, published in Official Gazette of Romania, Part I, no.482 of 7 July 2011). The Court notes that adoption of concrete measures to control the stray dog phenomenon is related to the State s margin of appreciation, so that the legislator is the one required to establish specific regulatory requirements under which stray dogs phenomenon must be controlled. In this respect the legislature is obliged, as a constitutional requirement, to involve and empower local authorities, including through civil or criminal sanctions, to avoid the use of euthanasia measure. Likewise, the Court also notes that by the Judgement of 26 July 2011, delivered in the Case of Georgel and Georgeta Stoicescu v. Romania, paragraph 58, the European Court of Human Rights stated that responsibility for the general situation of stray dogs does not lie only with local or central public authorities, but also lies with civil society, which in the domestic legal system amounts to an obligation for the associations involved in animal protection to make an effective contribution, including material, and not only declarative, in applying solutions aimed to control this phenomenon. It can thus be avoided the measure of euthanasia of stray dogs. The Court finds that, in principle, any normative act must meet certain quality requirements, among which foreseeability, which means that it must be sufficiently precise and clear to be applied, so the formulation with sufficient precision of the normative act enables the interested persons - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Of course, it may be difficult to draw up laws of a total precision and a certain flexibility may even prove to be desirable, but a flexibility which does not affect the foreseeability of the law (see, in this respect, the Constitutional Court Decision no.903 of 6 July 2010 and the Constitutional Court Decision no.743 of 2 June 2011, published in the Official Gazette of Romania, Part I, no.579 of 16 August 2011, as well as the case-law of the European Court of Human Rights of which relevant are, for example, the following judgements: Judgement of 15 November 1996 in the Case of Cantoni v. France, paragraph 29, Judgement of 25 November 1996 in the Case of Wingrove v. the United Kingdom,

9 paragraph 40, Judgement of 4 May 2000 in the Case of Rotaru v. Romania, paragraph 55, Judgement of 9 November 2006 in the Case of Leempoel & SA ED. Cine Revue v. Belgium, paragraph 59). However, the text of Article I point 8 of the law, as shown before, lacks clarity and precision, so that the Court finds that the impugned law is obviously lacking foreseeability, which is contrary to the provisions of Article 1 paragraph (5) of the Constitution. Likewise, the Court finds that as a result of the use of an inadequate legal technique the legislator eventually undermined human dignity, a supreme value enshrined under Article 1 paragraph (3) of the Constitution. Human dignity, as from the constitutional aspect, involves two inherent dimensions, namely relations between people, which concerns people's right and obligation to have their rights and freedoms respected and, accordingly, to respect fundamental rights and freedoms of their peers (see, in this respect, also Decision no. 62 of 18 January 2007, published in the Official Gazette, Part I, no. 104 of 12 February 2007), as well as humans relationship with the environment, including the animal world, which involves, as concerns the animals, man's moral responsibility to care for these creatures in such a way to illustrate the attained level of civilization. Therefore, the Court does not declare the unconstitutionality of any of the provisions comprised in the impugned law concerning the control over the stray dogs phenomena, but it only sanctions the lack of foreseeability of the law determined by the inexistence of an order of application thereof order which, essentially, should enshrine the solution of euthanasia only in the last resort and of a clear and precise procedures which public authorities should respect in applying the proposed solutions. Concerning the allegation made by the authors of the objection the unconstitutionality in the sense that "owners of stray dogs are discriminated against owners of other species of stray animals'', as these latter animals cannot not euthanized, the Court finds that it is meaningless, cause since the animals are strays, they do not have "owners". 4. Concerning the conditions that the adopter must meet in view of adopting a stray dog [Article I point 9 of the impugned law concerning Article 8 paragraph (3)], the Court finds that the legislator is the only one competent to establish such conditions based on Article 61 paragraph (1) of the Constitution. The authors of the objection challenge the fact that persons adopting more than 2 dogs need to have the flat owners association or neighbours consent, as the case may be, without considering the discomfort or threat that a large canine population could bring to the right to private life of the neighbours of the person adopting dogs. So, a person's legal right to adopt dogs cannot affect the other persons constitutional right to private life. Likewise, as concerns the obligation to bring evidence on the living space and to pay a specifically regulated fee, the Court finds that these measures, on the one hand, ensure the State authority that these adopted dogs will not be returned again by the adopter to the public domain, and, on the other hand, they give the adopter a joint interest in insuring dog s health by paying fees representing medical and caring expenses which the State authority has incurred with respect to that dog. Therefore, it cannot be argued that these conditions set by the impugned law violate the family life or private life of the adopter; the State acknowledges the legal right of a person to adopt dogs, but in compliance with legal standards that would not hinder other citizens or ever frustrate State policy with respect to the control over the stray dogs. 5. Concerning the prohibition to raise and shelter dogs in areas adjacent to public domain or public spaces under the terms of Article l point 14 of the impugned Law concerning Article 13 1, the Court notes that such regulation concerns the condominiums regulated by Article 2 subparagraph i) of Housing Law no.114/1996, republished in the Official Gazette of Romania, Part I, no.393 of 31 December The land adjacent to the building cannot constitute space for dogs raising and sheltering, as it is not a proper place for such activity, affecting third persons right to family and private life. As noted above, a legal right cannot infringe upon a constitutionally guaranteed right. 6. Concerning Article I point14 of the impugned Law concerning Article 13 4, the Court finds that this legal text concerns only the hypothesis of stray dogs and of those dogs that do have an owner but are not permanently under his/her surveillance and are found on public domain, in public spaces or in areas adjacent thereof. Consequently, it cannot be claimed that the provisions of Article I point 14 [concerning Article 13 5 ] and point 15 [concerning Article 14 paragraph (1) subparagraph b)] of the law would affect the dog owner's right to property.

10 7. Likewise, the Court notes that the provisions of the European Convention for the Protection of Pet Animals regulates under Article 12 the reduction of the numbers of stray animals, specifically providing that when a Party considers that the numbers of stray animals present it with a problem, it shall take the appropriate legislative and/or administrative measures necessary to reduce their numbers in a way which does not cause avoidable pain, suffering or distress. a) Such measures shall include the requirements that: (i) if such animals are to be captured, this is done with the minimum of physical and mental suffering appropriate to the animal; (ii) whether captured animals are kept or killed, this is done in accordance with the principles laid down in this Convention. The Court also finds that the provisions of Article 13 of the Treaty on the Functioning of the European Union are not relevant in this case, as they relate to another object of regulation, namely that upon development and implementation of EU policy on agriculture, fisheries, transport, internal market, research and technological development and space consideration be given to "the welfare requirements of animals as sentient beings". The Universal Declaration of Animal Rights, adopted by the International League for Animal Rights and Affiliated National Leagues in London in September 1977 and presented in Paris in 1978, has no relevance within this review of constitutionality, as it is not an international treaty for the purposes of Article 11 of the Constitution. At the same time, the Court holds that also the laws of other States attach great attention to the canine population, but their solutions on putting them down are individual, not collective [see Dogs Act (1905) and Environmental Protection Act (1990) in the UK or the Portuguese Law of 1995 on animal protection]. 8. The Court finds that there is no discrepancy between the impugned Law and the Veterinary Medical Ethics Code adopted by the Veterinarians College and published in the Official Gazette, Part I, no.147 of 1 March 2011, as the code applies under the terms of the law. The modification of the law leads to the default modification of the mentioned code. Finally, as concerns the elimination in the decisional Chamber of certain provisions included in the original legislative proposal, the Court notes that the constitutional court can only consider the law as adopted and it can not pronounce itself on the provisions that are not comprised in the text of the law. Likewise, the Court, by Decision no. 42 of 8 July 1993, published in the Official Gazette, Part I, no.175 of 23 July 1993, stated that "it is not competent to review the constitutionality of texts of bills, legislative proposals and amendments submitted to Parliament but not yet adopted it." For the reasons set forth herein, on the grounds of Article 146 subparagraph a) and of Article 147 paragraph (4) of the Constitution, as well as of Article 11 paragraph (1) subparagraph A.a), Article 15 paragraph (1) and Article 18 paragraph (2) of Law no. 47/1992, by majority vote with respect to Article I point 8 of the law, THE CONSTITUTIONAL COURT In the name of the law DECIDES: Allows, in part, this objection of unconstitutionality and finds that the provisions of Article I point 8 of the Law amending and supplementing Government Emergency Ordinance no.155/2001 concerning the approval of the stray dogs management programme, as approved by Law no.227/2002, are unconstitutional. Final and generally binding. This decision shall be communicated to the President of Romania and shall be published in the Official Gazette of Romania, Part I. The proceedings took place on 11 January 2012 and were attended by: Augustin Zegrean, President, Aspazia Cojocaru, Acsinte Gaspar, Petre Lăzăroiu, Mircea Ştefan Minea, Iulia Antoanella Motoc, Ion Predescu, Puskás Valentin Zoltán and Tudorel Toader, Judges.