Facts
The appellant has kept the 50 kg Old English Bulldog [B.] since 14 December 2012. Her life partner regularly looks after the dog. The couple lives with the dog in an apartment building owned by the life partner, in which apartments are rented out.
On 28 November 2016, the Cantonal Veterinary Office of the Canton of Zurich ordered, under threat of the penalty under Art. 28 para. 3 TschG, that the dog be kept under secure control. The order was based on several incidents: an attack on a Labrador bitch (30 October 2012), an attack on a leashed pug (2 September 2016), a minor injury to a female keeper who intervened protectively (5 September 2016), and a bite to the face of the appellant (24 November 2014). The Health Directorate dismissed the appeal on 23 May 2017 and based the threatened penalty anew on Art. 292 SCC; this decision is final.
On 6 August 2017, the dog bit a visitor in the neighboring apartment on the neck and head and caused an 18 cm long open wound on the temple as well as further injuries. In early July 2017 it had bitten another bitch on the head, and on 27 July 2017 it attempted to attack a border guard. On 14 August 2017, the Veterinary Office threatened euthanasia should no analytical report from a specialist be submitted, and ordered a muzzle and leash requirement, a prohibition on transfer, and confinement during visits. The report was received on 17 October 2017. On 17 August 2017, the dog was provisionally seized after the cantonal police found that it had been left unsupervised in the inadequately secured garden, in the stairwell and in an open car. On 24 November 2017, the Veterinary Office ordered the definitive seizure and euthanasia.
The Health Directorate dismissed the appeal on 31 May 2018, insofar as it was admissible. The Administrative Court of the Canton of Zurich, 3rd Division, dismissed the appeal on 29 November 2018.
By a federal law appeal in public law matters dated 6 February 2019, the appellant requested that the seizure be lifted and the dog be returned to her subject to conditions, or alternatively returned subject to conditions so that she could leave Switzerland with the dog within 60 days. She complained of arbitrary establishment of the facts and assessment of evidence, a violation of the right to be heard (Art. 29 para. 2 Cst.) and of the right to evidence (Art. 8 CC), as well as disproportionality (Art. 5 para. 2 Cst.). The lower court, the Health Directorate and the FVO requested dismissal or waived a response.
The subject matter of the dispute was whether the seizure and euthanasia of the dog are compliant with federal law, in particular whether they are not arbitrary and proportionate.
Considerations
The federal law appeal in public law matters against the final cantonal decision of the last instance is admissible (Art. 82 lit. a, Art. 86 para. 1 lit. d, Art. 89 para. 1, Art. 90 FSCA). Complaints may be raised regarding violation of federal law and international law (Art. 95 lit. a and b FSCA). The Federal Supreme Court only reviews the application of cantonal law for arbitrariness; complaints concerning fundamental rights are subject to the qualified duty to raise and substantiate complaints (Art. 106 para. 2 FSCA). New facts and evidence are in principle inadmissible (Art. 99 para. 1 FSCA); the medical certificates dated 28 January 2019 and documents on the dog's state of health arising after the contested judgment are therefore not considered.
The complaint regarding the establishment of facts fails. A finding of facts may only be corrected in cases of obvious inaccuracy (Art. 97 para. 1 FSCA), and the reasoning must be substantiated. The appellant merely opposes her own account of the incidents to the findings, without demonstrating arbitrariness. The expert opinion by [E.] dated 17 October 2017 indeed indicates an increased danger upon return, because the keeper and her life partner misjudge the dog. The assertion that the tenants untied the dog is also immaterial, since the appellant should not have left it unsupervised.
The complaints regarding the right to be heard and the right to evidence also fail. The right to be heard (Art. 29 para. 2 Cst.) and the right to evidence (Art. 8 CC) do not grant an absolute entitlement to the taking of evidence. The lower court was entitled, through anticipatory assessment of evidence, to dispense with further evidence (expert opinions, presentation of the dog, witness examinations, video recordings), since the danger was sufficiently documented by the case file. The Federal Supreme Court may likewise reject evidence through anticipatory assessment of evidence if no findings relevant to the decision are to be expected from it.
On proportionality: the TschG aims at animal protection, not at the protection of humans from dangerous animals (Art. 80 Cst.). Regulation of dog keeping for reasons of public safety is a matter for the cantons, which is why the legal basis lies in the HuG/ZH. Under § 9 para. 1 lit. a, § 18 para. 1 and § 19 paras. 1 and 2 HuG/ZH, there is a statutory basis in formal law for seizure and euthanasia, which the appellant does not dispute.
The principle of proportionality (Art. 5 para. 2 Cst.) is not a fundamental right. Outside of specific fundamental rights, it can only be invoked in the application of…