Fundamental Rights - Civil and political rights - Prohibition of torture and inhuman and degrading treatment.
Maltreatment of companion animals
Civil and Political Rights;
Prohibition of torture and inhuman and degrading integrity
Principle of legality
I - The Constitutional Court was summoned to assess the constitutional conformity of the norm that typifies the crime of mistreatment of companion animals contained in article 387.º, number 3, of the Penal Code,, in conjunction with article 389.º, numbers 1 and 3, of the Penal Code, in both cases in the wording introduced by Law 39/ 2020, of 18 August, whose application was refused by the court of first instance, who acquitted the defendant accused of that crime in a decision that was appealed to the Constitutional Court by the Public Prosecutor.
II - The contested decision was essentially based on the Ruling n. 867/2021 of the Constitutional Court, which ruled that “the incriminating norm contained in article 387.º of the Penal Code, in the wording introduced by Law n.º 69/2014 , of August 29” was unconstitutional because of the “violation, jointly, of articles 27.º and 18.º, number 2, of the [Portuguese] Constitution”.
III - To assess the constitutionality of this norm it is necessary to ascertain whether this incrimination aims to protect a constitutionally protected legal interest (and which one) and to determine whether the legal consecration of this crime violates (or not) the principle of legality, in its various aspects, in particular with regard to the principle of typicality of criminal law, resulting from article 29, number 1, of the Portuguese Constitution.
IV - The main function of the Criminal Law is the direct protection of legal interests, which is why it is important, when analysing a legal type of crime, to know which legal interest it aims to protect, given that the reason for the appearance of each crime is the protection of a legal interest that a given historically situated community considers essential.
V - The Portuguese Penal Code expressly enshrines the criminalization of mistreatment of companion animals, and therefore, the ordinary legislator has prioritized the protection of the welfare of companion animals, as has already happened, moreover, in constitutions of other countries, in international and European law and in the Portuguese civil law.
VI - The text of the Portuguese Constitution does not contain, literally and expressly, any rule about the protection of the welfare of (companion) animals, making it possible, as decided in the Ruling n. 867/2021, to assume that it’s not a constitutionally protected legal interest, and, therefore, that this norm is unconstitutional, because the Portuguese Constitution prescribes that the legislator can only restrict constitutionally enshrined rights, freedoms and guarantees when that is necessary for protecting other constitutionally enshrined rights or interests (Article 18º, number 2).
VII - It can be admitted, in an actualist and dynamic reading of the constitutional text, that the legal interest concerning the welfare of (companion) animals still finds support in constitutional rules, such as those that refer to human dignity, solidarity or environmental protection, but always in limited cases and in situations delimited with all the rigour and caution.
VIII - The principle of criminal legality has a constitutional basis, resulting from the article 29.º, number 1, of the Portuguese Constitution, and has its origin in the protection of individual freedom, which implies for the ordinary legislator the duty to formulate the criminal norms clearly and precisely, both with regard to the delimitation of the facts that constitute a crime, and with regard to the actual sanctions associated with the concretely typified crimes.
IX - This norm – that typifies the crime of mistreatment of companion animals – does not comply with the minimum requirements for determining the criminal law arising from the principle of legality contained in article 29, paragraph 1 of the Portuguese Constitution, because of the indetermination and ambiguity of many of the concepts used in this legal rule (as the concept of “companion animal” or “reasonable cause”), leading to the conclusion that it is unconstitutional, as decided by the Constitutional Court in this ruling.
- no. 72/21, 27.01.2021;
-no. 867/21, 10.11.2021