1. Introduction
On 23 January 2024, the Portuguese Constitutional Court (in Plenary and in an abstract constitutionality review process) changed its case law regarding the criminalisation of mistreatment of companion animals (Ruling no. 70/2024). Previously, since 2021, the Court has considered in several concrete constitutionality review processes that under the Portuguese Constitution, there is no legitimacy, protected value or legal interest for such incrimination and that its legal features do not comply with the nullum crimen sine lege certa precept.
In Ruling 70/2024, the majority of the Court considered that the protection of animal welfare is part of the Constitution in a material sense. Regarding lex certa, the Constitutional Court ruled - with the casting vote of the President - that the enunciation of the elements describing the penalised conduct and its object does not allow to affirm the indeterminability of the norm that typifies the crime of mistreatment of a companion animal.
The rulings were pronounced by a divided court, with divergent conceptions about Criminal Law, its relationship with the Constitution, and its interpretation of the Constitution
To understand the controversy and the Constitutionality judgment shift, first, the criminalisation of animal mistreatment in the Portuguese legal system is presented and put into context, as well as the previous constitutional case law on the matter. Second, the legal arguments supporting the 2024 ruling and the dissenting votes are described. Finally, the Court precomprehensions that the case law reveals and its relevance are highlighted.
2. The criminalisation of companion animal mistreatment and the Constitutional Court's case law on its unconstitutionality
Act no. 69/2014, of 29 August, was introduced in the Penal Code Title VI on "crimes against companion animals", which criminalises the mistreatment of companion animals (Article 387) and the abandonment of companion animals (Article 288). These are the animals kept or intended to be kept by human beings, namely, in their home, for their entertainment and companionship (Article 389(1)); excluded are the use of animals for agricultural, livestock or agro-industrial purposes and for commercial entertainment or other legally prescribed purposes (Article 389(2)). The crime of mistreatment of companion animals was defined in the following terms (unofficial translation):
“1 - Anyone who, without legitimate reason, inflicts pain, suffering or any other physical mistreatment on a companion animal shall be punished with imprisonment of up to one year or a fine of up to 120 days.//2 - If the facts set out in the previous paragraph result in the death of the animal, the deprivation of an important organ or limb or serious and permanent impairment of its ability to move, the perpetrator shall be punished with imprisonment of up to two years or a fine of up to 240 days.”
The Act no. 39/2020, of 18 August, modified Article 387: typified the death of an animal (in addition to the preterintentional crime that was already provided for), moved the provision for mistreatment to paragraph 3 and established minimum penal limits. The current version of Article 387 is as follows (unofficial translation):
“1 - Anyone who kills a companion animal for no legitimate reason shall be penalised with imprisonment from 6 months to 2 years or a fine of 60 to 240 days if a more serious penalty is not imposed by another legal provision. 2 - If the death is caused in circumstances that reveal special censurability or perversity, the maximum penalty referred to in the previous paragraph shall be increased by one third. 3 - Anyone who, without legitimate reason, inflicts pain, suffering or any other physical abuse on a companion animal shall be punished with imprisonment from 6 months to 1 year or a fine of 60 to 120 days. 4 – If the facts set out in the previous paragraph result in the death of the animal, the deprivation of an important organ or limb or the serious and permanent impairment of its ability to move, or if the offence is committed in circumstances that reveal special censurability or perversity, the perpetrator shall be punished with imprisonment from 6 months to 2 years or with a fine of 60 to 240 days, if a more serious penalty is not imposed by another legal provision.”
By Ruling no. 70/2024, the Portuguese Constitutional Court considered not contrary to the Constitution the incriminating rule contained in Article 387 of the Penal Code (in the version of the Act no. 69/2014) or the incriminating rule contained in Article 387(3) of the Penal Code (as amended by Act no. 39/2020 of 18 August). The constitutional review process was initiated by the representative of the Public Prosecutor's Office before the Constitutional Court, under the terms of article 82 of the Law on the Organisation, Functioning and Procedure of the Constitutional Court (Law no. 28/82, of 15 November), which makes an abstract review process mandatory whenever a provision has been judged unconstitutional in three concrete review processes.
As mentioned above, there have been several previous concrete constitutionality review processes in which the criminalisation of companion animal mistreatment was judged to be unconstitutional. The first judgment (Ruling no. 867/2021, of 10 November) decided - in a Court composed of 5 judges, by a majority of 3 judges - that the incriminating norm of Article 387.º of the Penal Code (in the wording of Act no. 69/2014) was unconstitutional because it violates, jointly, Article 27.° (right to freedom and security) and Article 18.° (legal force of rights, freedoms and guarantees), number 2, of the Constitution. Essentially, it is considered that there is no explicit or implicit ground for such criminalisation in the Constitution; that the paradigm of modern conceptions of animals and the evolution of their legal protection is not enough to decide otherwise; and that a de lege ferenda debate and a constitutional amendment are necessary.
The Constitutional Court judged again unconstitutional the crime of mistreatment of a companion animal as foreseen in Article 387, paragraphs 1 and 2, of the Criminal Code, in conjunction with its Article 389, paragraphs 1 and 2, both in the wording of the Act no. 69/2014, in Ruling no. 9/2023, on the grounds of indeterminability of the legal type. The judgment of unconstitutionality was repeated by the Ruling no. 217/2023 (on the same grounds as Ruling 867/2021) and by the summary Decisions [consisting of a simple reference to previous case law of the Court] nos. 248/2022, 344/2022, 427/2022, 772/2022, 781/2022, 203/2023 and 251/2023. The same judgment of unconstitutionality was pronounced on the substantially equivalent rule of Article 387(3) of the Criminal Code, in the wording introduced by Law no. 39/2020, by Ruling no. 781/2022 (with the same grounds as Ruling 867/2021) and by Ruling no. 843/2022 (on the grounds of the indeterminability of the legal type) and by summary Decisions no. 786/2022, [referring to Ruling no. 867/2021] no. 13/2023 [referring to Ruling no. 843/2022] and no. 14/2023 [referring to Ruling 867/2021].
Within the framework of this case law, Ruling no. 843/2022 was seen as the antechamber to a declaration of unconstitutionality with general binding force [Article 282 of the Constitution] of the mentioned provisions and, hence, of the crime of mistreatment of companion animals (Cláudia Amorim and Juliana Campos, “Acórdão do TC n.º 843/2022: a antecâmara da declaração de inconstitucionalidade com força obrigatória geral do crime de maus tratos a animal de companhia?”, 2023) The President of the Union of Public Prosecutors, Adão Carvalho, said on 23 January 2023: "It is now up to the Assembly of the Republic to find a legislative solution that is based on a constitutionally relevant legal-criminal interest and to provide effective protection for the life and physical integrity of animals."
The decisions of the Constitutional Court were widely publicised in the media and not well received (e.g. Natasha Donn, “90.000-strong petition calls for criminalisation of cruelty to ALL animals”, Portugal Resident, 2023; Natasha Donn, “Law against animal abuse at risk”, Portugal Resident, 2023; Euronews Green with Reuters, “Animal rights defenders marched in Lisbon on Saturday against claims the country's pet protection law is unconstitutional”, 2023; DN/Lusa, "’Incompreensível’. Constitucionalistas contestam interpretação do TC sobre maus-tratos a animais”, 2023).
The judgement of unconstitutionality was not convincing enough for the ordinary courts either. For instance, in the Ruling of 19 October 2022 of the Porto Court of Appeal, process no. 10/20.1GEVFR.P1, one of the judges made the following explanation vote:
“I voted for the decision, understanding and adhering to the reasons for it, taking into account the of unconstitutionality expressed in the Constitutional Ruling no. 867/2021, of 10 November, and in the Summary Decision no. 344/2022, of 5 May, given the value of stability and legal certainty, from which it follows that the decision of any dispute must take into account the relevant case law on the same issue.//However, I must note, in all conscience, that I still have doubts about the impossibility of finding a protected legal interest, more convincing than the ones we know today, that would allow us to ‘save’ the constitutionality of the crime of mistreating companion animals” (Manuel Soares, unofficial translation).
3. The ruling that shifted the Constitutional Court's case law
According to the Portuguese Constitution, fundamental rights, freedoms and guarantees may only be restricted “in cases expressly outlined in the Constitution, and such restrictions must be limited to those needed to safeguard other constitutionally protected rights and interests” (Article 18(2)). The deprivation of freedom presupposes “the practice of an act that is legally punishable” (Article 27(2)). The Constitutional Court approach to these articles is grounded on the premise that every criminal offence must be based on a protected legal interest enshrined in the Constitution. As there is no specific provision in the Constitution on the protection, safeguarding and welfare of animals, the divergence of the judges was essentially on “how indirectly a right or interest might be derived from the Constitution and still be considered constitutionally grounded” the crime of mistreatment of companion animals (Miguel João Costa, “Criminalising maltreatment of companion animals”, Sistema Penale, 7 Giugno 2022, p. 6).
In Ruling no. 70/2024, the Constitutional Court considered that the discussion regarding the (in)existence of a constitutional legal interest showed that “the doctrine of the grounds for incrimination is not closed”; that it is possible “to find more ‘orthodox’ approaches to the problem (along the lines of Ruling 867/2021) and other more ‘flexible’ or ‘open’ approaches (examples of which, although different from each other, are the explanations of dissenting vote attached to that ruling and the explanation of vote attached to Ruling 843/2022)”. These studies called on “the care-danger relationship in which man has become invested with regard to the animals he has placed in his care” (Joana Fernandes Costa) and on the “particular dependence and vulnerability of companion animals in relation to human beings” (Gonçalo Almeida Ribeiro) and alleged that in “peripheral criminalisation” (as is the case), opposed to central domains of punishment, the legislator is not prohibited or obliged to act through criminal law because constitutionally relevant values are at stake” (J. A. Teles Pereira), (2.4).
The Court emphasised that, at least among the majority of the Plenary's members, there is “consensus - which appeals to the materiality of the constitutional value, present in the essence of the Fundamental Law, transcending (to the extent possible) the form (or formula) found for its literal positivisation - that prevails and shapes the meaning of th[e] decision” (2.4.4). It is no longer certain that Criminal Law can only be the law of the legal interests enshrined in the Constitution; that the protection of an essential legal interest, whose safeguard is demanded by the global legal order, or transconstitutional references, must be taken into account when interpreting the constitution (2.4.3).
The other ground for unconstitutionality rejected in Ruling no. 70/2024 regarded “the principle of legality [Article 29(1) of the Constitution], as a requirement of a certain law, both in terms of the typical action (‘inflicting pain, suffering or any other physical abuse’ and ‘without legitimate reason’) and the object of the action (‘companion animal’, defined as ‘any animal kept or intended to be kept by human beings [...], for their entertainment and companionship’)” (2.5. ).
The Constitutional Court considered that the notion of "mistreatment" is an indeterminate but determinable concept and that it is clear that it is not possible to inflict physical suffering, for example, causing pain, on a companion animal (2.5.2.1); that “without legitimate reason” is “a clause that is as indeterminate as any generic reference to causes of justification” (2.5.2.2.); and that the concept of a “companion animal” is similar to the concept adopted in several other pieces of legislation (2.5.2.3.), including the European Convention for the Protection of Pet Animals (Article 1(1)), to which Portugal is binding since 1 January 1994.
Several dissenting votes were opposed to the Ruling, arguing against the constitutionality of the criminalisation of mistreatment of companion animals. In synthesis, the following reasons were adduced (unofficial translation):
i) The ruling fails to “indicate the constitutionally protected right or interest (Article 18(2) of the Constitution) that supports the application of a prison sentence”; “Criminal law does not serve to punish indecent, obscene or immoral behaviour; nor does it serve to promote the cultural and civilisational heritage acknowledge by today's society” (Afonso Patrão);
ii) The criminalisation at stake “does not find sufficient support in the current wording of the Constitution of the Portuguese Republic, which is the one binding to the Constitutional Court as a parameter for evaluating the rules approved by the legislature" (Ruling 867/2021, no. 19; José Eduardo Figueiredo Dias and Carlos Medeiros de Carvalho);
iii) The legal feature of the crime does not comply “with the minimum requirements of determinability of the criminal law arising from the principle of legality enshrined in Article 29(1) of the CRP” (Maria Benedita Urbano);
iv) The ruling "does not seek to ascertain whether the simultaneous use of the concepts that it analyses separately gives the incriminating rule, as a result of their sum, an openness that is incompatible with the duty that the Constitution imposes on the legislature to take the description of the prohibited behaviour to the point that is necessary to ensure the 'knowability of which conducts are punishable' (Ruling no. 545/2000)" (Joana Fernandes Costa, Carlos Medeiros de Carvalho, Mariana Canotilho and Gonçalo de Almeida Ribeiro). In addition, “the expansion of the concept of companion animal, already highly indeterminate, by Act 39/2020 through the inclusion of animals ‘subject to registration in the Companion Animal Information System, even if in a state of abandonment or wandering’, has exponentially increased the difficulty of perceiving the scope and purpose of protection of the entire incriminating rule, making it impossible to represent the disvalue of the action that it seeks to express” (idem).
4. The Constitutional Court’s comprehensions and interpretation of the Constitution
“[I]n Portuguese society, the need to protect animals from acts of cruelty, abandonment and ill-treatment has been gaining an increasingly broad consensus”; and “legislation relating to animal welfare has increased, above all, through the application of the European Convention for the Protection of Companion Animals and the transposition of European Union directives” (Recital 2 of the Resolution of the Council of Ministers no. 78/2021, of 25 June, that approved the National Program for Companion Animals). In fact, the autonomous value of animal life and welfare has been recognised and protected by different legislative acts (e.g., Act no. 8/2017, of 3 March, established a legal status for animals, recognising their nature as living beings endowed with sensitivity, and consequently amended different Civil Code articles to reflect it; and Act no. 20/2019, of 22 February, which banned the use of wild animals in circuses by 2024; Teresa Giménez-Candela, “Reforma del Código Civil de Portugal: Los animales como seres sintientes”, Derecho Animal. Forum of Animal Law Studies, 2016, Vol. 7, no. 4, pp. 1-4, https://raco.cat/index.php/da/article/view/349413). A community's conscientiousness about the value of animal life or well-being is not abstract; it has been embedded in legislation and programs of action.
According to Chiesa, the “recent trends in anti-cruelty legislation [in the USA] are difficult to explain unless one believes that the chief purpose of criminalising animal abuse is to prevent the unjustifiable suffering of animals”; these “qualify as victims worthy of being protected by the criminal laws” (“Why Is It a Crime to Stomp on a Goldfish? Harm, Victimhood and the Structure of Anti-Cruelty Offenses", Elisabeth Haub School of Law Faculty Publications, 2008, 480, p. 81, https://digitalcommons.pace.edu/lawfaculty/480). In addition, it could be argued that cruelty against companion animals, with the severity at stake, is an antithesis of what a human person should be for a constitution.
From 2021 until 2024, the Constitutional Court judged contrary to the Constitution the criminalisation of mistreatment of companion animals. In 2024 (Ruling 70/2024), it decided differently. The argumentative path focused on the question of whether the Constitution protects the welfare of companion animals and recognises their value as being worthy of criminal protection against mistreatment, on the premise that “the only authority that prevails over the legislature's powers to enact criminal prohibitions” is the Constitution (in accordance with the Roxin conception – Jannemieke W. Ouwerkerk, “Old wine in a new bottle: Shaping the foundations of EU criminal law through the concept of legal interests (Rechtsgüter)”, European Law Journal, 2021, 27(4-6), p. 437. doi:10.1111/eulj.12447). The Court admitted that the doctrine of protected legal interests was not exempt from criticism, without, however, abandoning it, affirming that the majority of judges in one way or another agreed that the Constitution materially acknowledged the value of protecting animals as deserving fundamental protection in themselves.
The Constitutional Court, for instance, disregarded the possible relevance of the harm principle (e.g., Luis E. Chiesa, "Why Is It a Crime to Stomp on a Goldfish?, Harm, Victimhood and the Structure of Anti-Cruelty Offenses", Elisabeth Haub School of Law Faculty Publications, 2008, 480 https://digitalcommons.pace.edu/lawfaculty/480; Proshanti Banerjee, The Harm Principle at Play: How the Animal Welfare Act Fails to Protect Animals Adequately, University of Maryland Law Journal of Race, Religion, Gender and Class, 2015 15(2), pp 361-385, http://digitalcommons.law.umaryland.edu/rrgc/vol15/iss2/10); its reconciliation with the theory of protected interests (Sanne Buisman, “The Future of EU Substantive Criminal Law: Towards a Uniform Set of Criminalisation Principles at the EU level”, European Journal of Crime, Criminal Law and Criminal Justice, 2022, 30(2), p. 165 [“Criminal law is legitimate if criminalisation aims to protect against (potentially) harmful conduct that wrongfully breaches a legal interest”], https://brill.com/view/journals/eccl/30/2/article-p161_004.xml); or even a merging of the rechtsgut theory, the offensività principle, and the harm principle (Lucille Micheletto, “Towards an Integrated (and Possibly Pan-European?) Prima Facie Legitimacy Test: Merging the Rechtsgut Theory, the Offensività Principle, and the Harm Principle”, European Journal of Crime, Criminal Law and Criminal Justice, 2021, 29(3-4), pp. 241-263, https://doi.org/10.1163/15718174-bja10025; and idem, Assessing Hate Crime Laws: A Multidisciplinary Perspective, Palgrave McMillan, 2023, pp. 79-84).
On the other hand, the Constitutional Court considers that the legal interests worthy of protection in Criminal Law must always be identified in the Constitution, even if indirectly and even through its openness to International Law and, necessarily, to European Law (e.g., Article 7(5) and 6, Article 8, and Article 16). It demonstrated to be aware of the sociolegal context in which it is called upon to decide (bearing in mind that there are “adjustments and alignments to … reality [that] are carried out by political forces and social interpreters, the medial public and the citizens themselves” - Hans Vorländer, “Constitutions as Symbolic Orders. The Cultural Analysis of Constitutionalism”, in Paul Blokker and Chris Thornhill, Sociological Constitutionalism, Cambridge, Cambridge UP, p. 216), but it did not mention the relevant evidence existent on the matter (e.g. Diana Araújo et al., “Characterization of Suspected Crimes against Companion Animals in Portugal”. Animals (Basel), 2021, 11(9), pp. 1-14, doi: 10.3390/ani11092744). This evidence, together with the insufficient response of civil and administrative responses to human cruelty against animals (e.g., Helena Correia Mendonça, “Recognising sentience in the Portuguese Civil Code”, Derecho Animal: Forum of Animals Law Studies, Vol. 8, Nº 2, 2017, pp. 1-10) should have also been weighted.
The Portuguese Constitutional Court centred the discussion on whether there is a constitutional legal good “deserving penal protection”, without having embracing principles, “such as a fair balancing between opposite interests (especially between constitutional interests and rights)[*], strict necessity and last resort, the proportion between costs and benefits of criminalisation, the adequacy of criminalisation as a means to achieve the purposes pursued by the legislator and the fact that” (Lorenzo Pasculli, “Harm, Offence and Offesa in the English and the Italian Criminal Law. For a Constitutionalisation of a Unitary Principle of Harm in the English Legal System, Also as Criterion of Judicial Interpretation”, Diritto Penale, XXI Secolo 2 (2016) 302-349, p. 334, https://ssrn.com/abstract=3216484).
Concerning the principle of criminal legality (lex certa), the Constitutional Court highlighted that the assessment of compliance implies “a delicate balance, particularly in the case of concrete review, in order not to interfere with the court's task of interpreting and applying the law” (2.5.1., § 4), which to the same extent invokes the ideia of “offensività in concreto” (e.g., Italian Corte costituzionale, Ruling no. 263/2000, 11.07).
In summary, the Portuguese Constitutional Court case law regarding the criminalisation of companion animals shows that bringing the Portuguese Constitution “into line with contemporary reality by way of interpretation” (Vorländer, “Constitutions as Symbolic Orders. (…)”, cit., p. 217) was a difficult process and that decisions of constitutional adjudication can be “more critical for articulating constitutional identity than the constitutional legislation itself” (Červinka, “Constitutions as Mediums of Collective Identities”, German Law Journal, 2024, p. 5. doi:10.1017/glj.2024.8). Lukáš Lev Červinka observes that “[w]hen we think about constitutions, we tend to see them predominantly through the normative lens of legality, forgetting about the social implications of constitutions and the lives thereof” (“Constitutions…”, cit., p. 1). In the case law under comment, the normative lens was also problematic. This does not mean that a creative interpretation was needed. The parameters for resolving legal-constitutional issues are not confined to a single fundamental law (the national Constitution) but rather plural, coming from different sources, and resolving them involves weaving together these various parameters. Otherwise, the community for which the Constitution exists will not be convinced by the Constitutional Court rulings.