Decision concerning Maltreatment of companion animals
Fundamental Rights; Civil and Political Rights; Penal code; Prohibition of torture and inhuman and degrading integrity
RULING No. 867/2021
10 November 2021
The Constitutional Court – sitting in a composition of 5 judges, and in a voting by a majority of 3 judges against 2 – ruled unconstitutional Article 387 of the Penal Code, which criminalises maltreatment of companion animals. The prohibited conduct consists of, without a legitimate reason, inflicting pain, suffering or any other type of maltreatment on a companion animal, which according to Article 389 is to be understood as any animal held or destined to be held by human beings, for instance in their home, for their amusement and company (but not animals being used for agricultural, cattle raising or agro-industrial purposes, in commercial shows or to other legally admitted ends).
Those provisions were introduced by Law no 69/2014, of 29 August, and in the case were applied in their original version, rather than in the version currently in force, which among other things raised the applicable penalty (the current maximum now being imprisonment up to 2 years, rather than up to 1 year). It also criminalised the killing of a companion animal, which formerly was relevant only as an aggravating result of the conduct of maltreatment. In any event, the fundamental question addressed in the ruling applies also to the current version.
Unlike other Constitutions, the Portuguese Constitution explicitly prescribes that the legislator can only restrict constitutionally enshrined rights, freedoms and guarantees where that is necessary for protecting other constitutionally enshrined rights or interests (Article 18 (2)). Deprivation of liberty being the harshest legal consequence applicable in the Portuguese legal system, the criminalisation of a conduct falls clearly within the scope of that provision, as the Constitutional Court has repeated upheld in its case law. In this light, regardless of its ethical underpinnings, the criminalisation of the maltreatment of animals could be legitimate only if it is possible to establish that the Constitution provides for the protection of animals.
Such a protection need not take the shape of a right in the subjective sense of the concept, but rather it would be sufficient to derive from the Constitution an objective interest in protecting animals. It is not necessary, either, that the Constitution recognises animals to be the holders of moral standing, in the sense of them being acknowledged to possess an intrinsic value which is independent of any human interest. Some offences prescribed in the Penal Code already protect animals due to their relevance for human beings: v.g. the offence of damage, which consists of destroying, deforming, damaging or rendering unusable someone else’s property, including an animal (Article 212).
Conversely, it is perfectly possible to recognise moral standing to animals, but nevertheless conclude that a provision that criminalises their maltreatment does not find support in a given Constitution. In this event, the debate becomes a de lege ferenda one. This type of debate cannot be engaged into by the Court, as its competence lies strictly in evaluating the conformity of given norms with a given Constitution. This means that the evolution verified in certain areas of infra-constitutional law towards acknowledging animals as more than mere things, however well-founded and presumably irreversible, is not sufficient to legitimise deprivation of liberty. This possibility must follow from the Constitution itself – possibly from an amendment to be carried out, with the wide Parliamentary majority that it requires and the specific public debate that it entails. This ensures citizens that their constitutional rights (notably, their liberty) can only be restricted in order to attain other interests that have also been bestowed constitutional relevance through a similar democratic process.
EU law – notably, Article 13 TFEU – is of no avail here, as it applies only to the Union’s policies in specific fields (agriculture, fisheries, etc.). A protection such as that afforded by Article 387 Penal Code lies clearly beyond that horizon, and in fact it excludes the very activities to which the EU law provision applies (agriculture, etc.).
The Constitution provides in Article 9 (f) that a fundamental competence of the State is to protect and cherish nature and the environment and to preserve natural resources. In turn, Article 66 protects the environment, under the heading of social rights and duties. Naturally, both of those provisions protect animals to some extent. However, such a protection is only collateral: they protect animals because animals are an integral part of the environment, but not regardless of their relevance to the environment. They protect the environment taken in a holistic sense, rather than any of its integral parts individually considered. They may protect a given animal or a given tree, but not in the name of their intrinsic value. Only if – and to the extent that – protecting those specimens is relevant (e.g. because they belong to an endangered species) to the environment as a whole, as a balanced ensemble of ecosystems. There already existed an offence in the Penal Code concerned with this: that of damages against nature (Article 278).
But that is not the case with the offence of maltreatment of animals. This offence protects animals as such – their life, physical integrity –, as individuals, based on an acknowledgment of their moral standing. Therefore, the holistic protection of the environment is not capable of legitimising this offence. Otherwise, it would moreover be difficult to explain why the legislator limited the protection to companion animals, rather than extending it to other animals that, in view of their biological characteristics, would clearly command similar treatment.
Somewhat paradoxically, the fact that the legislator did design the offence by reference to the relationship between certain animals and human beings ultimately offers the more plausible support for this offence in an anthropocentric constitutional setting. The constitutional interest sustaining the offence would thus lie not (at least not only or not mainly) in the intrinsic importance of animals, but in their importance for human beings. This understanding relies on something of an articulation between the holistic protection of the environment and the principle of the dignity of the human person enshrined in Article 1 of the Constitution. However, as far the former is concerned, it has already been clarified above why it is not operative here. As for the latter, it should be firmly dismissed as a self-standing basis for criminalising any conduct whatsoever. Human dignity is a highly abstract concept, which, according to the steady case law of the Court, prevents it from being a source even of subjective individual rights, let alone of restrictions to such rights.
Human dignity is at once somewhat more and somewhat less than a right. It is the principle that confers unity and coherence on the whole constitutional system, providing guidance in the interpretation of constitutional norms. However, taken in an isolated manner, it would incur the risk of being used arbitrarily, given its extreme subjectivity. Were it to serve as legitimation for the enactment of criminal offences, it might in fact produce the very results it seeks to prevent, namely the instrumental use of the individual with a view to achieving certain societal ends. Which is unacceptable, however benign these ends might presumably be.
A fortiori, this excludes the view according to which the legal system acknowledges animals to hold an intrinsic dignity to some extent comparable to that of human beings. This is certainly the premise at the core of several lines of reasoning within the movement of animal protection, and it is certainly deserving of consideration. However, yet again, this is a de lege ferenda debate, for it is clear that, de lege data, the dignity envisioned by Article 1 of the Constitution is exclusively that of human beings.
Another possible way of understanding the offence of maltreatment of animals within an anthropocentric framework would be to construe it as protecting the legitimate feelings of compassion of human beings towards animals. However, this too is objectionable, as it throws open the doors of the legal system to the criminalisation of conduct based solely on its moral indecency. In order to be legitimate – and, thereby, worthy of protection through criminal law –, human feelings must refer to a reality that has, in itself, been constitutionally acknowledged to be worthy of protection. As of the moment in which animals come to receive such a protection, human feelings towards them might justify the existence of a criminal offence. As of that very moment, protection of those feelings would also be superfluous, for animals could then be protected by the proper reason: their recognition as intrinsically valuable beings.
All things considered, it is inevitable to conclude that there is no constitutional basis for criminalising maltreatment of animals. Such a conclusion should not be taken to express a view according to which the Portuguese Constitution is structurally opposed to criminalising such a conduct. Simply that it does not, at present, provide the necessary basis for that – and the Constitution as it stands is the parameter that the Court is bound to apply.
CP 1982 ART212 ART278 ART281 ART398. L 39/2020 DE 2020/08/18. DL 82/2019 DE 2019/06/27 ART4 N1 N2. L 173/99 DE 1999/09/21. DL 315/2009 DE 2009/10/29 ART31. DL 48/95 DE 1995/03/15
AC 72/21. AC 134/20.AC 426/91. AC 246/96. AC 7/99. AC 95/01. AC 20/91.