Case: dolphins protection.
Region: Ukraine, Lviv region, Truskavets.
Essence of the case: animal protection against cruel treatment.
Parties: EPL, Dolphinarium “Oscar Truskavets” LLC “Akvadelf”.
Essence of the problem: violation of rules and norms of keeping wild animals in captivity, no permits for the maintenance and use of wild animals.
Main facts:
October 31, 2015 dolphinarium “Oscar Truskavets” owned by LLC “Akvadelf” was opened in the city Truskavets, Lviv region. Dolphinarium has 6 Black Sea bottlenose dolphins and 3 seals.
At the request of EPL, the main department of the State Service of Ukraine on Food Safety and Consumer Protection in Lviv region carried out the check of the “Oscar Truskavets” and found out that dolphinarium keeps marine mammals in the artificially made from fresh water, salinity of about 20 grams. per liter (artificial seawater).
According to the paragraph 5 of the article 25 of the Law of Ukraine “On protection of animals from cruelty” № 3447-IV, dolphinariums without nature seawater are banned. According to the paragraph 3.1. section III of the Rules and regulations of keeping dolphins in captivity, approved by the Ministry of Environment № 622, in the pools and aviaries of dolphinariums/oceanariums must be natural seawater.
The bottlenose dolphin is listed as an endangered species in the Red Book of Ukraine. The purpose of entering animals into the Red Book is to establish a special legal regime for conservation and restoration of rare species.
Instead, keeping rare animals in captivity without providing them natural conditions according to their physiological needs and biological characteristics contradicts the purpose of the establishment of a special regime for rare species. Dolphins acquire sexual maturity at 5-10 years and live up to 25 years. Instead, life expectancy in captivity is usually no more than 3-5 years. So keeping them in captivity leads to the reducing of their amount, but not for the protecting of rare species. According to the requirements of the Law of Ukraine “On the Red Book of Ukraine” dolphinariums must use natural seawater for keeping dolphins and provide them all appropriate conditions for living in captivity.
Thus, the Dolphinarium “Oscar Truskavets” LLC “Akvadelf” violates current legislation by keeping dolphins in artificial seawater.
Dolphinarium also doesn’t have the necessary permits for the maintenance and use of wild animals and rare species.
In particular, at the request of EPL (October 13, 2015 number 655) the State Environmental Inspection of Lviv region found the following violations:
- no permit for keeping wild animals in captivity;
- no permit for holding entertainment events with animals;
- no permit for breeding in captivity species listed in the Red Book of Ukraine.
Also Drohobych department State Sanitary and Epidemiological Service of Ukraine at the request of EPL found out that water in the dolphinariums pools does not comply with sanitary and epidemiological requirements. For example, there is excessive contents of residual active chlorine in the poll water.
Thus, the Dolphinarium “Oscar Truskavets” LLC “Akvadelf” operates with:
- violation of the regulations of keeping animals in captivity;
- no necessary permits for keeping wild animals in captivity, holding entertainment events with animals etc.;
- violation of the principle of animal protection from cruelty;
- violation of the sanitary and epidemiological requirements;
- violation of the regulations of keeping in captivity and using animals, listed in the Red Book of Ukraine.
In aim to protect animals from cruelty and stop illegal using of rare species for getting profit EPL went to Kyiv commercial court to obtain a court order to stop using dolphins by dolphinarium in their show. Despite the above-mentioned violations, as well as the activities that are prohibited by current legislation (using species listed in the Red Book of Ukraine for commercial purposes), the court refused to satisfy EPL claims.
The Kyiv commercial court based its decision on the fact that the EPL does not have the right to go to court because the Aarhus Convention does not give it such right. At the same time, the court narrowly interpreted the Aarhus Convention, nor did it investigate all existing violations and circumstances of the case. In this regard, EPL appealed the decision of the court of first instance. The Kiev commercial court of appeal upheld the position of the court of first instance. In this regard, EPL appealed to the Supreme Court of Ukraine.
The case had exceptional legal problem regarding the use of Red List animals and regarding the conditions in which wild animals were kept in captivity. Also there was a need to create single law-enforcement practice on these matters. Because of these reasons EPL prepared motion on pending the case by Grand Chamber of the Supreme Court. Motion was satisfied.
The Grand Chamber reversed the decisions of the first instance court and appeal court and closed the proceeding1. The Grand Chamber based its decision on the fact that the dispute was public, that in this dispute EPL actually exercises the powers of the public authority, so case should be heard at the administrative jurisdiction.
The public nature of the claim is caused by a violation of the constitutional and environmental law, which guarantees the right of ownership of the Ukrainian people to natural resources, as well as the derivative right of everyone to exercise the general and special use of natural resources.
The Grand Chamber admitted EPL’s right to go to court on this dispute. At the same time such right should be realized at the administrative court.
Under the decision of Grand Chamber, the absence of legal permit-issuing procedure does not allowed to use animals without such permits, because it is prohibited by law.
