Judgment of the Cassation on the Electric Collar: It is a crime only if the dog suffers

Siena, 19 March 2021 – Anyone who puts an electric collar on their dog will not face a criminal sentence if there are no signs of suffering caused to the animal. This can be seen from a sentence with which the Supreme Court acquitted “because the fact does not exist” a man, owner of a hunting dog, who was instead sentenced by the court of Siena to pay a fine of 2 thousand euros for the crime provided for by article 727 of the penal code concerning the “mistreatment of animals”.

The third criminal section of the Court accepted the appeal of the defense of the accused, in which it was argued that the motivation for the sentence was “inadequate”, as the dog had no “signs of injury on the neck” and enjoyed “excellent health”. Furthermore, the appeal underlined that “the model of collar found on the animal can also be used for the emission of only sound impulses and for the location of the animal itself, so that in the absence of ascertaining a concrete damage to the dog, it would lack the objective element of the crime, which cannot be integrated by the mere application of the collar on the animal “. The judges of the ‘Palazzaccio’, in the sentence filed today, note that “the prohibited conduct, object of indictment, is not the mere affixing of the electronic collar to the animal, but its actual use, to the extent that this causes serious suffering. ‘: event of the crime to be understood in the onset of psycho-physical diseases in the animal, in the absence of which it escapes the perimeter of typicality “.

https://www.lanazione.it/siena/cronaca/collare-elettrico-1.6151254

The sentence is also reported:

Criminal Sent. Section 3 Num. 10758 Year 2021

President: RAMACCI LUCA

Speaker: CORBETTA STEFANO

Audience Date: 11/02/2021

JUDGMENT

on the appeal brought by

XXX

against the sentence of 01/15/2020 of the Court of Siena

having regard to the documents, the contested provision and the appeal;

having heard the report made by the director Stefano Corbetta;

read the indictment of the Public Prosecutor, in the person of the Deputy Prosecutor

general Domenico Seccia, who concluded by asking for the cancellation

the inadmissibility of the appeal.

BELIEVED IN FACT

1. With the contested sentence, the Court of Siena sentenced Aurelio to the

penalty of 2,000 fine for the crime referred to in art. 727, paragraph 2, cod. pen., to him

ascribed because, having applied a collar designed for the transmission of

electric shock, he held his own English breed dog, which he used to

the hunting activity, in a productive condition of serious suffering.

2. Against the indicated sentence, the accused, through the defender of

trust, proposes an appeal in cassation, entrusted to four reasons.

2.1. The first reason infers the violation of art. 606, paragraph 1, lett.

b) cod. proc. pen. in relation to the observance of the principles of legality and of

determinacy. The applicant assumes that the conduct would be generically

described by the incriminating case, which integrates the violation of art. 25,

paragraph 2 of the Constitution The appellant adds that the contested conduct, ie the use

of an electric collar, it would not be framed in a clear legislation e

specifies, due to the succession of three ministerial ordinances which established the

prohibition of the use of this collar, referring to cases of abuse of the

instrument, order that the Lazio TAR canceled; the appellant, therefore,

he would not have been able to know with certainty and sufficient accuracy the

content of the criminally sanctioned prohibition.

2.2. With the second reason, the violation of art. 606, paragraph 1,

lett. e) with regard to the existence of the objective element of the crime. Advise

of the applicant, the reasoning would be inadequate, as the dog does not have

reported no signs of injury on his neck and was in excellent health; under other

profile, the collar model found on the animal can also be used for

emission of sound impulses only and for the localization of the animal itself,

so that, in the absence of the ascertainment of a concrete prejudice for the dog,

would lack the objective element of the crime, which cannot be integrated by the

mere application of the collar on the animal.

2.3. With the third reason, the violation of art. 606, paragraph 1, lett.

b) cod. proc. pen. in relation to the evidential results. According to the applicant, the

Court found the collar electrodes working despite the agents

have not carried out a verification in this sense, also considering that

the accused was not found in possession of the remote control, capable of operating

the electrodes.

2.4. The fourth reason invokes the ex officio applicability of art. 131-bis

cod. pen., the factual assumptions integrating the cause of non-punishment exist.

CONSIDERED AS LAW

1. The appeal is well founded in relation to the second plea, that which has character

absorbent.

2. Art. 727, paragraph 2, cod. pen. punishes, as a contravention,

“anyone who holds animals under conditions incompatible with their nature, and

productive of serious suffering “.

The rule has been constantly interpreted by this Section in the sense

that the use of, electronic collar, which produces shocks or other electrical impulses

transmitted to the dog via remote control, integrates the contravention of

keeping of animals in conditions incompatible with their nature and productive of

severe suffering, as it concretizes a well-founded form of training

exclusively on a painful stimulus that has a significant impact

on the psychophysical integrity of the animal (Sect. 3, Judgment n. 21932 of 11/02/2016,

Rv. 267345; Section 3, 11/02/2016, Bastianini, Rv. 267345; Section 3, 20/06/2013,

Tonolli, Rv. 257685; Section 3, 24/01/2007, Sarto, Rv. 236335).

3. It should also be noted that the prohibited conduct, subject to indictment,

it is not the mere affixing of the electronic collar to the animal, but its actual effect

use, to the extent that this causes “serious suffering”: event of the crime, from

to be understood in the onset of psycho-physical sufferings in the animal, in the absence of which

it escapes the perimeter of typicality.

4. In the present case, as ascertained by the trial judge, i

forest police verified that the accused was using his dog

for hunting, who wore two collars: one for the acoustic signal

and one equipped with two electrodes capable of giving small shocks at a distance thanks to

a remote control, which, in the present case, was not found.

Following a veterinary visit, the dog was found to be in good health

and without skin signs at the height of the neck, nor were any problems ascertained

hearing caused, in hypothesis, by sound impulses.

5. Well, the reasoning is wrong where it recognized the existence of the

crime solely from the fact that the dog wore the electric collar, without

verify that, through its concrete used, they have been caused to the animal

“severe suffering”.

6. Following the interpretation of the Court, in fact, the crime of

referred to in art. 727, paragraph 2, cod. pen. from case of event to case of

mere conduct, that which conflicts with the clear legislative provision, which requires,

for the integration of the fact, the onset of serious suffering in the animal.

In the case in question, not only was this assessment totally lacking,

even considering that the remote control with which to remotely operate the collar is not

was found in the availability of the accused, but an element of sign emerges

opposite, given the ascertained absence of both scars on the dog’s neck and

hearing problems: elements that, if present, would have been indicative

not only of the concrete used of the collar, but also, and above all, of the graves

suffering suffered by the animal as a consequence of that use.

6. The contested judgment must therefore be annulled without referral because

the fact does not exist.

PQM

It cancels the contested sentence without postponement because the fact does not exist.

So decided on 11/02/2021.