Hunting, rights and duties of hunters and animal protection; a commentary note on the sentence of the Court of Cassation section penalty n. 950 of 13 January 2015 by the lawyer Francesco Pandolfi.
There is no doubt that the Italian legal system dictates a very complex legislation on hunting activities, which connects at the same time the rights and duties of those who exercise the hunting with the need to protect wildlife and protected species, as well as with the need to prevent or in any case avoid the useless mistreatment of animals.Legislation that, lately, has been to some extent enriched and exacerbated, in the sense that the animal itself is no longer considered the object of indirect or secondary protection, but is instead placed at the center of the protection regime, rising to the rank of being living with sensitivity. This orientation has also taken effect in the wake of firm jurisprudential rulings.
Certainly to bear in mind is that the Law of 22 November 1993, n. 473, amending article 727 of the Criminal Code, has changed the basic legal presupposition underlying the criminal protection of animals, which are currently to be considered living, understood the concept in a broad sense: that is, it is no longer enough to refer to the notion of mistreatment of animals. themselves as a suitable instrument to offend the common feeling of pity. From this point of view, it goes without saying that whoever prepares to practice hunting must be increasingly informed about the powers and limits assigned to hunting.
When is the hunting activity lawful and, consequently, the hunter is not prosecutable?
The activity of hunting (especially in the field of hunting through live calls) will be in line with the requirements in the field of wildlife protection in the event that the principles dictated by the following rules are fulfilled:
a) with regard to animals, any activity not prohibited by Law no. 157/92 “protection of homeothermic wildlife and for hunting”;
b) due to the entry into force of Law no. 22, amending article 1993 of the Criminal Code, the sphere of guarantee must be extended through the introduction of the prohibition of conduct that could lead to the mistreatment of the animal used as a lure or of the captured prey itself.
The hunter, to be respectful of the law, will avoid using the animal as a non-physiological call.
Let's explain better: the use of live calls is allowed but it is forbidden for living beings such as birds to be caused suffering with the use of this technique. For legal purposes, what matters is to maintain a conduct that respects these precepts, since the torment or torture of the animal is not tolerable, with the consequence that the legitimacy of hunting practices must be verified in the light of the protection rules reserved for them.
What can the hunter do in the event of an accusation under Article 727 of the Italian Criminal Code?
It is simple: he will have to demonstrate that he has respected the nature of the animal with which he has carried out the practice of "recall". So, for example, not holding a lark with a rope to then yank them to the ground with a rope when they fly up acting as decoys.
(26 August 2015)
Source: StudioCataldi - Avv. Francesco Pandolfi