Dieren in het geding : een juridisch-historische analyse van het verbod op dierenmishandeling

Abstract

In 1886 the Criminal Code first came into effect. It stipulated, in article 254, that maltreatment of an animal was a crime. Sanctions could be imprisonment for a period of up to three months, or a fine of 120 guilders at most. Maltreatment was not defined. The basic principle underlying the penal provisions was not the protection of the interests of the animal itself. A generally acceptable justification for punishment was found in the infringement on the subjective rights of citizens. It was held that maltreatment of animals offended public morals and the decency of man. This did not change when in 1961 the protection of animals was partly transferred to the Animal Protection Act. Although a different view had been voiced, until the 1980s human-animal relationships as reflected in the law could better be described as inter human affairs. In 1981 government responded to the outcries of concern from animal protection organizations. From now on animal health and welfare would have to be protected for the sake of the individual animal itself. Parliament approved of this idea, and since 1981 the principle has also been established in our system of law. The practical consequences of the introduction of this fundamental notion have been debated in the Netherlands ever since. The discussion seems to have reached no consensus so far. In 1992 the new Animal Health and welfare Act was introduced, which referred only vaguely to welfare. (Staatsblad 1992, 585). According to its preamble the AHWA is given with a view to the health and the welfare of animals, because of ethical considerations, but no explanation of the ethical borders neither of the concept welfare is given . My research proves that considering the verdicts of the judges in the Dutch courts, it appears that judges have problems with interpretation of the legal provisions. I suggest the a specialized court is established. This court should deal with animals matters exclusively. Furthermore, I suggest the redaction of the provision on maltreatment of individual animals (unforeseeable maltreatment) being altered in the sense that instead of using many complicated criteria, the provision contains only the word maltreatment as the only criteria. This open provision gives the judge room to develop jurisprudence concerning maltreatment of animals.