The present article aims to single out the legal implications of the situation in which a person decides to acquire a guard dog in order to protect himself/herself from possible threats. Staying alive is our basic daily task. Therefore, not surprisingly, humans resort to a multitude of mechanisms for protection in order to feel safe. The argumentation will be built by analysing a particular case that raises legal issues in the field of both criminal and civil liabilities in the Romanian legal system.
I propose the following case. Let us picture X, a person who decides that the following night, he/she will climb over the fence of a random household and will enter the house while the owners are asleep in order to steal some assets. X carries through with his/her criminal resolution and inconspicuously arrives at the gate of the chosen house. He notices that on the gate a fluorescent warning sign was placed, saying: ‘Beware! Dangerous dog! Enter at your own risk!’. X did not count on the dog and did not bring any weapons, but decides to carry out the plan, being fairly certain that he would manage to avoid stirring the animal. However, his attempts are without luck and the chained animal is more ferocious than expected. Feeling threatened, the dog charges for the thief. Eventually, X dies as a result of the canine attack.
The first question to be raised is: according to Romanian law, is there someone to be held accountable for the demise of X? If so, who and on what legal ground will this person be held liable?
Before answering these questions, let us focus on the case from a layperson’s point of view. As is the case in any state, the majority of Romanian citizens have not studied law. Thus, if we were to survey some of them regarding this case they would most likely not have the urge to resort to legal arguments. Probably, they will firstly turn to their instincts. And, more often than not, their instincts will tell them the following things: (1) stealing is bad. (2) stealing from somebody’s house at night after climbing the fence and forcing the entry is trespassing and is even worse. (3) if someone tries to hurt me it is normal for me to want to protect myself; everyone would do the same. (4) if someone dies while trying to hurt me why should I be held liable when that person’s own actions led to his death? Thus, the probable instinctual reaction of a layman would be to say that nobody should be held accountable for the thief’s death, that the situation is misfortunate, but that it would be preposterous for the victim of the thief’s endeavours to answer for his death.
Law aims to rise above instincts and to bring reason into our inter-human relationships. Law works with general principles and norms that are impersonal, that apply to every situation of the same nature. And what is essential in our case is that a person has died. Law does not care about that person’s criminal record, about his/her history or other personal circumstances. The law protects life. Life, as the supreme social value, is naturally highly protected. Forcefully and primarily, by Criminal Law and secondly, by Civil Law. I will now divide the issues of both criminal and civil liability in order to establish how each of them are incident in the current case. Also, I will eventually alter the case so the reader may notice how the answers may change alongside the circumstances.
With regard to criminal liability, it is noteworthy that Government Emergency Ordinance 55/2002 (hereinafter G.E.O. 55/2002), the statute that regulates the matter of dangerous or aggressive dogs does not apply to the case, as Article 2, paragraph (2) states that it does not apply in the situation of dogs that attack or bite people that have trespassed a property protected by that dog. However, our first scenario involves exactly those types of aggressive dogs. Therefore, we turn our attention to the Romanian Criminal Code. Of all crimes against life, this case revolves around Article 192, paragraph (1) concerning the Romanian version of manslaughter. It is noticeable that the owner of the dog did not aim to cause another’s death intentionally. This results from his actions: he wanted to protect himself and his property, so he chose an aggressive dog as a mechanism. He foresaw that the aggressive nature of the dog could lead to a trespasser’s death, but based on the measures of precaution taken, namely the warning sign, chaining the dog, he/she decided to carry out with this protection strategy, thinking the dog would at the most hurt a trespasser (Streteanu and Nițu, 2014, p. 333-336).
I have used the word ‘protection’ quite a few times and it is natural you would wonder: what about self-defence? As stated by authors (Streteanu and Nițu, 2014, p. 357-358), self-defence can be incident even when the attacked person preventively installs automatic defence-systems, such as traps, electric devices or even aggressive dogs, but only provided the other legal conditions are met (Article 19 of the Romanian Criminal Code). Our case describes a typical situation of presumed self-defence, as defined by the Criminal Code (Article 19, paragraph ), meaning the prosecution will have to prove that the legal conditions are not met. The problematic condition in our case is the proportionality of the fight back. In order for criminal liability to be removed by self-defence, the attacked person must respond with a typical criminal act of lesser or equal gravity to that of the attacker. However, scholars do draw attention to the fact that the attacked will have to deal with the consequences of the mechanism exceeding proportionality (Streteanu and Nițu, 2014, p. 358; Calderon and Choclán, 2001, p. 204).
The thief aimed to endanger the dog owner’s property. And the owner fought back, by means of the dog, resulting in the thief’s demise. As stated in legal literature, the analysis of proportionality is not a mathematical one, but rather one that should put into balance the social values at stake (the attacker’s life vs. the property of the attacked) and the consequences that could have occurred (Streteanu and Nițu, 2014, p 367). Some authors claim that it is not justified to kill a person intentionally for the protection of property, but that in situations such as the analysed one (non-intentional killing), self-defence is not to be automatically excluded, provided the proportionality condition is met (Streteanu and Nițu, 2014, p. 369-370). Otherwise, the owner will be held liable according to Article 192, paragraph (1) of the Criminal Code. Of course, liability will be mitigated by the legal circumstance provided by Article 75, paragraph (1), letter (b) of the Criminal Code, namely exceeding the limits of self-defence.
I think the matter of proportionality is open to discussion and judges are likely to have various opinions. I believe there are arguments in favour of self-defence, with the exclusion of criminal liability. Indeed, until the thief begins to steal, we are only in the presence of trespassing and still, judging in concreto, on a case by case basis, the death of the trespasser may be justified. After all, the purpose of self-defence is to quench the attack and this happens in the given case only when the trespasser is removed from the property. The fact that G.E.O. 55/2002 which regulates special crimes in the matter of aggressive dogs is not applicable can also stand as an argument that the law considers this particular case from a self-defence perspective. Similarly, there were cases in which the owner killed the trespasser and was afterwards exonerated (Craiova Court of Appeal, Casefile 1983/P/2006; High Court of Cassation and Justice, the Criminal Chamber, Decision 429/2003).
On the other side, some may claim that mere trespassing cannot justify killing the trespasser and that liability can be indeed excluded only if Article 26, paragraph (1) of the Criminal Code is applicable, that is, the limits of self-defence were exceeded due to the fright caused by the trespassing. However, in the given case, this is not possible as the owner does not interfere in any way with the animal’s behaviour. Additionally, the High Court of Cassation and Justice (hereinafter H.C.C.J.) stated that Article 19, paragraph (3) of the Criminal Code is applicable only provided the attack is as described in paragraph (2) of the same Article (H.C.C.J, the Criminal Chamber, Decision 2406/2006). This raises the question: are we allowed to do anything to protect ourselves just because we do it on our property?
In the analysed case, provided the judge considers that the limits of self-defence have been exceeded, I believe the solution should not be a conviction. If all conditions are met, I suggest one of the solutions provided by Articles 80 or 83 of the Criminal Code as alternatives to a prison sentence because the particularities of the case prove it would be excessive for the dog owner to suffer the consequences of a conviction.
In a second scenario, let us think about a solution if the thief does not die, but is only bitten by the dog. Does anything change? In view of the aforementioned arguments, in this case I claim that the attack on the dog owner’s property vs. the fight back that leads to the thief being injured (being applicable Articles 193 or 194 of the Criminal Code) weigh relatively the same on the proportionality scale, meaning all the conditions of self-defence are met and consequently, criminal liability is removed (H.C.C.J, the Criminal Chamber, Decision 2406/2006).
What if the dog was not an aggressive one, but a regular pet? What if it was a Bichon? Or a Pekinese? And the thief was killed by it because, for instance, the dog had been severely affected by an unknown disease that had not yet manifested (such as rabies)? Setting aside the ridicule of the situation, would the death of the thief be assessed in the same terms? No, because in order for Article 192, paragraph (1) to be applicable we need to identify an element that proves mens rea (i.e. a form of guilt: negligence or recklessness). And we cannot argue about the existence of negligence because even if in this particular case the owner did not foresee the outcome (the thief’s death), he was not bound to foresee it either. As shown by authors (Streteanu and Nițu, 2014, p. 338), negligence exists when the subject had, in concreto, the possibility to foresee the outcome. Even if another person could have foreseen it, our character could not, so he/she is not to be held liable.
The next paragraphs are dedicated to assessing the issue of civil liability in the three scenarios described above. As noticed by legal writers, a strong correlation exists between the civil and criminal liabilities (Eliescu, 1972, p. 31-34). One does not exclude the other, as they have different purposes (Vasilescu, 2012, p. 565): one – to punish (criminal liability) and the other – to repair the damage caused by illicit actions (civil liability). The two often overlap in a case, but it is also possible that only one of them is triggered. It all depends on the features of the illicit act (Eliescu, 1972, p. 32-33). In order for civil liability to be activated we need to identify: an illicit action, damage, the link of causality between them and sometimes a form of guilt (Vasilescu, 2012, p. 571; Pop, Popa, and Vidu, 2015, p. 329; Eliescu, 1972, p. 89).
In this specific case, a certain form of civil liability is brought into focus: liability for animals, regulated by Articles 1375 to 1380 of the Civil Code. Its particularities clearly distinguish it from the criminal liability. As I have already mentioned, criminal liability demands a form of mens rea (guilt). By contrast, liability for animals is a strict liability (Article 1376 of the Civil Code; Eliescu, 1972, p. 372; Vasilescu, 2012, p. 662; Pop, Popa, and Vidu, 2015, p. 382-383), meaning the psychological position of the author is irrelevant to activate it. The fundament of this liability is considered to be the duty to guarantee for society’s safety as a consequence of the decision to own an animal (Vasilescu, 2012, p. 659, 662; Pop, Popa, and Vidu, 2015, p. 383; Eliescu, 1972, p. 374). Another special condition in order to trigger liability for animals is regulated by Articles 1376, paragraph (1) and 1377 of the Civil Code. The person who will be held liable for the animal’s conduct is the legal custodian of the animal, in our case, the owner of the dog (Pop, Popa, and Vidu, 2015, p. 384; Vasilescu, 2012, p. 652-656, 662; Eliescu, 1972, p. 336-342), the person that controls, supervises the animal and derives benefit from owning it.
In view of the aforementioned arguments, in the first scenario, when the thief dies and the limits of self-defence are considered to be exceeded, all conditions seem to be met (a crime is, per se, an illicit act). However, according to Article 1380 of the Civil Code, the owner is exonerated when the damage is caused exclusively by the victim’s action (Pop, Popa, and Vidu, 2015, p. 385-386; Vasilescu, 2012, p. 601-602). In the present case, I would argue that it was the thief’s sole action to trespass that caused his death, being his choice to disregard the warning sign. Regarding the scenario when the shield of self-defence is activated, this shield operates not only in the field of criminal liability. Self-defence is a legal institution that generates universal effects in law. Since self-defence turns an otherwise illicit action into a licit one, liability must be excluded in all branches of law (Article 1360, paragraph (2); Streteanu and Nițu, 2014, p. 370), because the first condition, that is, the illicit act, is missing. In the third case, where criminal liability is missing due to lack of guilt, since civil liability for animals is a strict one, the lack of mens rea is irrelevant. However, similarly to the first case, I believe Article 1380 of the Civil Code to be applicable, since the damage was caused due to the trespasser’s action, which triggered an unpredictable response from the otherwise harmless animal.
Conclusively, while in the field of criminal law, the solution might vary from case to case due to the judge’s assessment regarding the conditions of self-defence, I believe the Civil Code provides ground to remove civil liability in all three scenarios described above
By Sabrina Matei
This article will also be published in issue 5.1 of the magazine.