La resolución a favor de Tuco. Primer efecto de la modificación del Código Civil

La resolución a favor de Tuco. Primer efecto de la modificación del Código Civil

Author: Daniel Navarro Sánchez. Lawyer, Master in Animal Law and Society. ICALP researcher

The entry into force, on January 5, 2022, of Law 17/2021, of December 15, amending the Civil Code, the Mortgage Law and the Law of Civil Procedure, on the legal regime of animals (1), has come to regulate, in our country, the beginning of a new Legal Statute of animals.

The above, which is already an “unstoppable trend” (2) , transforms the legal consideration of animals from mere things to living beings endowed with sensitivity, thus complying with the provisions of art. 13 of the TFEU and offering a necessary regulation to certain problems that had been arising in the field of civil law.

In this sense, where the resolutions of the courts and tribunals offered contradictory interpretations, in what refers to the special consideration of animals as sentient beings, from now on a new scenario opens where the current regulations offer a regulation in accordance with the needs of the animals and consistent with European regulations on this matter.

The first procedure that applies the indicated legislative modifications and that has had public notoriety for these purposes has Tuco (3) as the protagonist. In this regard, we are faced with a controversy that began in 2018 and that had been elucidated in the criminal order and, later, in the civil order.

As far as the factual relationship is concerned, we must underline that, based on a trip abroad by the plaintiff, the animal was handed over to the defendant to be cared for a short period of time; however, this temporary lapse lasted for two years. Derived from the foregoing, once the plaintiff demanded the return of the animal, the defendant showed her refusal based on the emotional bond that linked her to Tuco and the plaintiff's apparent lack of concern for the animal.

In the civil court, it was ruled that the plaintiff had not given any consent for the change of ownership and that, therefore, it belonged to him, and this procedure was appealed before the Provincial Court. In view of the foregoing, the plaintiff requested the provisional execution of the judgment so that Tuco could be handed over immediately, to which the defendant objected by means of the corresponding writ.

Well, the order of the Investigating Court number 11 of Oviedo, responds to this writ of opposition and paralyzes the handover of Tuco, since the handover "of a thing, but of an animal" is not being elucidated, which is "a living being, endowed with sensitivity, so that all decisions that affect an animal must ensure its welfare according to the characteristics of each species".

The head of the Investigating Court understands that as long as the procedure on the ownership of the animal is not final, it is advisable not to change Tuco's situation due to the avoidable suffering that could be caused to him.

In short, a resolution that endorses the beginning of a new legal framework for animals and that provides legal certainty to the parties in the process, to all parties, including animals.

 

1 The regulatory text can be accessed at https://www.boe.es/diario_boe/txt.php?id=BOE-A-2021-20727
2 Giménez-Candela, M., An unstoppable trend, dA. Animal Law (Forum of Animal Law Studies) 6/1 (2015). - DOI https://doi.org/10.5565/rev/da.272
3 The news can be accessed on the digital page of El Mundo: https://www.elmundo.es/espana/2022/01/24/61ebf6a3fdddff716f8b45a4.html
 

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