An Account of the Ruling of the Portuguese Constitutional Court no. 867/2021

0. Foreword. – While aware that full objectivity is seldom possible, this text seeks not to be a critical analysis of the ruling of the Portuguese Constitutional Court no. 867/2021, but quite simply an account of the reasoning on which it relies. It seeks to outline the terms of the problem of criminalisation of animal maltreatment as it applies in the Portuguese legal system, and the views expressed in that ruling. The text pays more attention to the ruling itself, but it also briefly conveys the views expressed in the two dissenting opinions that have been attached thereto.

All the translations provided for in this text of Portuguese legislation, of the ruling and of the dissenting opinions are unofficial, any inaccuracy being attributable to this author alone. In the same vein, the views that might transpire from this text are exclusively those of this author and in any way reflect those of the institutions where he works.

1. Introduction. – In the Ruling no. 867/2021, delivered on the 10^th of November, the Portuguese Constitutional Court ruled unconstitutional the offence established in Article 387 of the Penal Code (maltreatment of companion animals), on the grounds that it does not protect any legal interest enshrined in the Constitution.

The decision was taken in a composition of 5 judges and by a majority of 3 judges against 2. The two dissenting judges also held the provision to be unconstitutional, but on different grounds, namely that it was insufficiently well-defined to comply with the principle of legality in its dimension of lex certa.

The ruling was taken in the context of the so-called concrete constitutionality review, whereby the Court is called upon to rule on a given norm as it has been applied in a specific case by a judicial court. The case at hand involved the evisceration of a pregnant dog and was particularly impactful at the social level. In the first place, because the acts in question were quite appalling. In the second place, and partly in consequence of the foregoing, because it was the first occasion in which a judicial court had applied an effective imprisonment sentence for this type of acts: the court of 1^st instance applied a penalty of imprisonment for 16 months, although this penalty was later substituted by a non-custodial penalty at the High Court, ruling on ordinary appeal, before the case reached the Constitutional Court.

Some voices in legal literature had suggested that this offence was unconstitutional – e.g. Albergaria / Lima (2016), Aires de Sousa (2017), Narciso (2021), all quoted in the ruling –, but others upheld the opposite view – e.g. Bacelar Gouveia (2000), Quintela de Brito (2016), Pinto de Albuquerque (2021), also quoted in the ruling – and the offence was frequently applied by the judicial courts. The Constitutional Court was now ruling on the issue for the first time.

2. The offence of maltreatment of companion animals. – The conduct prohibited by the mentioned Article 387 of the Penal Code consists of, “without a legitimate reason, inflicting pain, suffering or any other type of physical 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 – as well as other provisions aimed at protecting animals from different sorts of harm inflicted on them by human beings – were introduced into the Portuguese legal system by Law no 69/2014, of 29 August, reflecting increased social respect towards animal welfare.

The penal protection of animals was later enhanced by Law no. 39/2020, of 18 August, which did not apply to the case, as it was not in force when the acts in question were committed. Among other things, the latter statute raised the penalty applicable to the offence of maltreatment of companion animals, and it introduced into the same provision an autonomous offence for the killing of companion animals, which formerly was only relevant as an aggravating result of the conduct of maltreatment. Nevertheless, the essential questions addressed in the ruling of the Constitutional Court hold complete relevance in the light of the current version of the Penal Code.

3. The constitutional principle of the protected legal interest. – In contrast with other Constitutions, the Portuguese Constitution explicitly and plainly establishes that the law can only restrict rights, freedoms and guarantees enshrined in the Constitution where that is necessary for protecting other constitutionally enshrined rights or interests (Article 18 (2)). This provision constitutes a manifestation of the principle of proportionality in the restriction of fundamental rights – a principle which is present in any democratic constitutional system –, but a specific manifestation of that principle, in that the leeway that is conferred on the legislator is enclosed within the axiological boundaries of the Constitution. Not every right or interest – however important it might have become at the societal level – can justify the compression of a constitutionally enshrined right: the right or interest whose protection is envisaged must itself be enshrined in the Constitution. That is, it must have a normative rank comparable to that of the right or interest which is being compressed. This is widely (though not unanimously) acknowledged in legal literature and in the case-law of the Constitutional Court (e.g. in the rulings nos. 25/84, 85/88, 426/91, 527/95, 288/98, 604/99, 312/2000, 516/2000, 99/2002, 337/2002, 617/2006, 75/2010, 377/2015, 134/2020 and 72/2021).

Since deprivation of liberty is the harshest legal consequence provided for in the Portuguese legal system, and since criminal offences necessarily entail the possibility of depriving individuals of their liberty, the criminalisation of a conduct falls clearly (and, arguably, more clearly than any other legislative action) within the scope of that provision. Within this framework, and irrespective of its moral and social grounding, an offence such as maltreatment of animals, like any other criminal offence, can be deemed legitimate only if it is possible to establish that the Constitution provides for the protection of animals – of their life, their physical integrity, their welfare.

Both the ruling (para. 9-10) and the two dissenting opinions (see yet infra, 3.1 and 3.3) note that such a protection needs not be explicit: it might follow implicitly from constitutional norms. And that it needs not to be enshrined as a subjective right either: it will suffice if an objective interest can be derived from the Constitution. Either way, it must be somehow discernible in the Constitution.

4. The offence of maltreatment of companion animals in the light of the Constitution – Since the Portuguese Constitution does not contain any explicit provision on animal welfare – unlike e.g. the German Basic Law, which in 2002 underwent an amendment process which inserted into its Article 20a what became three well-known words (“und die Tiere”) –, the analysis to be carried out by the Court would necessarily consist of discerning whether animal welfare was implicitly or indirectly protected in the Constitution.

4.1. In the light of the principle of the protected legal interest. – The ruling thus moves on to observe that, in order for the offence in question to be legitimate, it would not be necessary for the Constitution to somehow acknowledge animals as beings with an intrinsic moral relevance. In fact, several offences already exist in the Penal Code which protect animals in the name of their relevance for human beings. An example is the offence of damage (Article 212), which consists of destroying, deforming, damaging or rendering unusable someone else’s property, including an animal. Property being a constitutionally enshrined right (Article 62), and animals being liable to be owned by human beings, it is certainly legitimate to criminalise such behaviours as damaging someone else’s animal. Animals are protected by this provision, but evidently in a collateral manner only.

Conversely – the Court continued –, it is quite possible that one acknowledges animals as beings with an intrinsic moral relevance, but nevertheless concludes that a given Constitution does not protect animal welfare. If a community does recognise such moral bearing to animal life and integrity, then this should normally trigger a societal debate aimed at determining whether such values should be enshrined in the Constitution. This is, however, a de lege ferenda type of debate; a debate on whether or not the Constitution as it stands at a given point in time has become outdated and needs amending. Thus, such a debate was promptly dismissed by the Court for the purposes at hand, as its competence lies in appraising the conformity of legal norms with the Constitution, not as (in the opinion of its judges) it should be, but as it is at that given point in time.

In consequence of that, the Court, albeit acknowledging the evolution towards animal welfare protection verified in certain areas of infra-constitutional law (namely in the context of private law, where animals are no longer equated to mere things), also dismissed that this might somehow compensate for the absence of animal welfare in the Constitution. Given its infra-constitutional character, such an evolution – “however wide, continuous and presumably irreversible” (para. 10) – cannot replace the constitutional law-making process, with the wide Parliamentary majority that it demands and the specific public and political discussion that is thereby engaged. This part of the ruling concludes by asserting that it is this premise that ensures all citizens that their constitutional rights – notably their right to liberty – may only be limited by other interests that have also been conferred constitutional rank.

One of the dissenting opinions (infra, 3.3.b) was particularly vehement in criticising this aspect of the ruling. While accepting of the notion that criminal offences must be “constitutionally grounded”, this opinion pressed further on the view that this concept must not be equated to those rights and interests enunciated in the constitutional text, “as if constitutional values were a closed catalogue of decisions uttered by a supreme authority [the constitutional legislator] in a state of political hibernation from which is sporadically awakens; rather, the cases of explicit enshrinement of rights or interests are manifestations, concretisations or refractions of the human dignity upon which the whole constitutional order rests (…)”.

Be that as it may, the reasoning of the ruling does not seem possible to reduce to an attempt at uncovering an explicit or direct constitutional basis in the Constitution. As noted, it was from the outset clear that no such explicit reference existed in the Constitution, such that, ultimately, the divergence between the ruling and the dissenting opinions seems to lie less on that dichotomy than on the question as to how indirectly a right or interest might be derived from the Constitution and still be possible to consider constitutionally grounded.

Indeed, the ruling examines a number of possible ways in which the Constitution might be deemed to indirectly accommodate a norm that sanctions with deprivation of liberty the conduct of maltreating companion animals, namely the following.

a) EU law. – In the first place, the ruling briefly examined whether Article 13 of the Treaty on the Functioning of the European Union might be called into play. It provides that: “In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.”

As follows from its wording, this provision applies only to the policies of the EU in specific fields, as in fact has been emphasised by the Court of Justice itself, in Jippes and others v. Minister van Landbouw, Natuurbeheer em Visserij (C-189/01) (paras. 71 ff.). In contrast, the national norm criminalising maltreatment of companion animals not only has a completely different purpose but also excludes from its scope some of those very types of activities to which the EU law provision applies, such as agriculture and fisheries.

b) The protection of the environment. – Article 9 (e) of the Portuguese Constitution establishes as a fundamental duty of the State “to defend the nature and the environment” and “to preserve natural resources”. Moreover, Article 66 of the Constitution enshrines a right to the environment within its chapter on “social rights and duties”.

The Court noted that, while those provisions obviously protect animals to a certain extent, they do so only collaterally. Not as collaterally as in the offence of damage, mentioned above, but collaterally nevertheless: they protect animals because animals are an integral part of the environment, but they do not protect animals regardless of their relevance to the environment. In other terms: protection is provided to the environment in a holistic manner, but not to the individual elements that form it. The Court then illustrates that, while those provisions might grant protection to a single animal or to a single tree, they will be doing so not because that animal or that tree are deemed relevant in themselves. Rather, they will only be protected insofar as protecting them (for instance, because they are specimens of an endangered species) is relevant to the environment as a whole, as a “balanced ensemble of ecosystems”. In fact, this kind of collateral protection of animals as a part of the environment and to the extent of their relevance for the environment is already provided by the Penal Code in Article 278 (damages against nature), which raises no constitutionality issues in this regard.

The ruling went further on to note that this holistic protection of the environment not only cannot encompass the protection of animals individually considered, as intrinsically valuable beings, but in fact may be instrumentalised to the opposite purpose, if sacrificing animals proves necessary to ensure such a ‘balance of the ecosystem’. As noted by Galvão (2011, p. 21, quoted in the ruling), this is in fact a line of criticism that even some of the main advocates for animal welfare cast upon holistic ethics theories, which grant prevalence to the ecosystem as a whole in detriment of the individual parts that form it. And as noted by Greco (2010, p. 52 f., also quoted in the ruling), to derive the protection of animals as individuals from the protection of the environment as a whole is in fact tantamount to “falsifying the content of cruelty towards animals”. The Court then adds: “The legislative impetus towards punishing such cruelty does not stem from the purpose of protecting the environment (although this purpose is absolutely pressing), but from that of protecting animals as beings intrinsically worthy of consideration” (para. 12); of protecting them individually, based on an acknowledgment of their autonomous relevance.

To maltreat an animal – the ruling further states at one point (para. 17) –, “hideous though it is”, does not even endanger (let alone damage) the ecosystem, which leads the Court to also rule out the view that construes the maltreatment of animals as an offence of abstract endangerment the ultimate goal of which would be to protect the environment as a whole. Were this the case, the link between the prohibited conduct and the protected legal interest would in any event be too feeble and remote for sustaining a sanction like deprivation of liberty.

Finally – the Court moreover added, although seemingly more in supplement to the foregoing reasoning than as a further, self-standing argument –, were the holistic protection of the environment indeed the basis of this offence, then it would be difficult to understand why the legislator chose to protect companion animals only, thereby excluding other animals with comparable biological characteristics, for instance with comparable “neurological substrates” (in the expression of the 2021 Cambridge Declaration on Consciousness, quoted in the ruling). Why then would the offence be designed by reference to a given relationship (of ‘companionship’) between certain animals and human beings?

c) An articulation between the protection of the environment and human dignity – Somewhat ironically – the Court proceeded –, in an anthropocentric constitutional setting, the fact that the offence is designed by reference to that relationship offers “the most plausible” way for justifying it. Within a line of understanding that interweaves the holistic protection of the environment (Article 66) and the principle of the human dignity (Article 1), the offence would not be essentially grounded either on the intrinsic value of animal welfare or on the relevance of animals to the ecosystem, but rather – to put it roughly – in their importance for human beings.

However, since one of those elements (the holistic protection of the environment) has been ruled out as a possible constitutional basis for this offence, the other element (human dignity) would have to be able to accomplish the task alone. And the notion that human dignity could serve as a self-standing basis for a criminal offence – for any criminal offence – is one that the Court also dismissed rather assertively. As already upheld in previous rulings, human dignity is an overly abstract concept which normally cannot even function as a source of subjective individual rights. Much less could it be the source of restrictions to those very rights.

In the words of the Report of the Delegation of the Portuguese Constitutional Court to the 9^th Trilateral Conference (Italy, Portugal and Spain – 2007, p. 2, quoted in the ruling), “human dignity is at once something more and something less than a right”; it “confers unity and coherence on the constitutional system as a whole, assisting in its interpretation” – hence the fact that it is enshrined in the Portuguese Constitution (unlike the case in other Constitutions) as a fundamental principle, rather than as a fundamental right. In view of its high subjectivity, drawing rights or restrictions of rights from it alone would come at an equally high risk of arbitrariness. As noted in the ruling no. 134/2020, using this principle as a basis for criminal offences might actually enable an instrumentalization of the individual in favour of communal goals, which is precisely what the principle of human dignity is from the outset supposed to prevent, “however benign those goals might presumably be”.

d) Direct extension of the principle of human dignity to animals. – Much less could the principle of human dignity, as things stand, be directly extended to animals: Article 1 of the Portuguese Constitution is – in its wording, spirit and history – exclusively dedicated to the dignity of human beings.

That animals may be regarded as holders of an intrinsic dignity somehow comparable to that of human beings – the Court noted, recalling authors such as Peter Singer and Tom Regan – is certainly the idea that underpins several theories in favour of further protection of animal welfare. However, then again, it is not for the Court to take a stance on those views, but simply to ascertain whether they have been given any expression in the Portuguese Constitution.

e) Protecting feelings of compassion of human beings towards animals. – Yet another line of argumentation (also anthropocentric in character) that has been dismissed by the Court is that which conceives of the offence of animal maltreatment as a means for protecting legitimate feelings of human beings.

On this conception, the Court noted that it would “throw open the doors of penal law (…) to moralism” (para. 15), allowing for the criminalisation of certain human behaviours based exclusively on the fact that they may be regarded as morally wrongful or indecent. In order for human feelings to be ‘legitimate’ (and hence deserving of penal protection), they must refer to a legal interest that has itself been constitutionally acknowledged as deserving of protection.

If and when animal welfare does receive such an acknowledgement, then perhaps human feelings of repudiation of animal cruelty could legitimise such a criminal offence. However, if and when that comes to occur, animals would no longer need to be protected in the name of human feelings, since they could then be protected in the name of the actual reason that makes such a protection worthwhile: the intrinsic value of their welfare. Meaning, then again, that this value would have to be enshrined in the Constitution.

4.2. Conclusion of the ruling – In view of the above, the Court found that it had “inevitably” to conclude that there is no constitutional basis for criminalising maltreatment of animals. Such a conclusion “should not be taken to mean that the Portuguese Constitution is structurally opposed to criminalising such a conduct”, but “simply that it does not, as it currently stands, provide the necessary basis for that” – and “the Constitution as it currently stands is the parameter that the Court is bound to apply” (para. 19).

4.3. The dissenting opinions. – Both dissenting opinions appear to agree with substantial parts of the above reasoning. In particular, both convey that the protection of the environment enshrined in Article 66 of the Constitution is of no avail here. This is quite meaningful, because at the outset the protection of the environment would arguably be the strongest constitutional basis for the offence.

However, as noted before, both opinions deemed the view expressed in the ruling to be overly attached to the wording of the Constitution, and both put forward alternative views that would secure the conformity of the offence with the Constitution insofar as the legal interest issue is concerned.

a) Solidarity. – The first opinion attached to the ruling – by Judge Joana Fernandes Costa – begins by noting that, while the axiological framework of the Constitution “is not entirely open” to the evolution of the values cherished by the society (as this would render it “an instrument for the legitimation of criminal offences based on mere propositions of the majority”), it “is not a fixed normative framework either”; it is not “entirely closed (…) to the evolution of society itself”.

The opinion upholds that the protection of the welfare of companion animals through criminal law finds its justification, “not so much (or not only) in the fact that they generally belong to the category of sentient animals (…), but in the type of relationship that humankind has established with them”: by removing them from their “natural circuit of life”, it has subjected them to a “process of continuous vulnerabilisation which radically diminished their possibility to tend to their own welfare with independence and autonomy”. It is within this “relationship of existential dependency”, which has raised a sort of “duty of care” of humankind towards animals, that the offence is to be understood.

And within this understanding the offence could find sufficient support in the duty of the State to promote the development of a solidary society – a duty enshrined in Article 1 of the Constitution (the same provision that enshrines the principle of human dignity) – without neglecting the constitutional principle of the protected legal interest or incurring the risk of criminalisation based on exclusively moral or ideological propositions.

b) Human dignity (alternative view). – The second opinion attached to the ruling – by Judge Gonçalo de Almeida Ribeiro – grounds the offence in the principle of human dignity, though not in the same terms addressed above.

Drawing on a “material” (as opposed to a “procedural”) conception of the normative strength of the Constitution, it upholds that, in the same way as the Constitution opens itself to fundamental rights enshrined in other legal instruments (Article 16) and provides for the application of the constitutional regime of rights, liberties and freedoms to other, analogous fundamental rights enshrined in the Constitution (Article 17), so too is it possible to consider rights and interests enshrined in other legal sources, or derived from constitutional principles, to be ‘constitutionally protected’, insofar as they are traceable to the axiological roots of human dignity enshrined in Article 1 of the Constitution.

It is the “singular capacity” that human beings have of “inhabiting a universe of values” that enables them to “recognise the sensitivity and vulnerability of animals and to assign them functions and interests”. The principle of human dignity thus operates “not just in the relations of the individual with other individuals (…), but also in the relations of the human being with the other sentient beings – an assumption of responsibility by the human being towards the animals, whose interests only the former has the ability to recognise”.

Within this understanding of human dignity as a “jurisgenetic principle”, an enshrinement of animal welfare protection in the Constitution would not be creating an otherwise inexistent constitutional legal interest, but simply rendering explicit an interest that can already be drawn from the present Constitution.

c) Legality principle. – Both dissenting opinions did however consider the offence established in Article 387 of the Penal Code (in conjunction with the definition of companion animal provided for in Article 389) to be unconstitutional on the grounds that it was insufficiently precise, given the use of such expressions as “any animal held or destined to be held by human beings”, “inflicting pain, suffering or any other type of maltreatment”, and “without a legitimate reason”.

Both concluded that the offence did not comply with the nullum crimen principle, in its dimension of determinability of the prohibited conduct. In this sense, albeit for (significantly) different reasons, all 5 judges held the offence to be unconstitutional.

On the other hand, the fact that the ruling did not address the nullum crimen issue does not necessarily mean that the 3 judges that formed that majority would find no violation of this principle had they addressed it. Since this majority concluded that there is no constitutionally protected legal interest capable of basing the offence, further analysis might simply have been deemed unnecessary – or even inadequate, if one assumes that only upon establishing which legal interest is protected by a criminal offence can its sufficient determinability be properly appraised.

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The Ruling of the Portuguese Constitutional Court no. 867/2021 was taken in a context of concrete constitutionality review (see supra, Introduction), which means that it does not produce erga omnes effects. It only reverts the specific judicial decision that had been appealed from, and judicial courts can continue to apply the offence.

Likewise, a different composition within the Court might still come to adopt an opposite understanding, in which case the Plenary (i.e. all 13 judges of the Court) should be called upon to settle the conflicting jurisprudence (Article 79-D of the Law no. 28/82, of 15 November). If, on the other hand, the offence is held to be unconstitutional in two more concrete cases – regardless of the reasons (protected legal interest, nullum crimen, other) –, the Plenary should arguably also be called upon to intervene (Article 281 (3) of the Constitution), in order to decide whether the offence should be declared unconstitutional with erga omnes effects, and if so on which grounds.

Therefore, much is yet to play out.

Nevertheless, this was the first occasion in which the Court has ruled on the issue, which in itself makes it a meaningful piece of case law. Not only immediately, but also for the appraisal to be carried out by the Court in future cases. And not only for the topic of criminalisation of animal maltreatment, but also for the broader debate on the constitutional limits of the ius puniendi.