EHRM, 26-07-2011, nr. 9718/03

Under section 5 of the Local Public Administration Act of 1991 (Law no. 69/1991), local self-government was conferred on the local councils as legislative authorities and the mayor's offices as executive authorities.

That Act was replaced on 23 April 2001 by a new Local Public Administration Act (Law no. 215/2001). Section 21 of that Act provides:

Section 39 of Law no. 60 of 29 October 1974 provided that the local authorities of each department were in charge of ensuring proper veterinary activity and thus entitled, inter alia, to ‘organise the capture and destruction of stray dogs’.

Section 39 of Law no. 60/1974 was amended on 28 August 1998 to provide that the local authorities were in charge of ‘organising the capture of stray dogs and employing, for this purpose, specific techniques authorised by international veterinary norms’.

On 13 December 2001 Emergency Decree no.155/2001 on the stray dogs management programme entered into force. Its relevant provisions provide:

Section 1(2) of Law no. 205/2004 on the protection of animals, which entered into force on 24 June 2004, provided that the rules governing stray dogs on the territory of Romania would be adopted by means of a specific law.

On 15 January 2008 Law no. 9/2008, amending Law no. 205/2004, entered into force. It forbade, inter alia, the euthanasia of stray dogs.

In November 2009 a draft Law on stray dogs was put on the agenda of Parliament. The draft, which provided, inter alia, for a duty on the authorities to capture and euthanise all stray dogs in order to preserve the safety and health of the population, was rejected by the Senate on 25 November 2009.

It is currently pending before the Chamber of Deputies, without any date set for its discussion so far, according to the web page of the Romanian Chamber of Deputies.

Since the mid-1990s the Romanian and foreign printed, on-line and audiovisual media have regularly reported on the large number of stray dogs on the streets and the problems that have ensued: attacks by stray dogs resulting in serious injuries to many people or even death in some cases; huge indignation caused in Romania and abroad by a number of actions taken by the authorities and with the purpose of euthanising some of the stray dogs; organisation of donation campaigns in favour of the sterilisation of stray dogs, and so on.

By the year 2000, the population of stray dogs in the city of Bucharest alone numbered some 200,000.

In March 2001 the mayor of Bucharest decided to have recourse to euthanasia, in the light of statistics for the city of Bucharest indicating that the population of stray dogs had doubled between 1996 and 2001; that in 2000 some 22,000 persons had received medical care following attacks by stray dogs; that from the beginning of 2001 more than 6,000 persons had been bitten by stray dogs; and that the persons most vulnerable to such attacks and seriously injured were children and elderly people. The international media widely reported on the mayor's attempt to tackle this issue, as well as on the other solutions envisaged by candidates in local elections throughout the country, and on the criticism of euthanasia measures by certain international public figures, such as the actress Brigitte Bardot, who in 2001 had donated some 100,000 euros to the City of Bucharest for the purpose of sterilising stray dogs instead of killing them.

The euthanasia campaign in Bucharest was stopped in 2003, after some 80,000 dogs had been euthanised.

In 2005 the media reported that the population of stray dogs had again risen alarmingly, and that between 40 and 50 complaints of dog attacks were being registered daily by the animal control service in the Bucharest City Hall.

The issue of the situation of stray dogs in Romania, as a public health issue, and the proposed ways of tackling it by legislative measures, was reportedly raised by various Romanian politicians with European Union bodies.

Specific incidents were also widely and regularly covered by the media from 2000. Thus, national newspapers such as Evenimentul Zilei, Ziua and Adevărul reported on their internet pages the death of a sixty-eight-year-old Japanese businessman after being bitten by a stray dog in the centre of Bucharest and the death of a two-year-old boy and a forty-five year old schizophrenic, both bitten by stray dogs in Craiova. Several news agencies, such as Mediafax and Ziare.com, and most newspapers reported on the death in similar circumstances of a six-year-old girl and of two other elderly persons in various major cities throughout Romania. In January 2011, an elderly woman was bitten to death by stray dogs in the centre of Bucharest.

According to the news agency Hotnews, the number of persons bitten by stray dogs in Bucharest has kept on increasing every year; for instance, it is reported that between November 2009 and February 2010, some 10,000 persons were bitten by stray dogs in Bucharest alone.

The Government have not submitted any official statistics or reports on the issue of stray dogs in Romania.

On 13 October 2009, the advisory body to the prefect, the Prefectural College, met and discussed, inter alia, the issue of stray dogs on the streets of Bucharest. In a statement published on the website of the Bucharest Prefect's Office following this meeting, the prefect stated that the problem of stray dogs was not yet solved and mentioned that:

The Prefect of Bucharest further stated that the data received from the Institute of Infectious Diseases of Bucharest were worrying and showed that a total of 9,178 persons had been bitten by stray dogs in Bucharest during the first six months of 2009, of which 1,678 were children. He also quoted a report by the Animal Control Agency, according to which 38% of the dogs collected by that authority from the streets of Bucharest in the first half of 2009 were infested with leptospirosis, an infectious disease transmissible to humans and which can cause meningitis, liver damage and renal failure.

On 2 February 2010, in a press release published on the website of the Bucharest Prefect's Office, the same prefect stated that there were almost 100,000 stray dogs in Bucharest and that more than 10,000 people were bitten every year.

In an interview of 27 April 2010 the prefect of Bucharest indicated that, according to the latest statistics, the number of stray dogs in the streets of Bucharest was between 40, 000, according to the NGOs, and 100,000, according to the local administration, that in 2009 around 7, 000 persons had been bitten in Bucharest by stray dogs, that in the first four months of 2010 the number of persons bitten by stray dogs was more than 2,000, and the costs for the treatment of these persons was about 400,000 euros per year. The prefect further indicated that he had proposed a draft law allowing the euthanasia of stray dogs in certain circumstances.

While the essential object of Article 8 is to protect individuals against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference since it may also give rise to certain positive obligations to ensure effective respect for the rights protected by Article 8 (see, among other authorities, X and Y v. the Netherlands, no. 8978/80, § 23, 26 March 1985). The positive obligations under Article 8 of the Convention may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, amongst others, Stjerna v. Finland, no. 18131/91, § 38, 25 November 1994, and Botta v. Italy, no. 21439/93, § 33, 24 February 1998).

The Court has previously held, in various contexts, that the concept of private life includes a person's physical and psychological integrity and that the States have a positive obligation to prevent breaches of the physical and moral integrity of an individual by other persons when the authorities knew or ought to have known of those breaches (see X and Y v. the Netherlands, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; and M.C. v. Bulgaria, no. 39272/98, §§ 73 and 149, ECHR 2003-XII,). The Court has also held that a positive obligation exists upon States to ensure respect for human dignity and the quality of life in certain respects (see L. v. Lithuania, no. 27527/03, § 56, 11 September 2007, and, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002-III).

Furthermore, in its recent ruling in A.B. and C. v. Ireland ([GC], no. 25579/05, 16 December 2010, §§ 247–249, with further references), the Court reiterated the following principles on the notion of positive obligations:

The obligation to adopt appropriate measures must be interpreted in a way that does not impose an impossible or disproportionate burden on the authorities. For the Court, not every claimed risk to the physical integrity can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. In the opinion of the Court, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life or the physical integrity of an indentified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Amaç and Okkan v. Turkey, no. 54179/00, 54176/00, § 46, 20 November 2007; mutatis mutandis, Osman cited above, §§ 116 and 121, and Berü v. Turkey, no. 47304/07, § 39, 11 January 2011).

Lastly, the Court has held that if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an ‘effective judicial system’ does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available to the victim (see, for example, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII, and Mastromatteo v. Italy [GC], no. 37703/97, §§ 90 and 94–95, ECHR 2002-VIII).

The Court notes at the outset that the applicant was attacked, bitten and knocked to the ground by a pack of about seven stray dogs in a residential area of Bucharest.

Undoubtedly, that attack and its consequences caused the applicant serious physical and psychological suffering (see paragraphs 7 to 10 above).

The Court further notes that the problem of stray dogs, regularly mentioned in the media after 1989, developed dramatically and became a public health and safety issue, having regard to the large number of persons attacked and injured by these dogs (see paragraphs 34 to 36 above).

Accordingly, the question to be determined by the Court is whether the facts of the case disclose a failure by the authorities of the respondent State to protect the physical and psychological integrity of the applicant, in breach of Article 8 of the Convention.

It is not disputed between the parties that the authorities had broad and detailed information on this issue, in particular the large number of stray dogs in the city of Bucharest and the danger they represented to the physical integrity and health of the population. The data available to the authorities also confirmed the regular occurrence of such incidents in the City of Bucharest (see paragraphs 34 to 36 above).

In that connection the Court notes that it was in 2001, after the occurrence of the incident in the present case, that the authorities acknowledged the special situation regarding the population of stray dogs, and on 19 April 2001 issued Decision no. 82 of the Bucharest General Council, and Emergency Decree no. 155/2001 on the stray dogs management programme, which entered into force on 13 December 2001. Both legal acts provided for stray dogs to be captured and neutered or euthanised (see paragraphs 24 and 30 above).

The Court acknowledges that, even before the incident in the present case occurred, regulations were in force in Romania providing a legal basis for the creation of specific structures in charge of the control of stray dogs (see paragraphs 20, 22 and 23 above). These regulations were modified several times after the incident in 2000. The changes concerned mainly the organisation and supervision of the structures in charge of controlling the population of stray dogs, and the treatment reserved to these dogs after their capture.

However, it notes that, despite these regulations, the situation continued to be critical, with several thousands of persons being injured by stray dogs in the City of Bucharest alone (see paragraphs 34 to 36 above). The Court agrees with the Government in this context that responsibility for the general situation of stray dogs in Romania also lies with civil society.

It is not the Court's task to substitute itself for the competent domestic authorities in determining the best policy to adopt in dealing with problems of public health and safety such as the issue of stray dogs in Romania. In that connection it accepts that an impossible or disproportionate burden must not be imposed on the authorities without consideration being given in particular to the operational choices which they must make in terms of priorities and resources (see Osman cited above, § 116, and Hajduová v. Slovakia, no. 2660/03, § 47, 30 November 2010); this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult spheres such as the one in issue in the instant case (see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 100–101, ECHR 2003-VIII, and Oneryildiz cited above, § 107).

In assessing compliance with Article 8, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are ‘practical and effective’. This is also true in cases where a general problem for the society reaches a level of gravity such that it becomes a serious and concrete physical threat to the population.

The Court must also look behind appearances and investigate the realities of the situation complained of. That assessment may also involve the conduct of the parties, including the means employed by the State and their implementation. Indeed, where an issue in the general interest is at stake, which reaches a degree of gravity such that it becomes a public health issue, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see, mutatis mutandis, Hutten-Czapska v. Poland [GC], no. 35014/97, § 168, ECHR 2006-VIII). In its assessment, the Court accepts that the measures and actions to be adopted and taken are not an obligation of result, but an obligation of means.

In this context, the Court notes that the judgment of 19 June 2001 of the Bucharest County Court addressed the merits of the applicant's complaints. It held that the Animal Control Agency, a public body, had not taken all necessary measures to avoid endangering the lives of the population and to preserve their health and physical integrity, and that the attack on the applicant had put her life and health in danger, causing her physical and psychological suffering and depriving her of a normal life on account of her fear of another attack.

However, the above-mentioned judgment was quashed for procedural reasons and the applicant's subsequent attempts to have a court decision providing her appropriate redress failed as well.

Furthermore, the Court observes that, apart from arguing that society in general should bear responsibility for the current situation of stray dogs in Romania, the Government have not provided any indication as to the concrete measures taken by the authorities at the time of the incident to properly implement the existing legislative framework with a view to addressing the serious problem of public health and threat to the physical integrity of the population represented by a large number of stray dogs. Neither have they indicated whether the regulations or practices at the time of the incident or adopted later were capable of providing appropriate redress for the cases of victims of attacks by stray dogs. In this connection, the Court notes that the above mentioned situation seems to persist (see paragraphs 34 to 36 above).

In the light of the foregoing, the Court finds that the lack of sufficient measures taken by the authorities in addressing the issue of stray dogs in the particular circumstances of the case, combined with their failure to provide appropriate redress to the applicant as a result of the injuries sustained, amounted to a breach of the State's positive obligations under Article 8 of the Convention to secure respect for the applicant's private life.

Accordingly, there has been a violation of that provision in the present case.