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Ritual Slaughter K 52/13

 

 

JUDGMENT

of 10 December 2014

Ref. No. K 52/13*

 

In the Name of the Republic of Poland

 

The Constitutional Tribunal, in a bench composed of:

 

Andrzej Rzepliński – Presiding Judge

Stanisław Biernat

Zbigniew Cieślak

Maria Gintowt-Jankowicz – Judge Rapporteur

Mirosław Granat

Wojciech Hermeliński

Leon Kieres

Teresa Liszcz

Małgorzata Pyziak-Szafnicka

Stanisław Rymar

Piotr Tuleja

Sławomira Wronkowska-Jaśkiewicz

Andrzej Wróbel

Marek Zubik,

 

Krzysztof Zalecki – Recording Clerk,

 

having considered – at the hearings on 3 and 10 December 2014, in the presence of the applicant, the Sejm and the Public Prosecutor-General – the application submitted by the Association of Jewish Religious Communities in the Republic of Poland to determine the conformity of:

 

1)       Article 34(1) and (3) as well as Article 35(1) and (4) of the Animal Protection Act of 21 August 1997 (Journal of Laws ‑ Dz. U. of 2003 No. 106, item 1002, as amended), insofar as they do not permit subjecting animals to particular methods of slaughter, prescribed by religious rites of religious organisations with a regulated legal situation, and provide for criminal liability of persons who carry out such slaughter,

 

2) Article 34(1) and Article 34(3), in conjunction with Article 6(1) of the Act referred to in point 1, insofar as they do not mention particular methods of slaughter – prescribed by religious rites of religious organisations with a regulated legal situation – among circumstances warranting the slaughter of vertebrate animals without prior stunning,

 

–    to Article 53(1), (2) and (5) as well as Article 35(1) in conjunction with Article 31(3) of the Constitution in conjunction with Article 9(1) and (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950 (Journal of Laws – Dz. U. of 1993 No. 61, item 284, as amended), as well as to Article 32(1) and (2) of the Constitution in conjunction with Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms,

 

adjudicates as follows:

 

1. Article 34(1) of the Animal Protection Act of 21 August 1997 (Journal of Laws – Dz. U. of 2013 item 856) – insofar as it does not permit subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites is inconsistent with Article 53(1), (2) and (5) of the Constitution of the Republic of Poland in conjunction with Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws – Dz. U. of 1993 No. 61, item 284, of 1995 No. 36, item 175, 176 and 177, of 1998 No. 147, item 962, of 2001 No. 23, item 266, of 2003 No. 42, item 364 as well as of 2010 No. 90, item 587).

 

2. Article 35(1) and Article 35(4) of the Act referred to in point 1 – insofar as they provide for criminal liability for subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites are inconsistent with Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

Moreover, the Tribunal decides:

 

pursuant to Article 39(1)(1) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws - Dz. U. No. 102, item 643, of 2000 No. 48, item 552 and No. 53, item 638, of 2001 No. 98, item 1070, of 2005 No. 169, item 1417, of 2009 No. 56, item 459 and No. 178, item 1375, of 2010 No. 182, item 1228 and No. 197, item 1307 as well as of 2011 No. 112, item 654), to discontinue the proceedings as to the remainder.

 

 

STATEMENT OF REASONS

 

[…]

 

 

III

 

The Constitutional Tribunal has considered as follows:

 

1. The subject and scope of the review

 

1.1. While adjudicating, the Tribunal is bound by the limits of an application, a question of law or a complaint (Article 66 of the Constitutional Tribunal Act of 1 August 1997; Journal of Laws – Dz. U. No. 102, item 643, as amended; hereinafter: the Constitutional Tribunal Act). A request formulated in a given application – with indicated challenged provisions and relevant higher-level norms for review, as well as justification for allegations raised – sets the scope of adjudication for the Tribunal in a particular case, beyond which the Tribunal is not allowed to venture (Article 7 of the Constitution). Hence, in constitutional review proceedings, the starting point is to determine the subject and scope of the Tribunal’s adjudication.

1.2. In the present case, the applicant, i.e. the Association of Jewish Religious Organisations in the Republic of Poland, in point 1 of the petitum of the application, challenges the following provisions: Article 34(1) and (3) as well as Article 35(1) and (4) of the Animal Protection Act of 21 August 1997 (Journal of Laws – Dz. U. of 2013, item 856; hereinafter: the Animal Protection Act).

Paragraphs 1 and 3 of Article 34 of the Animal Protection Act read as follows: “1. Vertebrate animals may be killed in a slaughterhouse only after being stunned by competent persons. (…) 3. In the case of domestic slaughter of animals, ungulates may be killed only after being stunned by a competent slaughterer”.

Pursuant to Article 35(1) and (4) of the said Act: “1. Whoever kills or slaughters an animal in breach of the provisions of Article 6(1), Article 33 or Article 34(1)-(4) shall be subject to a fine, or the penalty of the limitation or deprivation of liberty for up to 2 years. (…) 4. In the event a person is convicted of the offence specified in para 1, 1a or 2, the court may prohibit the perpetrator from performing a certain occupation, conducting particular economic activity or carrying out activities that require a permit, and which involve or affect animals, as well as the court may rule the forfeiture of tools or objects used for the commission of the offence and of objects obtained as a result of the offence”.

The Association indicates that it questions the challenged provisions, insofar as they do not permit subjecting animals to particular methods of slaughter, prescribed by religious rites of religious organisations with a regulated legal situation, and provide for criminal liability of persons who carry out such slaughter.

Slaughter carried out in accordance with particular methods prescribed by religious rites, due to its religious character, is usually referred to as “ritual”. Ritual slaughter has been performed for centuries by the followers of Judaism (the so-called shechita) and Islam (the so-called “halal slaughter”), and the purpose of and rules for carrying out such slaughter are specified by relevant norms of religious and customary law. One of the common characteristics of slaughter performed in accordance with the precepts of Judaism and Islam is that it constitutes a rite in the course of which – so as to obtain (kosher) meat that is acceptable for consumption – an animal may not be stunned before slaughter.

Challenged Article 34(1) and Article 34(3) of the Animal Protection Act – by requiring “the induction of unconsciousness”, and more precisely (in accordance with the legal definition included in Article 4(6) of the said Act) the “stunning” of a vertebrate animal before slaughter in a slaughterhouse and of an ungulate before domestic slaughter – provide for no derogation that would permit subjecting an animal to particular methods of slaughter prescribed by religious rites (i.e. without prior stunning). Consequently, Article 34(1) and Article 34(3) of the said Act imply a ban on ritual slaughter that is absolute in character (i.e. it permits no derogation). By contrast, challenged paragraphs 1 and 4 of Article 35 of the said Act establish criminal sanctions, inter alia, for a breach of that ban.

 

1.3. In the petitum of its application, the Association challenges, within a specified scope, Article 34(3) of the said Act, which stipulates that, “in the case of domestic slaughter of animals”, ungulates may only be killed after the induction of unconsciousness by a competent slaughterer. However, arguments in support of this allegation, presented in the application, focus on the ban on ritual slaughter in a slaughterhouse, which arises from Article 34(1) of the said Act. When justifying this allegation, the Association does not refer in detail to the content of Article 34(3) of the said Act, and, in particular, it does not discuss the meaning of the term ‘domestic slaughter of animals’. Nor does the Association analyse the normative significance of the provision in the light of the Council Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing (OJ L 303 of 18.11.2009, p. 1; hereinafter: the Council Regulation (EC) No. 1099/2009), which has been directly applied since 1 January 2013.

Taking the above into consideration, the Constitutional Tribunal deems that, contrary to the requirements provided for in Article 32(1)(4) of the Constitutional Tribunal Act, the Association has not justified the allegation that the indicated higher-level norms for the review are infringed by Article 34(3) of the Animal Protection Act, within the scope delineated in the application. Consequently, the Tribunal is obliged to discontinue the review proceedings within that scope on the basis of Article 39(1)(1) of the Constitutional Tribunal Act.

Nevertheless, the content of Article 34(3) of the Animal Protection Act is not irrelevant as regards the effects of the judgment in the present case (see part III point 11 below). In this provision, the legislator has regulated ‘domestic slaughter of animals’, without defining the meaning of the term. This leads to interpretative doubts, as the term does not appear in the other provisions on animal slaughter in domestic law or the EU provisions on the killing and slaughter of animals. A similar term is used in the Act of 16 December 2005 on Products of Animal Origin (Journal of Laws ‑ Dz. U. of 2014 item 1577; hereinafter: the Act on Products of Animal Origin). Article 17 of the Act strictly specifies cases in which the slaughter of farmed animals is permissible outside a slaughterhouse. Within the meaning of Article 17(1a) of the Act: “For the purpose of producing meat for private domestic consumption, it shall be permissible, within the borders of a farm, to slaughter the following: calves up to 6 months old, pigs, sheep, goats, poultry and farmed game animals”. Thus, one should assume that the term ‘slaughter within the borders of a farm for the purpose of producing meat for private domestic consumption’ – the permissibility of which is regulated in Article 17(1a) of the Act on Products of Animal Origin – corresponds to the term ‘domestic slaughter of animals’, the methods of which are referred to in Article 34(3) of the Act. Consequently, the domestic slaughter of animals is permissible only in strictly specified circumstances as well as it may only take place for the purpose of producing meat for private domestic consumption (i.e. to meet one’s own needs – see Article 5(1a) of the Act on Products of Animal Origin; “private domestic consumption” – see Article 10 of the Council Regulation (EC) No. 1099/2009).

Article 34(3) of the Animal Protection Act, by specifying requirements for carrying out animal slaughter in the context of the said domestic slaughter, addresses the subject-matter which, since 1 January 2013, has also been regulated by Article 10 of the Council Regulation (EC) No. 1099/2009. The last-mentioned provision stipulates that only the requirements of Articles 3(1), 4(1) and 7(1) of the Council Regulation “shall apply to the slaughtering of animals, other than poultry, rabbits and hares, and the related operations outside of a slaughterhouse by their owner or by a person under the responsibility and supervision of the owner, for private domestic consumption”.

The Tribunal has noted that Article 34(3) of the Animal Protection Act sets a standard which is, in its substance, concurrent with the one provided for in the Council Regulation – Article 10 in conjunction with Article 4(1) (the requirement of stunning animals prior to slaughter) and Article 7(1) (the requirement that slaughter may only be carried out by persons with the appropriate level of competence). Both Article 34(3) of the Animal Protection Act and Article 10 of the Council Regulation, in the context of the domestic slaughter of animals, do not require the stunning of poultry, rabbits and hares, i.e. unguiculates. At the same time, the provisions require that persons with the appropriate level of competence should stun ungulates (e.g. cattle, sheep and goats), and this way they do not permit the domestic slaughter of those animals performed in accordance with particular methods of slaughter prescribed by religious rites. However, the wording of Article 34(3) of the Animal Protection Act clearly differs from the wording of Article 10 of the Council Regulation (EC) No. 1099/2009. Linguistic differences between the wording in the said provisions are enhanced by a different normative context in which the said provisions have been placed (the general provisions of the Animal Protection Act versus the detailed provisions of the Council Regulation (EC) No. 1099/2009, which permit ritual slaughter in a slaughterhouse). Consequently, the Tribunal concludes that Article 34(3) of the Animal Protection Act has not been adjusted to the Council Regulation (EC) No. 1099/2009, which may pose difficulties for the addressees of the legal norms.

1.4. In point 2 of the petitum of the application, as the subject of the review, the Association again indicates Article 34(1) and (3) of the Animal Protection Act – this time in conjunction with Article 6(1) of the Act. The last-mentioned provision reads as follows:

“1. The killing of animals shall be prohibited, except for:

1) the slaughter and killing of farmed animals as well as the killing of farmed game birds and mammals kept by people for the purpose of obtaining meat and skin or fur;

2) fish catches in compliance with regulations on fisheries and inland fishing;

3) emergency killing of animals;

4) necessary action aimed at eliminating a serious sanitary threat to people or other animals;

5) the elimination of those animals which pose a direct threat to people or other animals, if a different way of eliminating the threat is not possible;

6) hunting activities, the culling of game animals and related operations for the purpose of depopulation;

7) the putting down of litters of newborn animals;

8) action prohibited with regard to protected species specified in the Nature Protection Act of 16 April 2004 (Journal of Laws – Dz. U. of 2013 items 627, 628 and 842), carried out on the basis of relevant permits;

9) the killing of non-indigenous species which pose a threat to indigenous species or natural habitats within the meaning of the Nature Protection Act of 16 April 2004, carried out in accordance with Article 33 as well as separate provisions”.

Article 6(1) is one of the general provisions of the Animal Protection Act, included in the first chapter of the Act. The provision introduces a prohibition against killing animals as well as provides for exceptions thereto (Article 6(1)(1)‑Article 6(1)(9) of the Animal Protection Act). The said exceptions, in the first place, provide in general terms for the slaughter of farmed animals, i.e. the killing of those animals for the purpose of obtaining food for human consumption (Article 6(1)(1) of the Animal Protection Act). Article 6(1) of the said Act specifies neither methods of slaughter nor conditions in which slaughter may be carried out. The said provision (in fine) indicates that the slaughter and killing of animals are to be carried out in accordance with special provisions.

However, in point 2 of the petitum of its application, the Association points out that it challenges Article 34(1) and (3) of the Animal Protection Act in conjunction with Article 6(1) of the Animal Protection Act “insofar as they do not include particular methods of slaughter –prescribed by religious rites of religious organisations with a regulated legal situation – among circumstances warranting the slaughter of vertebrate animals without prior stunning”.

Reasons given in the Association’s submission clearly show that the Association does not challenge the scope within which the above exceptions to the prohibition against killing animals, provided for in Article 6(1) of the Animal Protection Act, are to be applied. When challenging the inadmissibility of one method for slaughtering farmed animals (a method prescribed by religious rites), the applicant argues that the said method should be included in the list of exceptions indicated in that provision. Thus, the Association fails to notice that Article 6(1) of the Animal Protection Act is general in character, and that the methods of slaughter have been regulated by the Polish legislator in chapter 10 of the Animal Protection Act, entitled “Slaughter, Killing and Depopulation of Animals”, in which challenged Article 34(1) and Article 34(3) are included.

Consequently, in point 2 of the petitum of its application, the Association challenges, in conjunction with other provisions, not so much the current wording of Article 6(1) of the Animal Protection Act, but the fact that the legislator has not included additional regulations there that the Association perceives as desirable. What follows from the Association’s arguments for its application is that, according to the Association, ritual slaughter – due to its significance in the context of respect for the freedom of religion (belief) – should not only be deemed permissible in Article 34 of the Animal Protection Act, but it should also be regulated in Article 6(1) of the said Act as a special exception to the prohibition against killing animals (see pp. 28-29 of the application). However, this request in the application goes beyond the ambit of the jurisdiction assigned to the Constitutional Tribunal, which has been established to adjudicate on the hierarchical conformity of legal norms, and not to supplement legal provisions with content proposed by applicants (see e.g. the judgments of the Constitutional Tribunal of: 19 November 2001, ref. no. K 3/00, OTK ZU No. 8/2001, item 251, part V, point 5 of the statement of reasons; 9 December 2003, ref. no. P 9/02, OTK ZU No. 9/A/2003, item 100, part III, point V of the statement of reasons).

For the above reasons, it is necessary to discontinue the review proceedings as regards the allegation about the infringement of the indicated higher-level norms for the review by Article 34(1) and (3) in conjunction with Article 6(1) of the Animal Protection Act (within the scope indicated in point 2 of the petitum of the application), on the basis of Article 39(1)(1) of the Constitutional Tribunal Act on the grounds that issuing a ruling is inadmissible.

 

1.5. What unambiguously follows from the petitum and the justification for the application is that the Association has indicated, as a basic higher-level norm for the review, the provisions of Article 53(1), (2) and (5) of the Constitution, which guarantee the freedom of religion and lay down grounds for any restriction thereof. The Association has indicated the said higher-level norm for the review in conjunction with the provisions of Article 9(1) and (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950 (Journal of Laws – Dz. U. of 1993 No. 61, item 284, as amended), which also guarantee the freedom of religion (belief) as well as specify grounds for restricting that freedom, which are equivalent to those set out in Article 53(5) of the Constitution. The Association has also linked Article 53(1), (2) and (5) of the Constitution with Article 31(3) of the Constitution, which lays down general grounds for introducing limitations to the exercise of constitutional rights and freedoms.

To strengthen its arguments, the Association has supplemented its basic higher-level norm for the review – namely, Article 53(1), (2) and (5) of the Constitution – with the other higher-level norms for the review mentioned in the petitum, i.e. Article 35(1) in conjunction with Article 31(3) of the Constitution (which are higher-level norms concerning the freedom of Polish citizens belonging to national or ethnic minorities to maintain and develop their own language, to maintain customs and traditions, and to develop their own culture, as well as possible restrictions that may be imposed in this respect), and also Article 32(1) and (2) of the Constitution in conjunction with Article 14 of the Convention (higher-level norms pertaining to the principle of equality before the law and the prohibition of discrimination).

 

1.6. The Tribunal’s analysis of the application leads to the conclusion that, in the present case, the applicant requests the Tribunal to determine the following vital issue: whether in the light of the freedom of religion (belief) – enshrined in Article 53 of the Constitution and Article 9 of the Convention – it is admissible to have an absolute ban on animal slaughter by methods prescribed by religious rites, where any violation of the ban entails criminal sanctions.

The essence of this constitutional issue is expressed in point 1 of the petitum of the application, which indicates four passages of the Animal Protection Act that vary in their normative content and functions (two provisions laying down requirements, and two provisions introducing sanctions). Despite their extensive normative content, the applicant has challenged them only insofar as they jointly prohibit and penalise subjecting animals to particular methods of slaughter prescribed by religious rites. The petitum of the application cites verbatim the wording of the resolution of 27 August 2013 by the Management Board of the Association of Jewish Religious Organisations in the Republic of Poland (ref. no.  2/2013), the execution of which entailed filing the application. The said resolution binds the applicant’s lawyer also when it comes to formulating justification for the application (see e.g. the decisions of the Constitutional Tribunal of: 22 December 2008, ref. no. Tw 35/08, OTK ZU No. 6/B/2008, item 220; 7 December 2010, ref. no. Tw 37/10, OTK ZU No. 6/B/2010, item 406).

The Constitutional Tribunal states that the justification for the application fully confirms the way in which the main allegation of the non-conformity of the statutory solution to the higher-level norms for the review is presented in the petitum. The applicant’s arguments consistently focused on juxtaposing the absolute ban on ritual slaughter in a slaughterhouse with numerous aspects of the freedom of religion. When justifying its application, the Association does not analyse in detail the substance of the challenged provisions. What the applicant has left out of the analysis is, inter alia, paragraph 3 of Article 34 of the Animal Protection Act, which pertains to “domestic slaughter of animals”, i.e. slaughter of animals for private domestic consumption. The applicant has not elaborated on the types and diversity of criminal sanctions provided for in Article 35(1) and (4) of the Animal Protection Act. Nor does the application mention any allegations or higher-level norms for the review with regard to the freedom of economic activity. The Public Prosecutor-General has aptly stated that, in the present case, the structure of the application gives no grounds for conducting a constitutional review of the admissibility of potential export of meat obtained from ritual slaughter in the light of the higher-level norms for the review which concern the freedom of religion (belief).

Thus, the Association has intentionally limited itself to raising one constitutional issue, the resolution of which is of significance not only for members of Jewish religious communities, but also the other followers of Judaism as well as the followers of other religions, in particular Islam. If the Association had intended only to satisfy the needs of members of Jewish religious communities, it would have requested the constitutional review of the Act of 20 February 1997 on Relations Between the State and Jewish Religious Communities in the Republic of Poland (Journal of Laws – Dz. U. No. 41, item 251, as amended; hereinafter: the Act on Jewish Religious Communities), the provisions of which regulate the status of those communities. Due to the content of the application and the principle that the Constitutional Tribunal is bound by the scope thereof, it should be emphasised at the onset of this analysis that the ambit of adjudication in the present case comprises providing an answer only to this vital question: Is the absolute ban on ritual slaughter – backed up by criminal sanctions – consistent with the indicated higher-level norms for the review, including Article 53(1), (2) and (5) of the Constitution as well as Article 9 of the Convention? By contrast, what has remained outside the scope of these review proceedings is a number of issues which – although no doubt related to the problem presented to the Tribunal – are secondary to the said problem, including, inter alia, the end use of meat obtained from slaughter and the export thereof.

 

2. The applicant’s locus standi

 

2.1. The applicant is a religious organisation – the Association of Jewish Religious Communities in the Republic of Poland, referred to in the Act of 20 February 1997 on Relations Between the State and Jewish Religious Communities in the Republic of Poland (hereinafter: the Act on Jewish Religious Communities). Pursuant to Article 2(2) of the said Act, the Association of Jewish Religious Communities is made up of Jewish religious communities.

 

2.2. In accordance with Article 191(1)(5) of the Constitution, churches and other religious organisations may submit applications to the Constitutional Tribunal to institute constitutional review proceedings. Article 191(2) of the Constitution deems that the said locus standi is limited within the scope ratione materiae (special, particular locus standi), since churches and other religious organisations may lodge an application with the Constitutional Tribunal “if the normative act relates to matters relevant to the scope of their activity”. Similar locus standi has been granted to the constitutive organs of units of local self-government (Article 191(1)(3) and Article 191(2) of the Constitution), the national organs of trade unions as well as the national authorities of employers’ organisations and occupational organisations (Article 191(1)(4) and Article 191(2) of the Constitution).

Consequently, an application filed by an authority or organisation referred to in points (3)-(5) of Article 191(1) of the Constitution should include a provision of law, or a provision of by-laws, which indicates that a challenged statute, or another normative act, pertains to matters covered by the scope of activity of the said authority or organisation (Article 32(2) of the Constitutional Tribunal Act).

 

2.3. An assessment of locus standi limited within the scope ratione materiae should begin with an analysis of legal provisions that determine the ambit of the applicant’s activity. The Association of Jewish Religious Communities justifies its locus standi in the present case primarily by citing Article 9(2) of the Act on Jewish Religious Communities, which stipulates that: “In order to exercise the right to observe religious rites and perform ritual activities, Jewish religious communities shall take care of the provision of kosher food, eateries, ritual baths as well as ritual slaughter”. The said provision is part of chapter III of the Act on Jewish Religious Communities, entitled “The Activity of Jewish Religious Communities”.

In the Tribunal’s jurisprudence, it is stressed that a provision challenged in an application submitted by one of the entities referred to in Article 191(2) of the Constitution must be directly linked with the ambit of the entity’s activity (the decision of 21 November 2001, ref. K 31/01, OTK ZU No. 8/2001, item 264, part II of the statement of reasons; see also the decisions of: 20 March 2002, ref. no. K 42/01, OTK ZU No. 2/A/2002, item 21, part II, point 1 of the statement of reasons; 8 July 2008, ref. no. K 40/06, OTK ZU No. 6/A/2008, item 113, part II, point 2 of the statement of reasons; as well as the decision of 28 January 2004 issued by the Tribunal (full bench) ref. no. Tw 74/02, OTK ZU No. 1/B/2004, item 2). The Constitutional Tribunal states that, in the present case, the applicant has locus standi limited within the scope ratione materiae, for there is a direct normative relation between the challenged provisions determining the admissibility of carrying out ritual slaughter and “taking care of” ritual slaughter, which falls within the ambit of the activity of Jewish religious communities, on the basis of the Act on Jewish Religious Communities.

Furthermore, the constitutional jurisprudence indicates that one of the functions of constitutional review is to facilitate the performance of tasks assigned to a given entity that has locus standi to bring proceedings before the Constitutional Tribunal (the decision of the Constitutional Tribunal in the case K 42/01, part II, point 1 of the statement of reasons). In the present case, the Association of Jewish Religious Communities has challenged the provisions set forth in the petitum of its application in order to, inter alia, facilitate the performance of its tasks specified in the Act on Jewish Religious Communities.

 

2.4. The Constitutional Tribunal disagrees with the view presented by the Public Prosecutor-General that, allegedly, in the present case, the applicant’s locus standi raises doubts due to the fact that the scope of the application exceeds, in terms of the scope ratione personae, the ambit of the applicant’s activity.

Pursuant to Article 191(2) of the Constitution, entities whose locus standi is limited within the scope ratione materiae may institute constitutional review proceedings where a challenged provision “relates to matters relevant to the scope of their activity”. Consequently, in order to determine the locus standi of those entities, it is necessary and sufficient to establish whether the challenged provision “relates to matters relevant to the scope of their activity”. When the above is determined, the Tribunal proceeds with the so-called abstract review of the challenged provision, with all implications of that kind of proceedings for the scope of adjudication. Article 191(2) of the Constitution does not require the Constitutional Tribunal to adjudicate solely within the scope in which a challenged provision is applicable to an applicant in a given case.

In its jurisprudence, the Constitutional Tribunal has emphasised that constitutional review, above all, plays an objective role (see, inter alia, the judgment of the Constitutional Tribunal of 30 October 2001, ref. no. K 33/00, OTK ZU No. 7/2001, item 217, part III, point 1 of the statement of reasons). The purpose of constitutional review is to eliminate provisions that are inconsistent with provisions of a higher level in the hierarchy of law, and not merely to protect the rights and interests of particular groups. This follows from Article 190(1) of the Constitution, which does not differentiate between effects of the Tribunal’s rulings on the hierarchical conformity of legal norms on the basis of the type of constitutional review, and it renders each of the rulings to be universally binding. Instituting and conducting subsequent proceedings on the review of the same provisions, but within the scope concerning another entity whose locus standi is limited within the scope ratione materiae – bearing in mind that the outcome of the subsequent proceedings would to a large extent be determined by an earlier judgment – would be inconsistent with the requirement of the efficiency of court proceedings.

Due to the above, the effective instituting of constitutional review with regard to a challenged legal norm by a church or another religious organisation may result in the issuance of a ruling that assesses the said norm irrespective of whether an event covered by the norm falls within the ambit of the applicant’s activity, or also the activity of other churches or religious organisations. The Constitution in a similar way delineates the scope of constitutional review in proceedings instituted by applications filed by the other entities whose locus standi is limited within the scope ratione materiae, which is well manifested by the applications of the constitutive organs of communes and poviats. In its judgment of 30 October 2001 in the case K 33/00, the Tribunal explained that: “(…) Article 191(2) of the Constitution limits the power (competence, locus standi) to lodge applications with the Constitutional Tribunal on the part of the constitutive organs of the units of local self-government only to applications challenging provisions included in normative acts that relate to matters relevant to the scope of the activity of a given unit; however, the said limitation should not be regarded as tantamount to a restriction of the scope ratione materiae within which the Constitutional Tribunal is to examine the application” (part III, point 1 of the statement of reasons). This means that – as long as a challenged provision relates to matters relevant to the scope of the activity of an entity whose locus standi is limited within the scope ratione materiae – the review of the constitutionality of the said provision should be comprehensive and ought to be restricted only by the principle that the Tribunal is bound by the limits of the application (Article 66 of the Constitutional Tribunal Act).

Once again it should be stressed that entities referred to in Article 191(1)(3)-Article 191(1)(5) of the Constitution have the power to institute an abstract review of constitutionality, and not a constitutional review in the context of a specific case. However, also within the scope of the constitutional review in the context of a specific case, instituted by filing a question of law or a constitutional complaint, on several occasions the Tribunal examined a challenged provision insofar as it referred not only to specific facts or a particular applicant (as a representative of a certain group of addressees), but also to the other addressees of the challenged legal norm (see e.g. the Tribunal’s judgments of: 29 October 2010, ref. no. P 34/08, OTK ZU No. 8/A/2010, item 84; 29 January 2013, ref. no. SK 28/11, OTK ZU No. 1/A/2013, item 5).

The Constitutional Tribunal holds that, in the present case, restricting the scope of adjudication to the legal situation of Jewish religious communities (as suggested by the Marshal of the Sejm) would not only be groundless in the light of the indicated provisions of the Constitution, but it would also result in a legal situation that would contradict Article 25(1) of the Constitution. The said provision specifies the systemic principle of equality of all churches and other religious organisations. Furthermore, one may not overlook that the freedom of religion (belief), guaranteed in Article 53(1) and (2) of the Constitution, is a personal freedom of the individual. The individual is entitled to this freedom irrespective of the fact whether s/he is or is not a member of a registered religious organisation (e.g. a particular Jewish religious community). Thus, if the scope of adjudication was to be restricted only to the needs of members of Jewish religious communities, this could result in unequal treatment of the followers of Judaism who are not members of those communities as well as of the followers of other religions which require food obtained from subjecting animals to particular methods of slaughter prescribed by religious rites (e.g. the followers of Islam).

The Constitutional Tribunal also deems that the constitutional jurisprudence pointed out by the Marshal of the Sejm – which indicates the necessity for a strict interpretation of provisions on limited locus standi – solely concerned the question of existence of such locus standi in the context of proceedings where there were justified doubts as to whether challenged provisions pertained to matters within the ambit of the applicant’s activity. In those proceedings, the applicant challenged the provisions solely in the context of the general public interest or derived its locus standi from the possibility of indirect gain acquired as a result of the ruling (see e.g. the decisions of the Constitutional Tribunal in the cases K 42/01 and K 40/06, as well as in the jurisprudence cited therein). In the present case, there is no doubt that the challenged provisions concern matters that fall within the ambit of the applicant’s activity.

For the above reasons, the Constitutional Tribunal deems that the Association of Jewish Religious Communities in the Republic of Poland has locus standi as regards lodging an application with the Tribunal for it to determine the conformity of the challenged provisions (within the scope specified in the petitum) to the indicated higher-level norms.

 

3. The sources of law that regulate the slaughter of farmed animals and the protection of animals in the context of slaughter

The Constitutional Tribunal deems it necessary to precede an analysis of binding legal provisions with an outline of sources of law that regulates the slaughter of farmed animals and the protection of animals in the context of slaughter due to the multitude of those sources, and due to the fact that the said matters are regulated not only in domestic law, but also in EU and international law.

 

3.1. The Council Regulation (EC) No. 1099/2009

 

3.1.1. Since 1 January 2013 the Council Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing has been directly applied. The Regulation is a source of law that lays down rules for the killing of animals bred or kept for the production of food, wool, skin, fur or other products as well as the killing of animals for the purpose of depopulation and for related operations (Article 1(1)). Pursuant to Article 288, second paragraph, of the Treaty on the Functioning of the European Union (consolidated version, OJ C 326, 26/10/2012, p.47): “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States”.

The Council Regulation (EC) No. 1099/2009 has arisen from the EU lawgiver’s vast experience within the scope of protecting animals at the time of slaughter or killing. As early as in 1974, the Council Directive 74/577/EEC was adopted. The Directive set out rules for stunning animals before slaughter (OJ L 316, 26/11/1974, p. 10; hereinafter: the Council Directive 74/577/EEC). That Directive was replaced by a more detailed one – the Council Directive 93/119/EC on the protection of animals at the time of slaughter or killing (OJ L 340, 31.12.1993, p. 21; hereinafter: the Council Directive 93/119/EC). The provisions of the latter Directive were implemented into the Polish legal system, inter alia, by amended provisions of the Animal Protection Act. In order to further extend, enhance and unify the protection of animals at the time of slaughter or killing, the EU lawgiver decided to resort to a legal instrument such as a regulation, i.e. an act of EU law that is directly applicable in the national legal orders of all Member States. The elaborated preamble to the Council Regulation (EC) No. 1099/2009, which constitutes an integral part of the Regulation, extensively sets out motives for the adoption of the Regulation and provides justification for particular measures.

The Council Regulation (EC) No. 1099/2009 is a legal act that is complex in character and addresses matters concerning the slaughter and killing of animals in a very systematic way. The Regulation concerns the slaughter of farmed animals on both a large and small scale (in the so-called small slaughterhouses), as well as the slaughter of animals for private domestic consumption. The Regulation specifies the requirements for and methods of slaughter, qualifications required of persons who carry out slaughter, as well as checks that need to be done in the context of slaughter (chapter II). It also sets out requirements as to the layout, construction and equipment of slaughterhouses, as well as it addresses the issues of handling and restraining animals in slaughterhouses (chapter III).

However, the Council Regulation (EC) No. 1099/2009 is not exhaustive in character. It leaves some room for EU Member States to introduce national rules. First of all, it allows EU Member States to choose authorities that would be competent to carry out operations specified in the Regulation, including those authorities that would be responsible for training, examining and granting certificates of competence to personnel involved in slaughtering and killing animals (Article 21), as well as to ensure independent scientific support (Article 20). Secondly, the Council Regulation (EC) No. 1099/2009 provides that EU Member States should undertake actions aimed at facilitating the implementation of the Regulation. This entails not only introducing sanctions, in national law, for any breaches of the provisions of the Regulation (Article 23), but also – inter alia – encouraging the development and dissemination of guides to good practice by organisations of business operators (Article 13). Thirdly, the Regulation allows EU Member States to adopt “national rules aimed at ensuring more extensive protection of animals at the time of killing” than those contained in the Regulation in relation to certain fields (Article 26).

Similarly to other relevant provisions of EU law, the Council Regulation (EC) No. 1099/2009 sets a high standard for the protection of animals. In recitals 6‑7 of the Regulation, it is stressed that measures adopted therein are based on the results of latest research conducted under the auspices of the European Food Safety Authority (EFSA) and the World Organisation for Animal Health (OIE). At the same time, the provisions of the said Regulation take account of Article 13 of the Treaty on the Functioning of the European Union. The said Article requires EU Member States to pay full regard to the welfare requirements of animals, since animals are sentient beings, and to respect the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.

 

3.1.2. Article 4 of the Council Regulation (EC) No. 1099/2009 concerns methods of slaughter to be used with regard to farmed animals. ‘Slaughtering’, within the meaning of the definition set out in Article 2(j) of the Regulation, denotes “the killing of animals intended for human consumption”. Article 4(1) mentions methods of slaughter that may be regarded as “common”. By contrast, Article 4(4) of the Regulation mentions particular methods of slaughter prescribed by religious rites, i.e. ritual slaughter.

Pursuant to Article 4(1) of the Regulation, animals should only be killed after stunning in accordance with the methods and specific requirements related to the application of those methods set out in Annex I (these are “mechanical”, “electrical”, “gas”, and “other” methods). Within the meaning of Article 4(4) of the Council Regulation (EC) No. 1099/2009: “In the case of animals subject to particular methods of slaughter prescribed by religious rites, the requirements of paragraph 1 shall not apply provided that the slaughter takes place in a slaughterhouse”. The Regulation defines ‘religious rite’ as “a series of acts related to the slaughter of animals and prescribed by a religion” (Article 2(g) of the Regulation).

Therefore, in accordance with the Council Regulation (EC) No. 1099/2009, apart from various methods of slaughter jointly referred to as ‘slaughter with prior stunning’, it is permissible – by way of exception – to carry out ritual slaughter in a slaughterhouse that has been approved for such operations. Within the meaning of the Regulation, ritual slaughter, irrespective of its scale, i.e. the number of animals subjected to slaughter, must be carried out with respect for: firstly – special provisions of universally binding law; and – secondly – requirements provided for by the norms of religious law that are characteristic of a given faith.

Recital 18 of the Council Regulation (EC) No. 1099/2009 stipulates that a derogation from stunning in the case of slaughter prescribed by religious rites and carried out in slaughterhouses “respects the freedom of religion and the right to manifest religion or belief in worship, teaching, practice and observance, as enshrined in Article 10 of the Charter of Fundamental Rights of the European Union” (OJ C 303, 14.12.2007, p. 1; hereinafter: the Charter of Fundamental Rights).

The Council Regulation (EC) No. 1099/2009 provides for several specific requirements that are to ensure the welfare of animals and which have to be met at the time of slaughter of farmed animals, regardless of which method prescribed by law is used, i.e. including methods required by religious rites (for more details, see Articles 3‑17). Above all, the Regulation requires that animals are to be spared any avoidable pain, distress or suffering during their killing and related operations (Article 3(1)).

 

3.1.3. Ritual slaughter does not constitute the only situation for which the Council Regulation (EC) No. 1099/2009 provides no requirement to stun animals before killing them.

In accordance with Article 1(2) of the Regulation, in the case of emergency killing outside of a slaughterhouse or where compliance with those provisions would result in an immediate and serious risk for human health or safety, a number of provisions of the Regulation do not apply, including those about the requirement to stun animals. The said provisions do not apply to the killing of fish either (Article 1(1) of the Regulation).

Moreover, the Council Regulation (EC) No. 1099/2009, and thus provisions on stunning, shall not apply where animals are killed:

1) during scientific experiments carried out under the supervision of a competent authority;

2) during hunting or recreational fishing activities;

3) during cultural or sporting events;

4) as well as with regard to poultry, rabbits and hares slaughtered outside of a slaughterhouse by their owner for his/her private domestic consumption (Article 1(3) of the Regulation).

 

3.2. The European Convention for the Protection of Animals for Slaughter

The protection of animals is an issue addressed by numerous acts of international law. An organisation that has been particularly active in that respect is the Council of Europe (for more, see: A. Przyborowska-Klimczak, “Ochrona zwierząt w świetle dokumentów międzynarodowych”, [in:] Prawna ochrona zwierząt, M. Mozgawa (ed), Lublin 2005, pp. 93-96).

Due to the subject of these review proceedings, the Constitutional Tribunal wishes to draw attention to the European Convention for the Protection of Animals for Slaughter, drafted in Strasbourg on 10 May 1979 (Journal of Laws – Dz. U. of 2008 No. 126, item 810; hereinafter: the Convention for the Protection of Animals for Slaughter), the provisions of which have been applied in Poland since 4 October 2008. The said Convention addresses the movement, lairaging, restraint, stunning and slaughter of domestic solipeds, ruminants, pigs, rabbits and poultry (Article 1(1)).

Article 12 of the Convention for the Protection of Animals for Slaughter stipulates that: “Animals shall be restrained where necessary immediately before slaughtering and, with the exceptions set out in Article 17, shall be stunned by an appropriate method”. Pursuant to Article 17(1) of the said Convention, a Contracting Party may authorise derogations from the provisions concerning prior stunning in the following cases:

1) slaughtering in accordance with religious rituals;

2) emergency slaughtering when stunning is not possible;

3) slaughtering of poultry and rabbits by authorised methods causing instantaneous death;

4) killing of animals for the purposes of health control where special reasons make this necessary.

As expressed in Article 17(2) of the said Convention, a Contracting Party availing itself of the above-mentioned provisions shall, however, ensure that at the time of such slaughter or killing the animals are spared any avoidable pain or suffering.

The above provisions show that concern for the welfare of animals for slaughter was already expressed in the documents of the Council of Europe at the end of the 1970s and the beginning of the 1980s, when it was determined what basic rules should be observed with regard to slaughter of farmed animals; these rules are still binding today.

 

3.3. The Animal Protection Act

 

3.3.1. The Animal Protection Act of 21 August 1997 constitutes a basic source of national law which regulates people’s conduct towards animals. The Act stems from the Polish legal tradition of animal protection, and in particular from the legislation of the 1920s.

On 22 March 1928, the Regulation of the President of the Republic of Poland on Animal Protection was signed (Journal of Laws – Dz. U. No. 36, item 332). Article 1 of the President’s Regulation prohibited animal abuse. The term ‘animal abuse’ was construed as “any incidents of hurting animals without any serious and justified need” (Article 2(k)). Breaches of a number of provisions of the President’s Regulation were subject to criminal sanctions (see W. Radecki, Ustawa o ochronie zwierząt. Komentarz, Warszawa 2012, pp. 14-15). The President’s Regulation of 1928 was only revoked by the Animal Protection Act of 1997.

The Animal Protection Act sets out rules of conduct towards vertebrate animals (Article 2(1)). The Act specifies rules for: transporting animals; carrying out procedures on animals; slaughtering, killing or limiting the population of animals; as well as providing checks on the application of provisions on animal protection. The only exclusion from the above scope of application of the Act is provided in Article 2(2). The said provision stipulates that the Act is not applicable to procedures that constitute experiments within the meaning of Article 2(6) of the Act of 21 January 2005 on Experiments Conducted on Animals (Journal of Laws – Dz. U. No. 33, item 289, as amended; hereinafter: the Act on Experiments Conducted on Animals).

The Animal Protection Act stresses that animals, as living creatures capable of experiencing pain, are not things. People need to respect, protect and look after animals (Article 1(1) of the said Act). In other words, the Act expresses the requirement of humane treatment of all animals, i.e. treatment that takes account of the needs of animals and guarantees them care and protection (Article 5 in conjunction with Article 4(2) of the said Act). In the light of the Polish legislation, it is prohibited to abuse animals (Article 6(1a) of the Act). The Act defines abuse as inflicting or consciously allowing the infliction of pain or suffering on animals (Article 6(2) of the Act). Breaches of a number of provisions of the Animal Protection Act are subject to criminal sanctions (see Articles 35‑40 of the Act).

The Animal Protection Act, as a rule, prohibits the killing of animals, with certain strictly specified exceptions (Article 6(1) of the Act). The first of the exceptions permits the slaughter and killing of farmed animals for the purpose of obtaining food for human consumption, which may take place only in compliance with the requirements and methods specified in Article 33 of the Act as well as separate provisions (including, inter alia, challenged Article 34(1) and (3) of the Act). Article 33(1a) of the Act emphasises that animals may only be killed in a humane way, i.e. in a way that causes minimum physical and psychological suffering.

 

3.3.2. In its current version, the Animal Protection Act provides for an absolute requirement of stunning vertebrate animals prior to slaughtering them in a slaughterhouse (Article 34(1) of the Act). By contrast, in the original version of the Act, considerations for the welfare of animals at the time of slaughter did not cause the legislator to overlook the need to take account of a value which may appear to be very remote from the issue of animal protection, such as the freedom of religion (belief). From the entry into force of the Animal Protection Act, i.e. 24 October 1997, until 27 September 2002, Article 34(5) was binding; it stipulated that the requirement of stunning animals prior to slaughter was not applicable to animal slaughter prescribed by religious rites.

Article 34(5) of the Animal Protection Act was repealed by Article 1(27)(b) of the  Act of 6 June 2002 amending the Animal Protection Act (Journal of Laws – Dz. U. No. 135, item 1141). The repeal of that provision occurred at the time of adjusting the Animal Protection Act to Community law, i.e. 7 directives and 2 regulations (see the Sejm Paper No. 339/4th term, 25 March 2002). However, the Council Directive 93/119/EC on the protection of animals at the time of slaughter or killing, which was binding at that time, explicitly stated that “in the case of animals subject to particular methods of slaughter required by certain religious rites” (Art. 5(2)), the requirement of stunning animals prior to slaughter should not apply.

After the repeal of Article 34(5) of the Animal Protection Act, the Minister for Agriculture and Rural Development, on the basis of Article 34(6) of the Act, issued the Regulation of 9 September 2004 on the qualifications of persons competent to carry out slaughter as well as on requirements and methods for slaughtering and killing animals (Journal of Laws – Dz. U. No. 205, item 2102, as amended; hereinafter: the 2004 Regulation of the Minister for Agriculture), where § 8(2) provided for a derogation from the requirement of stunning animals before slaughter.

The said provision was challenged before the Constitutional Tribunal by the Public Prosecutor-General in June 2012. The Prosecutor requested that § 8(2) of the 2004 Regulation of the Minister for Agriculture be deemed inconsistent with Article 34(1) and (6) of the Animal Protection Act as well as with Article 92(1) of the Constitution, alleging that the challenged provision exceeded the scope of statutory authorisation and did not respect statutory guidelines for issuing regulations, and thus violated constitutional requirements set for issuing acts that ranked lower than statutes.

In its judgment of 27 November 2012, ref. no. U 4/12 (OTK ZU No. 10/A/2012, item 124), the Constitutional Tribunal adjudicated that § 8(2) of the 2004 Regulation of the Minister for Agriculture was inconsistent with Article 34(1) and (6) of the Animal Protection Act, and consequently also with Article 92(1) of the Constitution. The Tribunal held that challenged § 8(2) had, without proper authorisation, introduced a derogation from the statutory provisions requiring the stunning of animals before slaughter. Thus, there had been an inadmissible modification of the statutory provisions by the Regulation. In addition, the Tribunal stressed that the subject of the constitutional review in the case U 4/12 was only the question of conformity of the Regulation to the statutory authorisation and the provision of the Constitution that required that such conformity be preserved. What was outside the scope of the review of constitutionality was the admissibility of ritual slaughter.

In the statement of reasons for the judgment in the case U 4/12 (part III, point 6.4), the Tribunal indicated that as of 1 January 2013, the Council Regulation (EC) No. 1099/2009 would be applicable. Therefore, it would be necessary for competent state authorities to determine the admissibility of or prohibition against ritual slaughter in Poland as of 1 January 2013. Due to the significance of the issue that required determination, as well as a period of time needed to inform the European Commission about a ban on ritual slaughter, in accordance with Article 26 of the Council Regulation (EC) No. 1099/2009, or to carry out a legislative process, the Tribunal ruled that challenged § 8(2) would cease to have effect on 31 December 2012.

 

4. The current legal situation

 

4.1. The Constitutional Tribunal states that from the end of 2012 until at least mid-2013, in legal literature, the press and the mass media, doubts were raised as to whether the absolute ban on ritual slaughter was binding (see inter alia: W. Brzozowski, “Dopuszczalność uboju rytualnego w Polsce”, Państwo i Prawo Issue No. 5/2013, pp. 51-53). They arose due to the multitude of sources of law that regulated the admissibility and methods of slaughter of farmed animals. On the one hand, doubts arose with regard to matters regulated by both the Animal Protection Act and the Council Regulation (EC) No. 1099/2009, and, on the other hand, with relation to the fact that at the same time Article 9(2) of the Act on Jewish Religious Communities was in force.

                

4.2. Since 1 January 2013 the Council Regulation (EC) No. 1099/2009 has been applied (see Article 30 of the Regulation). On the day before that, as a result of the judgment issued in the case U 4/12 by the Constitutional Tribunal, § 8(2) of the 2004 Regulation of the Minister for Agriculture, which provided for a derogation from the statutory requirement of stunning animals prior to slaughter in the context of ritual slaughter, ceased to have effect.

The Council Regulation (EC) No. 1099/2009, in its Article 4(4), stipulates that in the case of animals subject to particular methods of slaughter prescribed by religious rites, the requirements of stunning the animals before slaughter do not apply provided that the slaughter takes place in a slaughterhouse. Concurrently, Article 26(1) of the Council Regulation stipulates that EU Member States may maintain any national rules aimed at ensuring more extensive protection of animals at the time of killing which were in force at the time of entry into force of the Regulation. Within the meaning of that provision, before 1 January 2013, the Member States were to inform the European Commission about such national rules and the Commission was to bring them to the attention of the other Member States.

The doubts as to the current legal situation were caused by the lack of awareness on the part of the general public that the Minister for Agriculture had notified the European Commission about the ban on ritual slaughter provided for in the Polish legal system. Such notification was sent in a letter of 27 December 2012 (ref. no. ŻW sdp/mj -070-61/2012). In the said letter, the Minister for Agriculture notified the European Commission that: “Due to the fact that on 1 January 2013 the Council Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing will enter into force and pursuant to Article 26(1) of the said Regulation (…), as of 1 January 2013, in Poland, a ban on subjecting animals to slaughter in a slaughterhouse without stunning will be binding”. The Minister for Agriculture added that as of 1 January 2013: “(…) Article 34(1) of the Animal Protection Act of 21 August 1997 (…) – pursuant to which a vertebrate animal may be killed in a slaughterhouse only after stunning – will be binding”.

The Constitutional Tribunal states that since the Polish legislator – both after the Council Regulation (EC) No. 1099/2009 entered into force (8 December 2009) and after it began to be applicable (1 January 2013) – left Article 34(1) of the Animal Protection Act in the legal system, then, pursuant to Article 26(1) of the said Council Regulation, he “maintained” national rules which ensured more extensive protection of animals at the time of killing than the rules provided in the Council Regulation. Article 34(1) of the Animal Protection Act unconditionally prohibits the slaughter of vertebrate animals in a slaughterhouse without prior stunning, and guarantees more extensive protection of animals than Article 4(4) of the Council Regulation (EC) No. 1099/2009, which permits ritual slaughter in a slaughterhouse.

The Constitutional Tribunal notes that on 12 July 2013 the Sejm rejected the Government’s bill amending the Animal Protection Act (the Sejm Paper No. 1370/7th term, 10 May 2013), which was to change the wording of Article 34(1) of the Animal Protection Act so as to permit subjecting vertebrate animals to ritual slaughter in slaughterhouses on the basis of Article 4(4) of the Council Regulation (EC) No. 1099/2009. In addition, on 5 March 2014 the Sejm received a different bill amending the Animal Protection Act (the Sejm Paper No. 2349/7th term, 25 April 2014), signed by the required number of citizens, which repeated solutions proposed in the bill of 10 May 2013, rejected by the Sejm.

 

4.3. The necessity on the part of the Constitutional Tribunal to determine binding legal provisions in the present case also entails addressing doubts as to whether Article 9(2) of the Act on Jewish Religious Communities may constitute a basis for carrying out slaughter prescribed by Judaism, when this provision is juxtaposed with the concurrent binding and absolute ban on ritual slaughter, which arises from Article 34(1) of the Animal Protection Act. Already at the onset of this analysis, the Constitutional Tribunal stressed that, in the present case, the Act on Jewish Religious Communities, including its Article 9, is considered only to the extent this is necessary: firstly, to assess the locus standi of the Association of Jewish Religious Communities in the Republic of Poland (see part III, point 2 above); secondly, to determine binding legal provisions in the context of the subject of adjudication.

The Constitutional Tribunal has deemed that Article 9 of the Act on Jewish Religious Communities, included in chapter III of the said Act (entitled “The Activity of Jewish Religious Communities”) is one of the provisions specifying the activity of Jewish communities. Article 9 of the said Act, in very general terms, sets out the tasks of Jewish religious communities, stipulating in its paragraph one that Jewish communities are to organise and perform public worship as well as provide religious services in accordance with domestic law. Similarly, paragraph two of the provision is also general in character; it stipulates that in order to exercise the right to observe religious rites and perform ritual activities, Jewish religious communities are to take care of the provision of kosher food, eateries, ritual baths as well as ritual slaughter.

While stipulating that the activity of Jewish religious communities comprises “taking care of ritual slaughter”, Article 9(2) of the Act on Jewish Religious Communities does not indicate particular action which these communities are authorised to take within the scope of their generally defined tasks. Still, the said Act, while granting specific competence to Jewish religious communities in its other provisions, explicitly stipulates that the competence may be exercised in compliance with rules laid down in separate provisions (see e.g. Article 12 of the Act on Jewish Religious Communities – the right to provide religious instruction and teach religion, Article 13 of the said Act – the right to set up schools and other educational and care centres). This corresponds to constructional assumptions underlying the Act on Jewish Religious Communities, which is systemic in character. The Act primarily regulates relations between the state and Jewish religious communities. In matters that concern the said communities but are not regulated in the Act, universally binding provisions of law shall apply (Article 1(2) of the Act).

Taking the above into consideration, Article 9(2) of the Act may not be read in isolation from other sources of universally binding law, especially that the issue of ritual slaughter is regulated by sources of law that vary in character, including the Council Regulation (EC) No. 1099/2009 and national statutes on: animal protection and Jewish religious communities. The Council Regulation (EC) No. 1099/2009 takes precedence in the case of its conflict with a Polish statute (Article 91(3) of the Constitution), whereas statutes are sources of law that are equal in rank. Moreover, it should be taken into account that the Act on Jewish Religious Communities was enacted on 20 February 1997. At that time, legislative work on the Animal Protection Bill was under way; the bill was enacted on 21 August 1997. The fact that these two normative acts were enacted only a few months apart justifies interpreting them jointly as regards the subject-matter that they both regulate, namely ritual slaughter.

In the original version of the Animal Protection Act, i.e. the one from 1997, Article 34(5) permitted subjecting animals to ritual slaughter. By contrast, Article 9(2) of the Act on Jewish Religious Communities, which was also binding at that time and which generally sets out tasks of Jewish religious communities such as “taking care of ritual slaughter”, constituted a legal basis for those communities to commission authorised slaughterhouses to perform ritual slaughter and to supervise the compliance of such slaughter with the requirements of religious rites. When Article 34(5) of the Animal Protection Act was repealed in 2002, there was no longer a normative basis for carrying out ritual slaughter, as prescribed by all religious rites that required such slaughter, i.e. also including the precepts of Judaism. A different interpretation of that legal situation would contradict Article 25(1) of the Constitution, which provides for the equal treatment of churches and other religious organisations, especially that the current version of the Animal Protection Act not only imposes an absolute ban on ritual slaughter but also backs up the said ban with criminal sanctions (see also the opinion of the Government Legislation Centre of 19 July 2013, ref. no.  RCL. DPŚiI 5602-60/13, p. 5). Consequently, the Constitutional Tribunal deems that the repeal of Article 34(5) of the Animal Protection Act does not justify interpreting the task of “taking care of ritual slaughter” – assigned to Jewish religious communities, and hitherto construed in a very general way – as a specific competence to carry out the said slaughter.

In the present case, the Constitutional Tribunal has not found any grounds for determining that the provisions of the Act on Jewish Religious Communities as such are leges speciales with regard to the provisions of the Animal Protection Act. Having juxtaposed provisions which specify rules of people’s conduct towards animals, including particular methods of animal slaughter, with provisions which regulate relations between the state and a particular religious organisation to guarantee the freedom of religion, the Tribunal deems that these two groups of provisions, in principle, regulate different areas of social life and, hence, there is no relationship of lex generalislex specialis between them, which was suggested by the Marshal of the Sejm.

Taking the above into consideration, the Constitutional Tribunal could not agree with the view expressed by the Marshal of the Sejm that, allegedly, Article 9(2) of the Act on Jewish Religious Communities could, in the current legal situation, constitute an autonomous basis for carrying out ritual slaughter in slaughterhouses by Jewish religious communities.

 

5. The meaning and scope of the freedom of religion (belief)

 

5.1. The freedom of belief, in the Polish constitutional order – referred to as the freedom of religion, is a fundamental (basic) freedom of the individual. Even the Preamble to the Polish Constitution emphasises the significance of faith as a source of truth, justice, good and beauty.

The obligation to respect the freedom of religion is closely related to the protection of the inherent and inalienable dignity of the person, which constitutes a source of freedoms and rights of persons and citizens (Article 30 of the Constitution). The dignity of the person is a transcendent value (see the judgment of the Constitutional Tribunal (full bench) of 5 March 2003, ref. no. K 7/01, OTK ZU No. 3/A/2003, item 19, part III, point IV of the statement of reasons). It constitutes the axiological basis and premiss of the entire constitutional order (see L. Garlicki, comment on Article 30, [in:] Konstytucja Rzeczypospolitej Polskiej. Komentarz, Vol. 3, L. Garlicki (ed), Warszawa 2003, pp. 2-3).

Arising from the European civilisation as one of the basic aspects of freedom enjoyed by the individual, the freedom of belief (religion) evolved gradually, in the course of long-term philosophical, cultural and legal processes. At present, the freedom of belief, considered jointly with the freedom of conscience, takes a central place in the catalogues of basic rights and freedoms of the individual.

Article 18 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948, stipulates that everyone has the right to freedom of thought, conscience and religion. The said right comprises freedom to change one’s religion or belief, and freedom – either alone or in community with others and in public or private – to manifest one’s religion or belief in teaching, practice, worship and observance of customs (rites). The freedom of belief construed in this way is also expressed in Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR), opened for signature at New York on 19 December 1966 (Journal of Laws – Dz. U. of 1977 No. 38, item 167, hereinafter: the ICCPR). Article 18(2) of the ICCPR stresses that no one may be subject to coercion which would impair his/her freedom to have or to adopt a religion or belief of his/her choice. By contrast, Article 18(3) of the ICCPR provides that freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. A guarantee of the freedom of thought, conscience and religion is also expressed in Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 10 of the Charter of Fundamental Rights of the European Union.

Provisions that guarantee the freedom of belief are common in constitutions of democratic states (see P. Winczorek, Komentarz do Konstytucji Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 roku, Warszawa 2008, pp. 126-127; J. Szymanek, “Wolność sumienia i wyznania w Konstytucji RP”, Przegląd Sejmowy 2/2006, pp. 39-40). The Polish Constitutional Tribunal, in its judgment (full bench) delivered on 2 December 2009, ref. no. U 10/07 (OTK ZU No. 11/A/2009, item 163, part V, point 3.1 of the statement of reasons), emphasised that the freedom of belief (religion) constitutes an essential element (a fundamental principle) of a democratic state ruled by law. In the said judgment, the Tribunal extensively presented the genesis and contemporary understanding of the freedom of belief. Those findings remain valid.

 

5.2. In the Polish constitutional order, the guarantee of the freedom of religion (belief) is provided for in Article 53 of the Constitution, which is the basic higher-level norm for the review in the present case. Paragraph one of the said provision reads as follows: “Freedom of conscience and religion shall be ensured to everyone”. However, the constitutional subject-matter concerning the freedom of conscience and religion comprises two aspects: an institutional aspect which pertains to relations between the state and churches as well as other religious organisations (such relations are regulated, primarily, in Article 25 of the Constitution); and an aspect that refers to guarantees of the individual’s freedom of conscience and religion, which arise from Article 53 of the Constitution. Article 25 and Article 53 of the Constitution are complementary in character and should be examined as a certain whole (see the judgments of the Constitutional Tribunal (full bench) of: 2 December 2009, ref. no. U 10/07, part V, point 5 of the statement of reasons; and 8 June 2011, ref. no. K 3/09, OTK ZU No. 5/A/2011, item 39, part III, point 3.4.1 of the statement of reasons).

In the light of the Constitution, the freedom of religion is not only a personal freedom of the individual but also a systemic principle, which enhances the importance of that value accordingly (see also P. Sarnecki, commentary on Article 53 [in:] Konstytucja..., pp. 1-2). The high constitutional significance of the freedom of religion is confirmed by Article 233(1) of the Constitution, which stipulates that the said freedom may not be restricted by a statute specifying the scope of limitations to the rights and freedoms of persons and citizens in times of martial law and states of emergency.

In ordinary legislation, the constitutional guarantee of the freedom of religion (belief) is confirmed and expressed by statutes that determine relations between the state and churches as well as other religious organisations (in the context of relations with the Roman Catholic Church, this also includes the Concordat singed between the Holy See and the Republic of Poland; Journal of Laws – Dz. U. of 1998 No. 51, item 318), as well as the Act of 17 May 1989 on Guarantees of the Freedom of Conscience and Belief (Journal of Laws – Dz. U. of 2005 No. 231, item 1965, as amended).

 

5.3. The constitutional distinction between freedoms and rights enjoyed by persons and citizens entails that in the case of the freedoms (or “liberties”), the Constitution emphasises a prohibition on interference, by public authorities and third parties, in the realm of activity guaranteed to the individual (see K. Wojtyczek, Granice ingerencji ustawodawczej w sferę praw człowieka w Konstytucji RP, Kraków 1999, pp. 24-28). In its jurisprudence, the Tribunal stresses that the constitutional liberties imply not only freedom from unjustified legal requirements and prohibitions, restricting the freedom of the individual, as well as freedom from unjustified use of coercive measures, but also freedom from other unauthorised forms of interference in the realm of the individual’s legally protected interests, intended to restrict the individual’s freedom to make decisions within a given scope (see the judgment of the Constitutional Tribunal of 7 February 2006, ref. no. SK 45/04, OTK ZU No. 2/A/2006, item 15, part III, point 6 of the statement of reasons).

Article 53 is one of the most extensive provisions of the Constitution when it comes to the guarantee character of the rights and freedoms of the individual. Cited by the applicant, paragraph two of the said provision stipulates that the freedom of religion includes the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing rites or teaching. Within the meaning of that provision, the freedom of religion also comprises the possession of sanctuaries and other places of worship for the satisfaction of the needs of believers as well as the right of individuals, wherever they may be, to benefit from religious services. Concurrently, the presentation of elements making up the freedom of religion in Article 53(2) of the Constitution is general in character. Its role is to exemplify the aspects of the said freedom. The wording of Article 53(2) of the Constitution does not rule out exercising the freedom of religion in yet other ways.

The Constitutional Tribunal deems that Article 53(1) and Article 53(2) of the Constitution imply a prohibition against actions, including those that have legal effects, which would in an unjustified way interfere (hinder) the practice of a particular religion. Respect for the freedom to manifest one’s religious beliefs is a prerequisite for the effective guarantee of the freedom of religion.

 

5.4. The freedom of belief is provided for in the catalogue of basic rights expressed in the Convention for the Protection of Human Rights and Fundamental Freedoms. Cited by the applicant, Article 9(1) of the Convention stipulates that everyone has the right to freedom of thought, conscience and religion. The said right comprises the freedom to change one’s religion or belief and freedom, either alone or in community with others and in public or private, to manifest one’s religion or belief, in worship, teaching, practice and observance.

In the jurisprudence of the European Court of Human Rights (hereinafter: the ECHR), it is stressed that the freedom of thought, conscience and religion is one of the cornerstones of a pluralist democratic society. As regards its religious aspect, the said freedom is one of the crucial elements that make up the identity of believers and their way of life, but it is also a value for atheists, agnostics, sceptics as well as persons who are indifferent to religious matters. The ECHR deems that although the freedom of belief is primarily a matter of one’s conscience, it also implies the freedom to manifest one’s religious beliefs. Indeed, words and actions are a testimony to one’s religious beliefs. In accordance with the ECHR jurisprudence, the state has the duty to remain a neutral and impartial guarantor of the free practice of different religions. The said duty is incompatible with any competence on the part of the state to assess the validity of given religious beliefs or ways of manifesting them (see inter alia the ECHR judgment of 25 May 1993 in the case of Kokkinakis v. Greece, application no. 14307/88 as well as the judgments of the Grand Chamber of the ECHR of: 10 November 2005 in the case of Leyla Şahin v. Turkey, application no. 44774/98; 7 July 2011 in the case of Bayatyan v. Armenia, application no. 23459/03, as well as jurisprudence cited therein).

 

6. The legal protection of slaughter carried out as prescribed by religious rites

 

6.1. The applicant stated that the subjecting of terrestrial animals and birds to a particular method of slaughter prescribed by Jewish religious law and customs (the so-called shechita) is a rite which has been observed by the followers of Judaism for centuries. Meat obtained from such ritual slaughter is regarded as kosher – a characteristic which is required by special dietary laws arising from Jewish religious beliefs.

The application in detail describes the method of slaughter prescribed by Judaism and required by Jewish traditions, as well as specifies requirements which need to be met by persons authorised to perform such slaughter. The norms of the said religious law concerning ritual slaughter and kosher food were extensively discussed in the judgment of 27 June 2000 delivered by the Grand Chamber of the European Court of Human Rights in Strasbourg in the case of Cha’are Shalom Ve Tsedek v. France (application no. 27417/95; paras 13-20 of the ECHR judgment). It is worth mentioning here a few basic findings from the thorough discussion of the matter in the indicated judgment:

1) “Kashrut is the name given to all the Jewish laws on the types of food which may be eaten and how to prepare them. The main principles applying to kosher food are to be found in the Torah, the holy scripture comprising the first five books of the Bible – the Pentateuch – namely Genesis, Exodus, Leviticus, Numbers and Deuteronomy”.

2) According to the Torah, “certain animals are regarded as unclean and consumption of certain parts of animals is also forbidden (Lev. xi; Deut. xiv)”. Among quadrupeds, only animals that are both cloven-hoofed and ruminants may be eaten (e.g. cattle, sheep, goats, and deer species). The Torah excludes solipeds (e.g. horses) and non-ruminating quadrupeds (e.g. pigs).

 Among aquatic species, only fishes with both fins and scales may be eaten, but not crustaceans or shellfish. Only some species of birds may be eaten. Insects and reptiles are totally forbidden.

3) “The Torah absolutely forbids the consumption of blood” (Lev. vii, 26 and 27; xvii, 10-14); it emphasises that blood is the medium of life and life must not be absorbed with flesh but must be poured on the earth like water (Deut. xii, 21-25).

4) “With a view to ensuring compliance with all the prohibitions laid down in the Torah, later commentators established very detailed rules concerning, in particular, the approved method of slaughter, initially by handing down the oral tradition but later by compiling an encyclopaedic collection of commentaries – the Talmud […] As it is forbidden for Jews to eat any blood whatsoever, animals for slaughter, after being blessed, must have their throats slit; more precisely, they must be killed with a single stroke of a very sharp knife in such a way that an immediate, clean and deep cut is made through the trachea, the oesophagus, the carotid arteries and the jugular veins, so that the greatest possible quantity of blood will flow”. The animal may not be stunned before the slaughter.

The slaughter of an animal may be performed only by a competent ritual slaughterer (a shochet), who must be a devout man of unimpeachable moral integrity and scrupulous honesty. The applicant clarified that a shochet must be an adult man, with full mental and physical capacity, who knows the requirements of religious law as regards the treatment of animals. The shochet uses a knife which must be as sharp as possible, and which needs to be of an appropriate length, depending on the species of a given animal, so that he can kill the animal with one cut. There are several similarities between ritual slaughter performed by the method prescribed by Judaism and the one carried out by a method required by Islam. This is a rite during which – in order to obtain food that meets religious requirements – an animal intended for slaughter may not be stunned. Slaughter in accordance with the method required by Islam may be performed by an adult Muslim man, with full mental and physical capacity, who prays regularly. The slaughter consists in making a quick cut through carotid arteries, which should result in immediate loss of blood. It is obligatory to say a prayer.

Nowadays ritual slaughter is still an action which is liturgical in character, despite the fact that it is carried out in slaughterhouses. Due to the fact that ritual slaughter is a form of observing religious precepts and that it is liturgical in character, actions related thereto – regardless of the scale of the said slaughter – are still governed by the norms of religious law and traditions (see M. Rudy, A. Rudy, P. Mazur, Ubój rytualny w prawie administracyjnym, Warszawa 2013, p. 19). In order to ensure effective control over the process of carrying out ritual slaughter in compliance with religious law, and to maintain the necessary trust of the followers of a given religion as to the appropriateness of that process, meat obtained from ritual slaughter is certified by a competent religious organisation.

 

6.2. Taking the above into consideration, the ECHR (the Grand Chamber) in the case of Cha’are Shalom Ve Tsedek v. France held that animal slaughter performed in accordance with the method prescribed by Judaism constitutes a rite covered by the right to manifest one’s religion in observance, guaranteed in Article 9 of the Convention (para 74 of the ECHR judgment).

The Strasbourg Court pointed out that Article 9(1) of the Convention “lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance”. The ECHR stated that: “It is not contested that ritual slaughter, as indeed its name indicates, constitutes a rite […], whose purpose is to provide Jews with meat from animals slaughtered in accordance with religious prescriptions, which is an essential aspect [Fr. élément essential] of practice of the Jewish religion” (para 73 of the judgment). The ECHR noted that: “by establishing an exception to the principle that animals must be stunned before slaughter, French law gave practical effect to a positive undertaking on the State’s part intended to ensure effective respect for freedom of religion” (para 76 of the judgment).

The Constitutional Tribunal agrees with the view that subjecting animals to particular methods of slaughter prescribed by religious rites so as to obtain acceptable food constitutes an element (way) of manifesting the freedom of religion and is subject to protection under Article 9 of the Convention (see also the judgment of the Austrian Constitutional Court of 17 December 1998, B 3028/97, VfSlg 15.394; M.A. Nowicki, Wokół konwencji europejskiej. Komentarz do europejskiej konwencji praw człowieka, Warszawa 2013, p. 753).

 

6.3. In the Polish language, a rite denotes a set of actions that constitute an established and external form of a socially significant act, celebration or ceremony (see J. Sobczak, W. Sobczak, comment on Article 10, [in:] Karta Praw Podstawowych Unii Europejskiej. Komentarz, A. Wróbel (ed), Warszawa 2013, p. 412). As defined in religious studies, a rite “is an established form of religious practice” (Słownik języka polskiego, M. Szymczak (ed), Warszawa 1989, Vol. 3, p. 155; Uniwersalny słownik języka polskiego, S. Dubisz (ed), Warszawa 2003, Vol. 3, p. 1107). Ritual activities arise from religious needs, and usually constitute part of rites the observance of which confirms that followers of a given religion are true to its religious doctrine (see W. Sobczak, Wolność myśli, sumienia i religii – poszukiwania standardu europejskiego, Toruń 2013, p. 383).

In the Polish legal order, the religious character of ritual slaughter is stressed in the aforementioned Article 9 of the Act on Jewish Religious Communities. The literature on the subject indicates that the said provision confirms the great significance of particular Judaic ritual activities in Jewish communities (see T.J. Zieliński, comment on Article 9, [in:] A. Czohara, T.J. Zieliński, Ustawa o stosunku Państwa do gmin wyznaniowych żydowskich w Polsce, Warszawa 2012, p. 76).

Provided for in Article 53(1) and (2) of the Constitution, the guarantee of the freedom of religion comprises any activities (practices, rites, and rituals) which are religious in character. The constitutional protection also covers religious activities that are far from conventional ones prevailing in a given country, including activities that are unpopular in the eyes of a majority of society (see T.J. Zieliński, ibid. p. 73). Due to the guarantees set out in Articles 25 and 53 of the Constitution, public authorities should not assess the validity of religious convictions or ways in which they are expressed. At the same time, the freedom of religion is not absolute in character. It may be subject to restrictions provided for in Article 53(5) of the Constitution.

Taking the above into consideration, the Constitutional Tribunal deems that, in the Polish legal order, animal slaughter carried out by particular methods prescribed by religious rites for the purpose of obtaining acceptable food is subject to protection within the scope of the freedom of religion guaranteed by Article 53(1) and (2) of the Constitution.

 

6.4. Ritual slaughter is permitted in a vast majority of EU Member States. What follows from information obtained by the Tribunal is that, on the day of adjudicating on the matter, a ban on ritual slaughter is in force only in Sweden, Poland and Denmark, as well as Lithuania, where, however, new provisions have been enacted to permit the said slaughter as of 1 January 2015. Recital 18 of the Council Regulation (EC) No. 1099/2009 stipulates that “it is important that derogation from stunning animals prior to slaughter should be maintained”, as this way the Regulation “respects the freedom of religion and the right to manifest religion or belief in worship, teaching, practice and observance, as enshrined in Article 10 of the Charter of Fundamental Rights of the European Union”. Previously there was an analogical derogation from stunning animals prior to slaughter in the Council Directive 93/119/EC. It is stressed in the preamble to the Directive that in the case of regulating the slaughter of animals, it is necessary to take account of special requirements that arise from religious traditions. A similar approach was noted in the preamble to the Council Directive 74/577/EEC.

Animal slaughter carried out in accordance with particular methods prescribed by religious rites for the purpose of obtaining meat that was acceptable for consumption has been regarded in the jurisprudence of European constitutional courts as a vital element of the freedom of religion. In its judgment of 15 January 2002 (the First Senate, 1 BvR 1783/99, para 28), the Federal Constitutional Court of Germany held that ritual slaughter performed by Muslim slaughterers in accordance with methods prescribed by Islam is subject to protection not only within the scope of occupational freedom, but also under Articles 4.1 and 4.2 of the Basic Law, which provide for the freedom of religion and the freedom of religious practice. A similar stance was adopted by the Constitutional Court of Austria in its judgment of 17 December 1998 (B 3028/97, VfSlg 15.394).

Also, the Constitutional Tribunal has made reference to the judgment of 11 June 1993 delivered by the US Supreme Court in the case of Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (508 U.S. 520), where the practice of animal sacrifice performed by followers of the Santeria religion was deemed to be a form of manifesting the freedom of religion. In the reasons for the judgment, with regard to the constitutionally protected freedom of religion, the following statement was included, which merits full approval: “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection” (508 U.S. 520, 531).

 

7. The admissibility of potential restrictions on the freedom to manifest religion (belief)

 

7.1. The Constitutional Tribunal deems that subjecting animals to slaughter in accordance with special methods prescribed by religious rites for the purpose of obtaining acceptable food constitutes a rite protected under Article 53(1) and (2) of the Constitution as well as Article 9(1) of the Convention. Consequently, an absolute ban on ritual slaughter in a slaughterhouse, which arises from Article 34(1) of the Animal Protection Act, constitutes a restriction of the freedom to manifest one’s religion (belief).

 

7.2. The meaning and scope of the freedom of religion as well as its close relation to the inherent and inalienable dignity of the person determine the way of regulating permissible restrictions on the manifestation of that freedom. Article 53(5) of the Constitution stipulates that the freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the protection of national security, public order, health, morals or the rights and freedoms of others.

Article 53(5) of the Constitution in a detailed way sets out the so-called formal grounds (the statutory character of the said restriction) and substantive grounds (necessity to protect national security, public order, health, morals or the rights and freedoms of others) for the admissibility of restricting the freedom of religion. What follows from the normative structure of Article 53(5) of the Constitution is that possible restrictions may affect only the manifestation of religion.

Due to the significance of the freedom of religion (belief), Article 53(5) of the Constitution sets out stricter requirements than Article 31(3), first sentence, of the Constitution; this seems to have been overlooked by the applicant Association, which mentions general grounds for imposing restrictions within the scope of exercising the constitutional rights and freedoms. Article 53(5), in comparison with Article 31(3), first sentence, of the Constitution, does not mention the substantive premiss of ‘the protection of the natural environment’.

The genesis and shape of the limitation clause in Article 53(5) of the Constitution are clearly inspired by Article 9(2) of the Convention. The last-mentioned provision stipulates that the freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 9(2) reflects the intentions of the authors of the Convention that grounds for interference with the freedom to manifest one’s religion ought to be special in character, taking account of the significance and unique character of the guaranteed freedom so as to ensure that the said freedom will be realised within the broadest possible scope (see W. Sobczak, Wolność myśli…, pp. 285-287). This way, the limitation clause in Article 9(2) of the Convention has been formulated in a narrower way than in the case of clauses that specify grounds for restricting other rights and freedoms protected under the Convention. An analogical purpose was to be fulfilled by Article 53(5) of the Constitution. The intention of the authors of the Constitution was to maintain a maximum relation between the constitutional provisions on the individual’s rights and freedoms and the relevant wording of the Convention (L. Garlicki, “Przesłanki ograniczania konstytucyjnych praw i wolności (na tle orzecznictwa Trybunału Konstytucyjnego)”, Państwo i Prawo 10/2001, p. 6).

Similarly, the formulation of the general principle of proportionality of restrictions on constitutional rights and freedoms in Article 31(3), first sentence, of the Constitution is directly related to grounds for possible restrictions of those rights indicated in Article 9(2) of the Convention. At the same time, the said state of affairs makes it possible to assume that, in Article 53(5) of the Constitution, the constitution-maker has established a modified, special construct of potential restrictions on the freedom of religion, in a way that is fully intentional and justified by the nature of the protected freedom.

Taking the above into consideration, in the present case, where the subject of the examination undoubtedly falls within the constitutional meaning of the freedom to manifest religion, the Constitutional Tribunal did not find any reasons to share the applicant’s view that grounds for a potential restriction of the freedom to manifest religion should be assessed not only in the light of Article 53(5) of the Constitution, but also in Article 31(3), first sentence, of the Constitution.

 

8. The assessment of the conformity of an absolute ban on ritual slaughter to Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention

8.1. The Constitutional Tribunal has stated that the restriction of the freedom to manifest one’s religion (belief), arising from challenged Article 34(1) of the Animal Protection Act, meets the formal requirement expressed in Article 53(5) of the Constitution and Article 9(2) of the Convention, as it has been introduced by statute. What is no less important is the requirement that the said restriction must be necessary for the protection of one of the five categories of the public interest: national security, public order, health, morals or the freedoms and rights of others (the principle of proportionality). From the point of view of the basic assumptions underlying the said requirement, it is construed in the same way in the light of Article 53(5) of the Constitution and Article 9(2) of the Convention as in the context of Article 31(3), first sentence, of the Constitution (see K. Wojtyczek, Granice ingerencji…, pp. 149-150; L. Garlicki, Przesłanki ograniczania…, p. 19).

 

8.2. The applicant argues that the restriction of the freedom to manifest one’s religion (belief), which arises from Article 34(1) of the Animal Protection Act, is not necessary for the protection of any values indicated in Article 53(5) of the Constitution and Article 9(2) of the Convention (as well as in Article 31(3), first sentence, of the Constitution). The Public Prosecutor-General has opposed that view, arguing for the necessity of the challenged restriction for the protection of health, morals as well as – in a sense – the rights and freedoms of others. The Constitutional Tribunal deems that in the present case it is indisputable that the ban on ritual slaughter that arises from the challenged provisions is not linked with the necessity to protect national security or public order. Nor is there a direct relation between the absolute ban on ritual slaughter and the protection of the rights and freedoms of others. Consequently, the constitutional review should concern the necessity of the challenged restriction on the freedom of religion for the protection of health and morals.

 

8.2.1. Making reference to the requirement of the protection of health in Article 53(5) of the Constitution, the applicant stated that rules for carrying out ritual slaughter by the followers of Judaism prohibit the slaughter of ill or injured animals. Due to the strict procedure for ritual slaughter, both the process of obtaining meat in this way as well as the effects of eating that meat pose no threats to the health of the general public or to persons who are consumers of the meat. The applicant stressed that the ritual slaughter carried out in Polish slaughterhouses until the end of 2012 was performed under the supervision of competent inspectors, who supervised the compliance of the entire technological process with the standards of sanitation and hygiene.

By contrast, when citing particular passages from a report issued by the European Food Safety Authority, the Public Prosecutor-General argued that slaughter without prior stunning may undermine the hygienic conditions of obtaining meat, especially when the same knives are used for making incisions on skin and cutting blood vessels.

The Constitutional Tribunal states that an absolute ban on ritual slaughter of farmed animals in a slaughterhouse is not indispensable for the protection of health. This conclusion is drawn from the following arguments:

First of all, there are no grounds to assume that a ban on ritual slaughter has been introduced into the Animal Protection Act because it was necessary (indispensable) to protect health. Legislative documents indicate that the sole value considered in the course of legislative work was concern for the welfare of animals at the time of slaughter.

Secondly, the Tribunal takes account of the fact that ritual slaughter carried out in slaughterhouses is permissible in a vast majority of EU Member States, as well as under the stringent provisions of the Council Regulation (EC) No. 1099/2009, which are based on the previous European experience in that respect (also as regards the safety of food) as well as results of the latest scientific research. Recitals 6 and 7 of the said Regulation indicate that the Regulation also takes account of research conducted under the auspices of the European Food Safety Authority as well as guidelines for animal slaughter and for the killing of animals for disease control purposes, drafted in 2007 by the World Organisation for Animal Health (Terrestrial Animal Health Code). Also, the applicant convincingly argues that the lack of risks to the safety and hygiene of food and the health of consumers is confirmed by the previous practice of ritual slaughter in the light of which no such risks were identified.

Thirdly, the admissibility of ritual slaughter is inextricably linked with the obligation of close supervision by competent state authorities to ensure compliance with numerous and detailed requirements for carrying out the said slaughter, which are established by Polish law (see inter alia: the Animal Protection Act; the Act of 25 August 2006 on the Safety of Food and Nutrition, Journal of Laws – Dz. U. of 2010 No. 136, item 914, as amended; the Act of 29 January 2004 on Veterinary Inspection, Journal of Laws – Dz. U. of 2010 No. 112, item 744, as amended) as well as EU law (see, inter alia, the Council Regulation (EC) No. 1099/2009; the Regulation (EC) No. 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs, OJ L 139, 30.4.2004, p. 1; the Regulation (EC) No. 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin, OJ L 139, 30.4.2004, p. 55; the Regulation (EC) No. 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules, OJ L 165, 30.4.2004, p. 1; the Regulation (EC) No. 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption, OJ L 139, 30.4.2004, p. 206).

The applicant does not request that ritual slaughter should be permitted without any control measures. The applicant mentions the ECHR judgment in the case of Cha’are Shalom Ve Tsedek v. France, in which it was held that the state may and should regulate ritual slaughter so as to ensure the safety of food. The applicant has emphasised that the process of carrying out ritual slaughter, irrespective of its scale, should be safeguarded by special procedures, including those that would guarantee proper sanitary and hygienic conditions, which make it possible for followers of a religion to practice it in a way that will be least burdensome to others.

Fourthly, the threats to safe and hygienic conditions for obtaining food, indicated by the Public Prosecutor-General, in the context of ritual slaughter have been based on an undocumented conviction that the practice of ritual slaughter is defective. However, the Public Prosecutor-General does not mention that also conventional slaughter carried out in breach of various legal provisions, even though it involves stunning animals, poses threats to safe and hygienic conditions for obtaining food. In addition, the Animal Protection Act stipulates that slaughter may be carried out only by competent persons (Article 34 of the said Act). Similarly, the Council Regulation (EC) No. 1099/2009 requires that both conventional slaughter with prior stunning and ritual slaughter should only be carried out by persons holding a certificate of competence for such operations, demonstrating their ability to carry out the slaughter in accordance with relevant legal norms (and in the case of ritual slaughter – also religious norms), without causing the animals any avoidable pain, distress or suffering (Article 7). The Council Regulation assigns EU Member States with the task of designating a competent authority responsible for training, examining and delivering certificates of competence to persons involved in slaughtering and killing animals (Article 21).

 

8.2.2. In the view of the applicant, it may not be deemed that the protection of morals – which have been shaped to a large extent by the Judaeo-Christian religion and tradition – could justify the challenged restriction of the freedom to manifest religion. The applicant argues that it is rather the introduction of the ban on ritual slaughter, backed up by criminal sanctions, that constitutes a violation of moral norms that require respect for the freedom of religion (belief).

By contrast, in the opinion of the Public Prosecutor-General, the ban on ritual slaughter may be justified by the protection of morals; indeed, such slaughter inflicts more suffering, pain and distress on animals, as some aforementioned scientific research suggests. The arguments of the Public Prosecutor-General are based on the assumption that the individual’s conduct towards animals affects his/her “moral personality”, and consequently his/her empathy towards other people. In the view of the Prosecutor, suffering caused to animals at the time of slaughter results from actions that, in contemporary Poland, are considered to be highly immoral.

Morals are understood and construed in many ways. The literature on the subject indicates that the term ‘morals’ is imprecise and varies in definition (see inter alia M. Ossowska, Socjologia moralności. Zarys zagadnień, Warszawa 2011, p. 13; W. Sobczak, Wolność myśli…, pp. 574-575). In philosophy and legal literature, there is a well-established view that the protection of ‘morals’ refers to moral norms which are recognised in a given society and which concern interpersonal relations (K. Wojtyczek, Granice ingerencji…, p. 196, see also the judgment of 17 December 1998 issued by the Constitutional Court of Austria, B 3028/97, VfSlg 15.394). The above interpretation of ‘morals’ is justified in law, as legal provisions are primarily enacted with people in mind. The Preamble to the Polish Constitution, which indicates moral values that are cherished in Polish society, focuses on the person. It requires that the Constitution will be applied with respect for the inherent dignity of the person, his or her right to freedom, and the obligation of solidarity with others.

The aforementioned understanding of ‘morals’ is at most loosely linked with the arguments put forward by the Public Prosecutor-General, where he asserts that a person’s attitude towards animals is often related to his/her conduct towards other people. However, there is no doubt that the legal protection of animals and concern for their welfare at the time of slaughter have been acquiring more and more prominent forms. Thus, one may suppose that dynamic changes in social attitudes and legal approaches will create a basis in the near future for analysing people’s conduct towards animals in the light of the protection of morals.

Still, it needs to be emphasised that the present case does not require any further analyses or discussions of the meaning of the term ‘morals’ in the context of ‘the protection of morals’ as one of the limitation clauses in Article 53(5) of the Constitution. Indeed, this would have no impact on the ultimate determination whether the challenged provisions are constitutional or not. Even if it is assumed that people’s conduct towards farmed animals at the time of slaughter may be considered in the context of the protection of morals as mentioned in Article 53(5) of the Constitution, then an absolute ban on ritual slaughter backed up by criminal sanctions is unnecessary for the protection of morals construed in this way. This conclusion is supported by all the arguments presented below. In the present case, Article 53(5) of the Constitution does not raise the question whether ritual slaughter is moral, as claimed by the Public Prosecutor-General. For an absolute ban on ritual slaughter in a slaughterhouse to be regarded as a permissible restriction of the freedom to manifest religion (belief), Article 53(5) of the Constitution requires proof that the said ban is “necessary for the protection of morals”.

Once again the Constitutional Tribunal emphasises that the subject of assessment in these proceedings is the admissibility of a particular method for slaughtering farmed animals which is prescribed by certain religions. An analysis of the use of the said method in the context of broadly construed ‘morals’ may not be carried out in isolation from other methods of slaughter used with regard to farmed animals. In discussions about the permissibility of ritual slaughter, it is too often overlooked that the current law also permits various methods of animal slaughter with prior stunning which inevitably induce suffering, pain and distress to animals. The use of such methods may also be defective. This is pointed out in Recital 2 of the Council Regulation (EC) No. 1099/2009, in which it is stated that: “Killing animals may induce pain, distress, fear or other forms of suffering to the animals even under the best available technical conditions. Certain operations related to the killing may be stressful and any stunning technique presents certain drawbacks”.

In the present state of knowledge, scientific research on animals’ ability to experience pain, suffering and distress does not allow one to unambiguously state that properly performed animal slaughter by methods prescribed by certain religions is more painful to animals than properly performed slaughter with prior stunning. Legally admissible and universally applied methods of animal slaughter with prior stunning comprise inter alia: the use of a penetrative captive bolt device which is to causesevere and irreversible damage of the brain provoked by the shock and the penetration of a captive bolt”; head-only electrical stunning which involves “exposure of the brain to a current generating a generalised epileptic form on the electro-encephalogram (EEG)”; or maceration i.e. “immediate crushing of the entire animal” used inter alia in the case of chicks up to 72 hours old (see Annex I to the Council Regulation (EC) No. 1099/2009). Thus, methods of animal slaughter with prior stunning are considerably varied.

In the opinion of the Constitutional Tribunal, as long as in Polish society it is universally acceptable to subject farmed animals to slaughter for the purpose of obtaining food for human consumption, a total ban on only one slaughter method (the one prescribed by religious rites) – which is subject to protection under the freedom of religion, and with regard to which scientific research produces no conclusive results that, in every case, this method is more painful than others – is not necessary for the protection of morals.

One may not overlook the fact that in the case of the slaughter of farmed animals by any of the said methods, including the method required by religious rites, it is necessary to meet several requirements specified by law. Above all, the killing and slaughter of animals may be carried out only in a humane way, inflicting minimum physical and mental suffering, and thus sparing animals any avoidable pain, distress or suffering (see Article 33(1a) of the Animal Protection Act, Article 3(1) of the Council Regulation (EC) No. 1099/2009). This way, legal provisions concerning the slaughter of farmed animals, including the Animal Protection Act and the Council Regulation (EC) No. 1099/2009, take account of an ethical norm which requires responsible conduct towards animals, and in every case sparing them avoidable suffering (see J. Łapiński, “Etyczne podstawy ochrony zwierząt”, [in:] Prawna ochrona zwierząt, M. Mozgawa (ed), Lublin 2002, pp. 77-81).

The fact that the Constitution is based on the pluralism of viewpoints and cultures in society enables one to state that the protection of “morals”, mentioned in Article 53(5) of the Constitution, makes it possible to carry out autonomous legal interference only with regard to such activities and conduct which are universally perceived as detrimental to society. Consequently, in the light of the arguments presented by the Public Prosecutor-General, the Tribunal has considered whether, in the constitutional-law context of the present case, there is any room for reference to “morals” in isolation from the scope ratione personae i.e. the question whose morals are to be protected by the restriction of the freedom of religion (see also M. Ossowska, Socjologia moralności…, p. 83 et seq.).

Taking account of the fact that Polish society assigns great importance to religion and the freedom to manifest it, the Tribunal deems that the applicant’s argument is convincing that the freedom of religion is not only guaranteed by the Constitution and the Convention, but it also constitutes one of basic moral values in Polish society. What reinforces the said view in law is the Preamble to the Constitution, which makes reference to values arising from the Judaeo-Christian tradition. Considering the above, there should be no support for the assertion that, in Polish society, an absolute ban on ritual slaughter is necessary for the protection of morals defined in a broad sense. One should rather assume that it is consistent with moral norms shared by a vast majority of Polish society that the freedom of religion (belief) ought to be respected within the broadest possible scope. Ritual activities are repetitive and, for that reason, they often seem redundant to outsiders. Yet, it is the repetitiveness of those activities that constitutes an essential factor in getting a given social group together. A ritual “connects the past, the present and the future, annulling history and time” (see W. Sobczak, Wolność myśli…, pp. 384-385 as well as the literature cited therein). It is of special significance to national and ethnic minorities. For this reason, when reinforcing its stance, the applicant Association, indicated Article 35(1) of the Constitution. The said provision guarantees that Polish citizens belonging to national or ethnic minorities enjoy the freedom to maintain and develop their own language, to maintain customs and traditions, and to develop their own culture. This inter alia comprises – in the case of Jewish and Muslim minorities – carrying out ritual slaughter. Article 35(1) of the Constitution is linked with Article 53 of the Constitution, which guarantees the freedom of religion. In many instances, a practised religion is one of the basic elements of preserving the identity of a national or ethnic group (see L. Garlicki, comment on Article 35 [in:] Konstytucja..., pp. 8-9). The applicant has aptly noted that there is an inextricable connection between tradition, culture and religious rites, and that it may be observed, for instance on the basis of historical accounts, with regard to, in particular, Polish Jews and the followers of Judaism who practiced their religion in Poland. Permitting ritual slaughter is a determinant of the state’s approach to the organisations of religious minorities which require the slaughter of animals carried out in compliance with religious norms for the purpose of obtaining religiously acceptable food. According to the Constitutional Tribunal, respect for constitutionally guaranteed rights of national and ethnic minorities enhances the protection of ritual slaughter, which arises from the freedom of religion (belief). Consequently, in order to determine that an absolute ban on ritual slaughter carried out by minorities is necessary for the protection of morals of a majority of society, there would have to be serious and adequately justified arguments. In the present case, there are no such arguments.

 

8.2.3. The Constitutional Tribunal has stated that the introduction of the absolute ban on ritual slaughter in a slaughterhouse was not necessary for the protection of health and morals, but reflected great concern for the welfare of farmed animals at the time of slaughter.

It should not be overlooked that the introduction of the absolute ban on ritual slaughter was proposed by numerous Polish and foreign organisations established for the protection of animals. The protection of animals at the time of slaughter is justified by basic values which underlie the axiological order of the Polish state. In particular, this concerns ‘good’ – a value which is mentioned in the Preamble to the Constitution, and which is cherished both by those who believe in God as well as those who derive such universal values from other sources. The dignity of the person (see the Preamble to the Constitution and Article 30 of the Constitution), when understood strictly in the context of the person as a subject of rights and obligations, implies an obligation of responsible conduct towards animals. The world of animals constitutes an integral part of the environment in which people live and from which they benefit, and for which they are also responsible.

Concern for the welfare of farmed animals is reflected in the provisions of the Animal Protection Act and the Council Regulation (EC) No. 1099/2009, which permit subjecting animals to slaughter provided that a number of specific requirements is met, such as the requirement of humane treatment, which implies that at the time of slaughter the physical and emotional suffering of animals is to be minimised (Article 33(1a) of the Animal Protection Act). In other words, they require that animals will be spared any avoidable pain, distress or suffering (Article 3(1) of the Council Regulation (EC) No. 1099/2009).

Nevertheless, ‘concern for the welfare of farmed animals at the time of slaughter’ has not been indicated in Article 53(5) of the Constitution and Article 9(2) of the Convention as a value that could justify the necessity to restrict the freedom of religion (belief). Also, ‘the protection of the natural environment’, mentioned inter alia in Article 31(3), first sentence, of the Constitution, but not included in Article 53(5) of the Constitution and Article 9(2) of the Convention, in its basic meaning comprises only the protection of wild animals (that do not live in captivity) which constitute part of the natural environment.

Due to determining that the restriction of the freedom to manifest religion (belief), which arises from Article 34(1) of the Animal Protection Act, is not necessary for the protection of any of the categories of the public interest specified in Article 53(5) of the Constitution as well as Article 9(2) of the Convention, the Constitutional Tribunal adjudicates that the said restriction does not meet requirements provided for in the Constitution and the Convention.

 

8.3. The assessment of the conformity of the challenged provisions to Article 53(5) of the Constitution, in conjunction with Article 9(2) of the Convention, would be incomplete without noting that they also impose an excessive (disproportionate) restriction on the freedom to manifest religion (belief).

It is well-established in the constitutional jurisprudence that restrictions of constitutional rights and freedoms should be “directly linked with the pursued goals and should be proportionate to them, and that the appropriate internal hierarchy of constitutional values ought to be maintained” (see instead of many: the judgment of the Constitutional Tribunal of 29 July 2013, ref. no. SK 12/12, OTK ZU No. 6/A/2013, item 87, part III, point 7.7 of the statement of reasons). By analogy, it is indicated that the assessment of the constitutionality of those restrictions to some extent needs to be relativised, to take account of the character of particular rights and freedoms of the individual. Stricter assessment requirements should be applied to restrictions of personal and political rights and freedoms than in the case of economic and social rights (see inter alia the judgment of the Constitutional Tribunal of 26 April 1995, ref. no. K 11/94, OTK of 1995, item 12, part III, point 2 of the statement of reasons). High significance assigned to the freedom of religion (belief) in the Constitution and the Convention entails that any restrictions imposed on the freedom to manifest religion have to be warranted by serious and justified reasons. Such reasons do not weigh in favour of an absolute ban on the ritual slaughter of farmed animals in a slaughterhouse.

Also, one may not overlook the fact that when introducing the absolute ban on the slaughter of animals in a slaughterhouse without stunning, the legislator was not consistent. In a number of other cases, it is permissible to kill animals without stunning them. In the light of the Council Regulation (EC) No. 1099/2009, the said provisions do not apply inter alia when animals are killed during scientific experiments carried out under the supervision of a competent authority, during hunting or recreational fishing activities and during cultural or sporting events; nor do they apply to poultry, rabbits and hares slaughtered outside of a slaughterhouse by their owner for his/her private domestic consumption (Article 1 of the Regulation). Similar wording is in Article 6(1) of the Animal Protection Act. As a side remark, the Constitutional Tribunal notes that, as regards the welfare of farmed animals, an absolute ban on ritual slaughter may paradoxically bring about negative side-effects. As a result of the introduction of the said ban, there has been news reports about cases where animals bred in Poland were transported abroad to be subjected to ritual slaughter in other EU Member States, where such slaughter is permissible. Thus, animals may be forced to endure various forms of suffering during the long and exhausting journey abroad.

Considering the above, there are doubts as to whether the Polish legislator’s utmost concern for animal welfare at the time of slaughter, reflected by the introduction of an absolute ban on ritual slaughter, may be realised in a situation where EU law permits, rather than prohibits, ritual slaughter. Namely, Article 26(4) of the Council Regulation (EC) No. 1099/2009, which is directly applicable, stipulates that a Member State “shall not prohibit or impede the putting into circulation within its territory of products of animal origin derived from animals that have been killed in another Member State on the grounds that the animals concerned have not been killed in accordance with its national rules aimed at a more extensive protection of animals at the time of killing”.

To sum up, the Tribunal deems that challenged Article 34(1) of the Animal Protection Act in an inappropriate way expresses the proportion between a constitutionally protected value such as the protection of animals and concern for their welfare, on the one hand, and the freedom of religion (belief), on the other, especially that the ban on ritual slaughter has been backed up by severe criminal sanctions. In fact, the protection of animals may not take precedence over the provisions of the Constitution on the freedom of religion (such a view was also presented in the judgment of the German Federal Administrative Court of 23 November 2006, 3 C 30.05). The legislator’s task is to weigh up competing values so that the protection of animals and the freedom of religion could be effectively realised.

For the above reasons, the Constitutional Tribunal rules that Article 34(1) of the Animal Protection Act, insofar as it does not permit subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites, is inconsistent with Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention.

 

9. The assessment of the conformity of Article 35(1) and Article 35(4) of the Animal Protection Act (within the scope of the allegation) to Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention.

Challenged Article 35(1) and Article 35(4) of the Animal Protection Act introduce sanctions for the killing or slaughter of animals in breach of the provisions of Article 6(1), Article 33 or Article 34(1)-(4) of the Animal Protection Act. The applicant has challenged the said provision insofar as it provides for criminal liability of persons who subject animals to particular methods of slaughter prescribed by religious rites.

In the applicant’s opinion, what constitutes an obvious consequence of challenging a norm introducing requirements – i.e. Article 34(1) and (3) of the Animal Protection Act – is the necessity to challenge a norm imposing sanctions for breaches of the requirements – i.e. Article 35(1) and (4) of the Animal Protection Act (see p. 19 of the application). Due to the fact that the subject of the Tribunal’s adjudication is solely Article 34(1) of the Animal Protection Act, and that the review proceedings on the examination of Article 34(3) of the said Act (within the challenged scope) have been discontinued, it should be deemed that the review of constitutionality of Article 35(1) and Article 35(4) of the said Act may only concern the scope within which the said provisions introduce sanctions for the slaughter of vertebrate animals in a slaughterhouse, considering that such slaughter is inadmissible in the light of Article 34(1) of the said Act.

The Constitutional Tribunal states that declaring the ban on ritual slaughter in a slaughterhouse – derived from Article 34(1) of the Animal Protection Act – to be inconsistent with Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention entails that non-conformity to those higher-level norms for the review also occurs in the case of provisions that back up the challenged ban by criminal sanctions. Challenged Article 35(1) and Article 35(4) of the said Act (within the challenged scope) aggravate the legislator’s unjustified interference in the freedom of religion (belief) protected by the Constitution and the Convention.

In the Tribunal’s view, the sanctions imposed by the challenged provisions are severe. Article 35(1) of the Animal Protection Act provides that a perpetrator who subjects animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites may be deprived of liberty for a period of up to two years. Article 35(4) of the said Act stipulates that in the event of convicting the accused, the court may prohibit the perpetrator from performing a certain occupation, conducting particular economic activity or carrying out actions that require a permit and which involve or affect animals, as well as the court may order the forfeiture of tools or objects that could be used for the commission of the offence and of objects used or obtained in the course of the offence.

For the above reasons, the Constitutional Tribunal adjudicates that Article 35(1) and Article 35(4) of the Animal Protection Act, insofar as they provide for criminal liability for subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites, are inconsistent with Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention.

 

10. The discontinuation of the review proceedings as to the remainder

The applicant has also indicated Article 35(1) in conjunction with Article 31(3) of the Constitution as another higher-level norm for the review in the present case. Article 35(1) of the Constitution stipulates that: “The Republic of Poland shall ensure Polish citizens belonging to national or ethnic minorities the freedom to maintain and develop their own language, to maintain customs and traditions, and to develop their own culture”. Article 35(1) of the Constitution is linked with Article 53 of the Constitution, and it also provides for the protection of the activity of carrying out ritual slaughter, inter alia, by Jewish and Muslim minorities, which has already been pointed out by the Tribunal (see part III, point 8.2.2 of the above).

Additionally, other higher-level norms for the review indicated by the applicant are: Article 32(1) and Article 32(2) of the Constitution, in conjunction with Article 14 of the Convention. In the applicant’s view, since the challenged provisions, which undermine the freedom of religion, are in force, the followers of Judaism, as well as members of Jewish communities that observe religious traditions and rites, do not receive equal treatment in comparison with the followers of other religions in Poland, and thus their situation is worse; hence, this is inconsistent with Article 32(1) and Article 32(2) of the Constitution, which express the principle of equality and the prohibition of discrimination, as well as with Article 14 of the Convention.

In accordance with the well-established line of jurisprudence of the Constitutional Tribunal, when determining the non-conformity of a challenged regulation to one of indicated higher-level norms for review, proceedings to examine the conformity of the regulation to the other higher-level norms for review may be discontinued, on the grounds that the issuing of a ruling is useless (see e.g. the judgment of 11 May 2004 issued by the Constitutional Tribunal in the case K 4/03, OTK ZU No. 5/A/2004, item 4, part III, point 1.11 of the statement of reasons and the jurisprudence cited therein). Due to declaring the non-conformity of Article 34(1) as well as Article 35(1) and (4) of the Animal Protection Act (within the scope indicated in the operative part of the judgment) to Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention, the Tribunal has deemed that adjudicating on the conformity of the challenged provisions to the other higher-level norms for the review is redundant. The justification provided for the application raises no doubts that the basic higher-level norm for the review consists of Article 53(1), Article 53(2) and Article 53(5) of the Constitution, and the other higher-level norms for the review were indicated to reinforce the applicant’s arguments. Consequently, by adjudicating on the non-conformity of the subject of the allegation to Article 53(1), (2) and (5) of the Constitution (in conjunction with Article 9 of the Convention), the Tribunal has resolved the fundamental constitutional issue in question in the present case.

Taking the above into consideration, on the basis of Article 39(1)(1) of the Constitutional Tribunal Act, the Constitutional Tribunal discontinues the review proceedings as to the examination of conformity of Article 34(1) as well as Article 35(1) and (4) of the Animal Protection Act (within the challenged scope) to Article 35(1) in conjunction with Article 31(3) of the Constitution and to Article 32(1) and (2) of the Constitution in conjunction with Article 14 of the Convention, on the grounds that the issuing of a ruling is useless.

 

11. The effects of the judgment

 

11.1. The Constitutional Tribunal has adjudicated that Article 34(1) as well as Article 35(1) and (4) of the Animal Protection Act (within the scope indicated in the operative part of the judgment) are unconstitutional. Consequently, as of the day when the judgment is published in the Journal of Laws, it will be admissible to subject animals in a slaughterhouse to particular methods of slaughter as prescribed by religious rites on the basis of Article 4(4) of the Council Regulation (EC) No. 1099/2009. Ritual slaughter carried out in accordance with relevant provisions will not be punishable by a criminal sanction.

Article 4(4) of the Council Regulation (EC) No. 1099/2009 provides that ritual slaughter – as derogation from stunning – may be carried out in an approved slaughterhouse. The purpose of the said requirement is to ensure the welfare of animals subjected to the said slaughter in a professionally prepared place by qualified slaughterers, as well as the safety of food obtained from the slaughter as well as the effective supervision of the slaughter. Furthermore, it clearly follows from Article 4(4) of the Council Regulation (EC) No. 1099/2009 that slaughter without stunning is only admissible when it is carried out in accordance with particular methods prescribed by religious rites.

Therefore, the Constitutional Tribunal once again stresses that – in the light of the said Council Regulation – regardless of the number of animals subjected to slaughter, in every case of ritual slaughter, there must be compliance with numerous and detailed requirements of Polish and EU law, as well as the precepts of the religious law of a given religion. Thus, it is inadmissible to carry out slaughter without stunning and in breach of religious requirements and beliefs, which at times is described as “industrial slaughter”.

Also other provisions of the Council Regulation (EC) No. 1099/2009 establish a number of other requirements related to slaughter in compliance with special methods prescribed by religious rites (see inter alia Article 5(2), Article 6(2)(c), Article 7(2)(g), Article 15(2), and Article 16(2)(b)). In particular, Article 5(2) of the Regulation provides that if animals are killed without prior stunning, persons responsible for slaughtering shall carry out systematic checks to ensure that the animals do not present any signs of consciousness or sensibility before being released from restraint and do not present any sign of life before undergoing dressing or scalding. Pursuant to Article 15(2), first sentence, of the Regulation, prior to ritual slaughter, all animals are to be individually restrained, with the exception of ruminants, which are mechanically restrained.

Additionally, the Animal Protection Act and the Council Regulation (EC) No. 1099/2009 comprise a number of requirements aimed at protecting animal welfare which need to be met during the slaughter of farmed animals carried out by any method provided by law. Above all, the killing and slaughter of animals may only be carried out in a humane way, which implies that animals are to be spared any avoidable pain, distress or suffering (see Article 33(1a) of the Animal Protection Act, Article 3(1) of the Council Regulation (EC) No. 1099/2009). The said Regulation requires that both slaughter carried out with prior stunning and, in particular, ritual slaughter should be carried out by persons with the appropriate level of competence to do so in compliance with legal and religious norms, without causing animals any avoidable pain, distress or suffering (Article 7).

Animal slaughter carried out by any method, including a particular (special) ritual method, must conform to the provisions of the Regulation (EC) No. 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin. The said Regulation specifies hygiene rules for carrying out animal slaughter, including inter alia pre-slaughter and post-slaughter examination. One should also take account of the Regulation (EC) No. 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption.

Supervision over slaughterhouses is exercised by the Veterinary Inspectorate (see, inter alia, Article 3 of the Act on the Veterinary Inspectorate). Inspections in slaughterhouses are carried out by competent vets, officially designated to do such work. The inspections comprise, inter alia, the verification of adherence to provisions on animal protection at the time of slaughter. When ritual slaughter is permitted, the observance of religious norms will be scrutinised by competent religious organisations (e.g. Jewish religious communities on the basis of Article 9(2) of the Act on Jewish Religious Communities).

It should be reminded that since 1 January 2013, also Article 4(1) of the Council Regulation (EC) No. 1099/2009 is directly applicable. The provision states that, in cases other than ritual slaughter, animals will only be killed after stunning.

 

11.2. The Constitutional Tribunal stresses that due to the fact that the Tribunal is bound by the limits of the application (Article 66 of the Constitutional Tribunal Act), the subject of the review proceedings in the present case is only the assessment whether an absolute ban on the ritual slaughter of farmed animals in a slaughterhouse – the breach of which is punishable by criminal sanctions – conforms to the freedom of religion (belief) guaranteed in the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms. Thus – and this needs to be pointed out once again – what has fallen outside the scope of adjudication is a number of issues which, although related to the matter under the Tribunal’s review, are essentially of secondary importance. The issues include, above all, the final use of meat obtained from ritual slaughter, and the possibility of limiting the scale of such slaughter, as well as the export of such meat. These matters should be sorted out by the legislative branch of government.

The binding provisions of EU and national law set a high standard for protecting animal welfare at the time of slaughter. However, EU law does not rule out raising that standard. Article 26(2) of the Council Regulation (EC) No. 1099/2009 stipulates that EU Member States may adopt national rules aimed at ensuring more extensive protection of animals at the time of – inter alia – ritual slaughter than those contained in the Council Regulation. EU Member States are to inform the European Commission about such national rules and the Commission then bring them to the attention of the other Member States.

The Constitutional Tribunal notes that the intention to enhance animal protection underlies the proposal to prohibit the use – at the time of ritual slaughter – of systems that involve restraining bovine animals by inversion or any other unnatural position (see Article 15(2), second sentence, of the Council Regulation (EC) No. 1099/2009). The said proposal was included in the citizens’ bill amending the Animal Protection Act (the Sejm Paper No. 2349/7th term, 25 April 2014; previously also, the Government’s bill of 10 May 2013, the Sejm Paper No. 1370/7th term).

Additionally, the Minister for Agriculture and Rural Development, in his letter of 29 September 2014, drew attention to the fact that the binding provisions do not require the Veterinary Inspectorate to keep separate records about establishments that carry out ritual slaughter; nor do they impose an obligation on slaughterhouses to collect data concerning only such slaughter. Also, there are no official data on the scale of the export of meat obtained from ritual slaughter. Thus, the legislator should consider introducing an obligation to collect the above-mentioned data so that they could serve as a basis for devising a rational policy of the state as well as for adopting detailed provisions on ritual slaughter.

 

11.3. The Constitutional Tribunal also deems it necessary to signal the necessity to undertake immediate legislative work so as to adjust Polish legislation on animal protection to the Council Regulation (EC) No. 1099/2009. The Animal Protection Act, insofar as it regulates the slaughter and killing of animals, addresses matters regulated in detail in the Council Regulation (EC) No. 1099/2009. A number of provisions of the Animal Protection Act do not match the standard and terminology of the said Council Regulation, although the Regulation has been applied since 1 January 2013. In the context of the present case, this is particularly striking when analysing “domestic slaughter of animals” regulated in Article 34(3) of the Animal Protection Act. The said provision was adjusted neither to the provisions of the Council Regulation (EC) No. 1099/2009, nor to other provisions of national law (see part III, point 1.3 above). Another example of insufficient adjustment is the lack of sanctions for any infringements of the Council Regulation (EC) No. 1099/2009. Pursuant to Article 23 of the Council Regulation, EU Member States are obliged to introduce such sanctions, which should be “effective, proportionate and dissuasive”.

The Constitutional Tribunal has noted that on 14 August 2012 the Council of Ministers adopted “draft assumptions for a bill amending the Animal Protection Act” (memorandum no. 35/2012, ref. no. RM 000-35-12). The draft assumptions included the statement that: “The aim of the bill is to ensure the proper and consistent application of the provisions of the Council Regulation (EC) No. 1099/2009 (…). In order to introduce into the national legal order provisions that execute the said Council Regulation, the provisions of the Animal Protection Act of 21 August 1997 need to be changed (…)”. In accordance with the assumptions, the scope of proposed changes was to comprise inter alia: “the repeal of those provisions of the Animal Protection Act which as of 1 January 2013 are to be replaced by the provisions of the Council Regulation (EC) No. 1099/2009”. In this case, the changes would take account of the principle expressed in § 4(2) of the Annex to the Regulation of 20 June 2002 entitled “the Rules on Legal Drafting”, issued by the Prime Minister (Journal of Laws – Dz. U. No. 100, item 908), pursuant to which a statute should not repeat the provisions of normative acts adopted by international organisations or bodies, upon which the Republic of Poland has conferred the competence of the organs of state authority in certain matters. However, a bill based on the above assumptions was not presented to the Sejm.

In conclusion, the Constitutional Tribunal wishes to emphasise that the requirements of sufficient certainty of law and its internal cohesion – which arise from the principle of a democratic state ruled by law, expressed in Article 2 of the Constitution – impose on the legislator the obligation to adjust the provisions of the Animal Protection Act (including the terminology used therein) to the directly applicable Council Regulation (EC) No. 1099/2009. Appropriate legislative work should be undertaken forthwith.

 

For the above reasons, the Constitutional Tribunal has adjudicated as in the operative part of the judgment.

 

Dissenting Opinion

of Judge Wojciech Hermeliński

to the judgment of the Constitutional Tribunal

of 10 December 2014, ref. no. K 52/13

 

On the basis of Article 68(3) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws – Dz. U. No. 102, item 643, as amended; hereinafter: the Constitutional Tribunal Act), I submit my dissenting opinion to the Tribunal’s judgment of 10 December 2014, ref. no. K 52/13.

I hold the view that, when issuing the judgment in question, the Constitutional Tribunal went beyond the admissible scope of adjudication. As a result, against the applicant’s intentions, the effect of the judgment also entails opening up the possibility for carrying out ritual slaughter to meet the needs of religious communities other than Jewish ones, as well as to export meat obtained from such slaughter, and this does not serve the protection of the freedom of conscience and religion in Poland.

 

In my opinion, the following ruling should have been issued:

 

1.      Article 34(1) of the Animal Protection Act of 21 August 1997 (Journal of Laws – Dz. U. of 2013, item 856; hereinafter: the Animal Protection Act) – insofar as it does not permit subjecting animals to particular methods of slaughter prescribed by Judaism (the so-called shechita) to meet the needs of the followers of that religion in Poland – is inconsistent with Article 53(1), (2) and (5) in conjunction with Article 31(3) of the Constitution as well as Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950 (Journal of Laws – Dz. U. of 1993 No. 61, item 284, as amended; hereinafter: the Convention).

2.      Article 35(1) and Article 35(4) of the Animal Protection Act – insofar as they provide for criminal liability for subjecting animals to slaughter specified above – are inconsistent with Article 53(1), (2) and (5) in conjunction with Article 31(3) of the Constitution and Article 9 of the Convention.

3.      The review proceedings as to the remainder of the allegation are subject to discontinuation.

 

I justify this dissenting opinion as follows:

 

1. Introductory remarks

I wish to begin with some personal remarks. As part of my preparations for the hearing, I thoroughly analysed numerous reports on scientific research concerning methods used for the slaughter of farmed animals, including the reports cited by the participants in these proceedings (cf. a detailed discussion below). The reports confirmed my common-sense intuition that even ritual slaughter that is most carefully carried out in compliance with the precepts of Judaism (shechita) is always and in every case crueller than properly-performed regular animal slaughter which involves the prior stunning of animals (hereinafter: conventional slaughter; I put aside here any potential irregularities that may cause additional, avoidable suffering to animals when either of the two types of slaughter is carried out). It is indisputable that animals during ritual slaughter are fully conscious and their ability to experience pain is not impaired at the time when their throats are cut. Even in the case of one incision made with a perfectly sharp knife, the suffering lasts for at least over ten seconds (and according to some research and in the case of certain species of animals – even a few minutes). It is experienced by all animals subjected to ritual slaughter, with no exceptions, and there is no way to avoid it, as the present-day rules of shechita prohibit inducing loss of consciousness in animals before subjecting them to slaughter.

Merely as a side remark, one may note that, in the light of some scientific research, the pre-slaughter stunning of animals has no negative effect on the animals’ loss of blood. This paves the way for future modifications to the rules of ritual slaughter in Judaism, without prejudice to the prohibition against the consumption of blood that exists in that religion (the so-called reversible stunning at the time of slaughter is already used in Poland, and is accepted by some Muslim religious organisations, cf. A. Velarde and et al., Improving Animal Welfare during Religious Slaughter. Recommendations for Good Practice, DIALREL Reports No. 2.4, <http://www.dialrel.eu/images/recom-light.pdf>; hereinafter: the DIALREL recommendations, p. 13).

To my mind, the above facts are an argument for supporting the preservation of the current legal situation. I hold the view that the present ban on ritual slaughter is not an accidental outcome of legislative negligence (provisions in a regulation and not a statute – cf. the judgment of 27 November 2012, ref. no. U 4/12, OTK ZU No. 10/A/2012, item 124), but a solution that was well-thought-out and is accepted by society (this is confirmed inter alia by the Sejm’s rejection of the Government’s bill of 12 July 2013 on the reversal of the ban on ritual slaughter, published in the Sejm Paper No. 1370/7th term of the Sejm, as well as by the results of public opinion polls – cf. below).

However, I am fully aware that for the followers of Orthodox Judaism who practice their religion in Poland, and who are not vegetarians, the ban on ritual slaughter would necessitate import of kosher meat. Due to additional costs related thereto, this would constitute an excessive (disproportionate) restriction of the freedom of religion (cf. the ECHR judgment of 27 June 2000 in the case of Cha’are Shalom Ve Tsedek v. France, application no. 27417/95, as well as E. Łętowska et al. “Prawo UE o uboju zwierząt i jego polska implementacja: kolizje interesów i ich rozwiązywanie”, part I, Europejski Przegląd Sądowy No. 11/2013, p. 17).

A total ban on ritual slaughter in Poland together with permission for the import of meat obtained from such slaughter (where such permission may not be ruled out in the light of Article 26(4) of the Council Regulation (EC) No. 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, OJ L 303 of 18.11.2009, p. 1; hereinafter: the Council Regulation (EC) No. 1099/2009) would also be ethically questionable. Indeed, it is hard to evaluate this differently than as indirect permission for slaughter without stunning, but carried out “by someone else” – outside the territory of Poland (cf. reservations concerning the transport of animals abroad to kosher slaughterhouses – part III, point 8.3 of the statement of reasons of the Tribunal’s judgment under discussion). By contrast, responsibility for ensuring the freedom of conscience and religion in the case of persons residing in Poland is an obligation of the Polish state which may not be reassigned to other entities.

Given the above, I would be willing to accept the reversal of the ban on ritual slaughter – by way of exception and with the guarantee of maximum respect for animal welfare – for the purpose of meeting the needs of the followers of Judaism in Poland, provided that – at the same time – there would be a ban on exporting kosher meat. I believe that such a solution is feasible; what may serve as a model is a number of effective regulations which are in force, for example, in Austria and Germany (cf. the letter of the Minister of Foreign Affairs of 30 September 2014, pp. 2 and 4, as well as annex no. 2 to the letter of 29 September 2014 issued by the Minister for Agriculture and Rural Development (hereinafter: the Minister for Agriculture)).

 

Moving on to legal issues, I raise the following reservations with regard to the judgment of the Constitutional Tribunal:

 

2. The admissible scope of the review in the present case

I hold the view that the judgment of the Constitutional Tribunal is defective as regards its formal aspects, for it goes beyond the admissible scope of the review in the present case, specified by Article 191(2) of the Constitution and Article 66 of the Constitutional Tribunal Act.

 

2.1. Firstly, the Constitutional Tribunal should have limited its review to the examination of the ban on ritual slaughter in the context of the rights and freedoms of the followers of Judaism, and should not have adjudicated on “particular methods of slaughter” prescribed by “religious rites” [unspecified in the operative part of the judgment].

What follows from the statement of reasons for the judgment (cf. part III, points 2.3 and 2.4) is that the Constitutional Tribunal took account of the fact that the Association of Jewish Religious Communities in the Republic of Poland (hereinafter: the Association or the applicant) enjoys special locus standi (limited within the scope ratione materiae), but the review proceedings instituted by the Association are abstract in character (they do not amount to examining the challenged legal norms only in the context of circumstances directly related to the Association). The Tribunal indicated, as additional arguments, the efficiency of court proceedings and the necessity to respect the equality of religious organisations.

The above findings, which are also based on the previous jurisprudence of the Constitutional Tribunal, are apt in my view. However, my reservations concern the way in which they are applied in the context of the present case.

In the light of Article 191(2) of the Constitution, a religious organisation may lodge an application with the Constitutional Tribunal if a challenged normative act relates to matters relevant to the scope of the organisation’s activity. In these review proceedings, matters falling within the ambit of the activity of the aforementioned Association primarily comprise activities enumerated in Article 9 of the Act of 20 February 1997 on Relations Between the State and Jewish Religious Communities in the Republic of Poland (Journal of Laws – Dz. U. No. 41, item 251, as amended; hereinafter: the Act on Jewish Religious Communities), and in particular: observing religious rites and performing ritual activities; taking care of the provision of kosher food, eateries, ritual baths as well as ritual slaughter. It is obvious that the rites and ritual activities meant here are not rites and ritual activities required by any religion, but only those that arise from precepts accepted in Judaism. Thus, the scope of the applicant’s activity does not include undertaking action with regard to any rites or ritual activities of other religions, even if they display certain similarities to Judaic ones (in practice, what is meant here is, above all, ritual slaughter prescribed by the precepts of Islam, as mentioned in the statement of reasons for the judgment – cf. part III, points 1.2 and 6.1). At the same time, I hold the view that it would not be justified to narrow down the scope of the operative part of the judgment solely to ritual slaughter carried out to meet the needs of members of Jewish religious communities which make up the aforementioned Association. Many initiatives undertaken by the applicant are targeted externally and involve the participation of third parties (e.g. enthusiasts or foreign guests). Thus, it is justified to assume that, also in the present case, the Association undertakes action not only for the sake of its members (or more precisely: persons making up particular religious communities), but as a representative of all persons practising Judaism in Poland. Indeed, it ought to be remembered that, in Poland, apart from the Association of Jewish Religious Communities, at least four other organisations group together followers of Judaism: the Independent Community of Jewish Faith, the Independent Israelite Religious Community in Poznań, the Religious Community of Orthodox Jews in Poland, Beit Poland – the Association of Progressive Jewish Communities (registered in the Register of Churches and Religious Organisations, in the years 2000-2009, under the following reference numbers, respectively: 150, 152, 155 and 171). The abstract character of the review proceedings in the present case should thus be reflected in the operative part of the judgment by including all followers of Judaism in Poland, regardless of their affiliation to a particular organisation. Similar conclusions may be drawn from the content of the higher-level norms for the review indicated by the applicant (cf. below).

The above findings correspond to the intention of the applicant Association, which (although acknowledged the existence of the Muslim rules of ritual slaughter) focused on the significance of adherence to Jewish dietary rules for the followers of Judaism, without linking this with the membership in the Association of Jewish Religious Communities. This is confirmed by the content of the application (e.g. p. 18: the ban on ritual slaughter “constitutes excessive interference in the religious freedom of the followers of Judaism who practice in Poland”). Although the petitum mentions “religious organisations with a regulated legal situation”, at the hearing it turned out that this was meant to allude to the wording of Article 34(5) of the Animal Protection Act which was binding until 2002, and not to include the followers of Islam in the scope of the allegation (cf. the following statements made by the attorney of the applicant at the hearing: “When presenting the applicant’s stance, I also mentioned Islam (…). But, of course, the application addresses the freedom of religion only within the scope concerning the Jewish community, or the followers of Judaism, in Poland”; “Despite the fact that we’ve narrowed down, since we have to, the scope of the application to the rights and freedoms of members of the Jewish community, the Association of Jewish Religious Communities sympathises with Muslims who are in an analogical situation” – pp. 22 and 76 of the verbatim record of the hearing).

In this context, a much broader approach adopted by a majority of judges adjudicating in the present case infringes the principle that the Tribunal adjudicates within the limits of the application (cf. Article 66 of the Constitutional Tribunal Act). This may also have further repercussions for the understanding of special and general locus standi in review proceedings before the Constitutional Tribunal, by blurring legal boundaries between them (despite a clear distinction drawn between the two legal institutions in Article 191 of the Constitution). If the said approach were to be applied consistently, religious organisations would gain competence to freely challenge any regulations pertaining to the freedom of religion, understood in a broad sense, even if potentially negative effects of the challenged provisions did not directly affect the said organisations, or followers of a particular religion. In all probability, verging on certainty, it may indeed be assumed that every religious organisation with a regulated legal situation is concerned with coordinating religious practice and addressing matters of faith, and sometimes only from the context of such provisions it becomes clear what religion this is.

However, when the Constitutional Tribunal has decided to stretch the effects of the judgment to include any religious rites which may potentially be practised in Poland, this should be appropriately reflected in the statement of reasons for the judgment. However, it only mentions two kinds of ritual slaughter: slaughter prescribed by Judaism and Islam; yet, at the same time, they are not discussed in detail to the same extent (shechita is analysed quite thoroughly, whereas Islamic ritual slaughter is merely touched upon; cf. part III, points 1.2 and 6.1 of the statement of reasons for the judgment).

To sum up this part of my remarks, I would like to emphasise that the applicant’s special locus standi should only prompt the Constitutional Tribunal to restrict the scope of the allegation, and not to discontinue the review proceedings (as requested in these proceedings by the Sejm).

 

2.2. Secondly, the “territorial” scope of the judgment of the Constitutional Tribunal should have been delineated differently. I hold the view that the Tribunal should have adjudicated on the admissibility of the ban on ritual slaughter carried out to meet the demand on the domestic market (i.e. the needs of the followers of Judaism practising in Poland), leaving aside the question of the admissibility of the export of kosher meat (i.e. ritual slaughter carried out to meet the needs of believers who practise Judaism abroad).

In this context, it seems to me that the summary of the arguments presented by the applicant’s representative at the hearing (and included in part II of the statement of reasons for the judgment) is ambiguous. What I have in mind here is, in particular, the statement that allegedly the representative “consistently indicated that the scope of the application does not include the potential export of meat obtained from ritual slaughter”. One may conclude from the above that the said issue is irrelevant to the Association and that it has no opinion on the matter, which is not true.

At the hearing, the applicant’s representative raised several allegations about the lack of respect for the religious freedom of the followers of Judaism in Poland (cf. the above quoted excerpts from the verbatim record). The said issue was also elaborated on in one longer speech, which – so as to avoid any misunderstanding – should be quoted in extenso here: “By filing the application, the Association of Jewish Religious Communities, aims only to ensure that it will be possible to carry out ritual slaughter in Poland to meet the needs of the Jewish community in Poland. Our intention is not – to put this colloquially – to legalise the export of meat obtained from ritual slaughter in Poland. This is not the intention of the Association of Jewish Religious Communities. Such a thesis does not appear in the application. It does appear in the arguments presented by the Public Prosecutor-General and the Sejm, and it is erroneously attributed to us (…). Obviously, depending on the type of determination arrived at by the Constitutional Tribunal, and its wording, there may be a side-effect of simple legalisation of ritual slaughter that the said slaughter, when not barred by any restrictions, could lead to the production of meat intended for export. But I imagine (…) a proper legislative solution – possibly shaped by a ruling of the Tribunal declaring constitutionality or unconstitutionality only within a certain scope – which would allow one to deem that the legislator permits (…) ritual slaughter carried out to meet the needs of the Jewish community in Poland, and this is what we are striving for” (p. 20 of the verbatim record of the hearing).

The above quotes clearly show that the applicant’s intention was that the Constitutional Tribunal would examine only the ban on ritual slaughter carried out to meet the demand on the domestic market. Even if the application itself raised doubts in that respect (in my view – unjustified doubts, cf. the clear presentation of that issue on p. 18), the above quotes should be regarded as the withdrawal of the application by the applicant’s representative in the part which concerns obtaining kosher meat for the foreign market (for export). Speculations voiced by the applicant’s representative as regards the effect of a potential ruling issued by the Constitutional Tribunal within a broader scope (i.e. not on constitutionality or unconstitutionality within a very narrow scope) were triggered by a question posed by one of the judges adjudicating on the present case; they were not expressed on the representative’s own initiative. They were preceded by several remarks in which the applicant’s representative clearly stressed the territorial scope of the application, inter alia, with relation to the adequate higher-level norms for the review. What follows from the speculations is that the applicant would be satisfied with any determination of the Constitutional Tribunal which would legalise ritual slaughter (either within a narrow scope which is concurrent with the application or a scope that is broad and goes beyond the ambit of the application). From the objective point of view, this thesis is logical and concurrent with the applicant’s interest, but one may not derive therefrom a request for the Constitutional Tribunal to adjudicate contra legem.

 

2.3. In my view, the fact that the applicant’s intention was not taken into account in the context of the subject of the allegation in the two above aspects is tantamount to a departure from the principle that the Constitutional Tribunal is bound by the limits of a given application (cf. Article 66 of the Constitutional Tribunal Act).

The Association of Jewish Religious Communities referred to the Constitutional Tribunal in order to defend the interests of the followers of Judaism in Poland, but – by the Tribunal’s ruling – it has become the initiator of the re-introduction of ritual slaughter on a mass scale and for export. I believe that such redefinition of the objectives set in the application may not be justified by legal categories. In particular, it would be groundless to rely on the principle of falsa demonstratio non nocet, which may only be applied to reconstruct the scope of the allegation as intended by an applicant, and may not be used as a pretext to exploit the applicant’s trust. This would also be inconsistent with the principle of loyalty towards applicants referring to the Constitutional Tribunal that are entitled to the exclusive right to determine the scope of the examination of their case (cf. Article 66 of the Constitutional Tribunal Act) and indirectly – also the effects of the anticipated ruling.

 

2.4. The above critical remarks are also relevant with regard to the other issue submitted for assessment by the Constitutional Tribunal, i.e. criminal provisions concerning ritual slaughter (cf. point 2 of the operative part of the judgment). The said issue does not require further discussion.

 

2.5. I hold the view that the insufficient insight on the part of the Constitutional Tribunal within the indicated scope also indirectly stems from the fact that the application submitted by the Association was not referred for joined examination together with the application of 24 October 2014 filed by the Polish Ombudsman (the two applications were similar in subject matter).

In my opinion, there were neither formal nor actual obstacles to consider the two applications together. The subject matter and the higher-level norms for review had been specified in a similar way in both applications, filed to institute review proceedings. Bearing in mind that the ban on ritual slaughter had been in force since 1 January 2013, a possible slight delay due to joining cases (caused by the necessity to obtain the stance of the Sejm and of the Public-Prosecutor General) would not have triggered any serious negative effects. Indeed, there was no urgency to select a particular date for the hearing, as the Tribunal – unlike animals intended for slaughter – had “nothing to lose”.

What weighs in favour of joining the said cases is not only the need for the efficiency of proceedings, but also the systemic role of the Polish Ombudsman. In contrast to the applicant Association, which for obvious reasons was interested in the outcome of the proceedings, the Ombudsman could, in an objective way, have discussed the consequences of the ban on ritual slaughter also for persons of a different religion than Judaism (including Muslims) as well as for opponents of ritual slaughter. As a result, the judgment of the Constitutional Tribunal would be more comprehensive in character, taking account of all aspects of ritual slaughter.

I believe that the participation of the Ombudsman always constitutes an added value in review proceedings before the Constitutional Tribunal. This was also the legislator’s assumption, as he explicitly provided for a possibility that the Ombudsman could get involved in cases initiated by a constitutional complaint (cf. Article 51 of the Constitutional Tribunal Act). So far, applications lodged by the Ombudsman have usually been regarded as priority submissions, and were considered earlier than cases filed by other applicants (even irrespective of the date when they were received by the Constitutional Tribunal; cf. e.g. judgments delivered by the full bench of the Tribunal with regard to large-scale shopping facilities: the judgment of 8 July 2008, ref. no. K 46/07, OTK ZU No. 6/A/2008, item 104 and the decision of 5 November 2008, ref. no. K 60/07, OTK ZU No. 9/A/2008, item 161) or were at least considered jointly with other applications (cf. e.g. the judgments of: 30 July 2014, ref. no. K 23/11, OTK ZU No. 7/A/2014, item 80 and 18 September 2006, ref. no. SK 15/05, OTK ZU No. 8/A/2006, item 106). In my opinion, the said departure from that good practice is unjustified and fraught with consequences.

 

3. The assessment of the constitutionality of the challenged provisions

Due to the fact that the Constitutional Tribunal has erroneously determined the admissible scope of the allegation, its judgment is also – in my opinion – incorrect in respect of the merits.

3.1. Despite ethical reservations, from a purely legal point of view, I agree with the opinion expressed in the judgment in question that the right to live in accordance with the precepts of a given religion (in the case under examination: the right to consume kosher meat) may justify a derogation from a prohibition to carry out animal slaughter without prior stunning. An absolute ban on ritual slaughter constitutes a restriction of the freedom of religion and is somewhat justified in the light of public morals (indeed, it reflects the requirement that the slaughter of farmed animals should be carried out by the most humane methods, i.e. after stunning the animals – cf. below). Still, the ban should be assessed as excessive (disproportionate) with regard to the followers of Orthodox Judaism in Poland – within that narrow scope, the state’s constitutional obligation to guarantee the freedom of religion should take precedence over moral reservations.

Obviously, the aforementioned solution may be accepted after additional requirements are fulfilled. Above all, it is necessary to have effective mechanisms for supervision as well as for prevention of any avoidable suffering of animals. This should comprise, inter alia, an absolute ban on the use of casting pens which make it more convenient for slaughterers to carry out the slaughter of cattle where the animals are in an unnatural inverted position (upside down); this, inter alia, causes animals to experience greater fear, makes them choke on their blood and the content of their stomachs, as well as prolongs almost 10-fold the time between the moment of immobilising a given animal and its death (cf. shocking data on ritual slaughter carried out with the use of upright bovine restraining pens and rotary casting pens: “Opinion of the Scientific Panel on Animal Health and Welfare on a request from the Commission related to welfare aspects of the main systems of stunning and killing the main commercial species of animals”, EFSA Journal Issue No. 45/2004, pp. 1-29, <http://www.efsa.europa.eu/en/scdocs/doc/45.pdf>; hereinafter: the EFSA Opinion, p. 25 as well as other guidelines included in that document and supported by reliable research).

 

3.2. The judgment of the Constitutional Tribunal in the present case does not however ensure that ritual slaughter will be carried out solely for the purpose indicated above, i.e. to guarantee the freedom of religion to the followers of Judaism in Poland (cf. Article 53 of the Constitution). The outcome of the judgment (it is hard to believe that it might be unintended) is the total liberalisation of rules governing ritual slaughter, which now may be carried out for any purpose (also to meet the needs of the followers of Judaism, or connoisseurs, living abroad).

The said issue is significant, because (despite appearances) the largest group of persons interested in a change of the currently binding provisions is not the group of relatively few followers of Judaism (according to data collected during the latest census carried out by the Central Statistical Office of Poland in 2011, the number of people who declared their ethnicity as Jewish – usually concurrently with Polish nationality, rarely as their sole nationality – amounted to slightly over 7.5 thousand respondents (cf. Ludność. Stan i struktura demograficzno-społeczna. Narodowy Spis Powszechny Ludności i Mieszkań 2011, Warszawa 2013, <http://stat.gov.pl/spisy-powszechne/nsp-2011/nsp-2011-wyniki/ludnosc-stan-i-struktura-demograficzno-spoleczna-nsp-2011>,16,1.html, p. 91), among whom only some – most probably very few – observe the most restrictive dietary rules. The largest group of stakeholders are the breeders of animals for ritual slaughter, the owners and employees of kosher slaughterhouses as well as numerous intermediaries who are involved in the import of meat coming from ritual slaughter, i.e. business operators and persons who are economically dependent on them (cf. e.g. D. Pawłowiec, “Przegrany bój o ubój”, Uważam Rze of 30 November 2014, as well as citizens’ bill on lifting the ban on ritual slaughter, drafted by those groups, included in the Sejm Paper No. 2349/7th term of the Sejm, presenting only economic arguments).

The aptness of the above thesis is confirmed by, at least, the following circumstances:

Firstly, as much as 25% of the document entitled “Procedury dotyczącej warunków uboju i produkcji koszernej na terenie Polski” (Eng. Procedures concerning the conditions of animal slaughter and the production of kosher food in Poland) – adopted by the Chief Rabbi of Poland and the Head of the Veterinary Inspectorate in Poland on 8 December 2011 (the document was provided to the Constitutional Tribunal at the hearing) – was devoted to the discussion of rules for certifying meat for export. The said activity constituted an essential source of income of a Jewish community (cf. “Aszkenazy: Żyda w Polsce obowiązuje polskie prawo” [an interview entitled “Aszkenazy: A Jew in Poland should obey Polish law” by E. Siedlecka with S. Aszkenazy, the President of Beit Poland – the Association of Progressive Jewish Communities], [in:] Gazeta Wyborcza of 18 July 2013,<http://wyborcza.pl/1,76842,14294804,Aszkenazy__Zyda_w_Polsce_obowiazuje_polskie_prawo.html>).

Secondly, statistical data are also striking. In accordance with data provided in the present case by the Minister for Agriculture, in 2011, almost 5 million farmed birds and over 160 thousand cows were killed without prior stunning (additionally, in the course of ritual slaughter after stunning, the numbers were: almost 53 million farmed birds and almost 62 thousand cows). Such amounts of obtained meat significantly exceed the total consumption of meat by the orthodox followers of Judaism and Islam (there are no accurate data in that respect, but one may estimate that certainly this is a group that consists of no more than a few thousand people, and most likely it is much smaller; according to S. Aszkenazy, no more than 20 Orthodox Jewish families reside permanently in Poland, and to meet their needs, it would suffice to carry out the ritual slaughter of one cow a month: cf. ibid.). In this context, it does not surprise that – as provided by the said Minister for Agriculture – in 2011 kosher meat constituted approximately 30% of exported beef and approximately 10% of exported poultry meat.

Article 53 of the Constitution (i.e. a basic higher-level norm for the review in the present case) may not justify derogation from a ban on ritual slaughter carried out as part of the mass production of kosher meat for export. The said provision guarantees the freedom of religion to “everyone”, which – by definition – comprises only persons or entities that are subject to the jurisdiction of the Polish state, i.e. those that reside in Poland, and not abroad (access to kosher meat for Poles who are followers of Judaism and who live abroad is already regulated by the provisions of the country where they reside; in this case, the principle of territoriality takes precedence). Thus, in the light of Article 53 of the Constitution, one may at most (although I have moral reservations in that respect) introduce an exception to the ban on ritual slaughter to meet the needs of the domestic market, due to the freedom of religion of persons who live in the Polish territory. The good of the person and his/her clear conscience are higher values than the welfare of animals (although even in the case of ritual slaughter the said welfare should not be undermined).

However, in the light of Article 53 of the Constitution, Poland has no obligation (or possibility) to guarantee the freedom of conscience and religion to persons who are outside its borders. In the case of the export of meat obtained from ritual slaughter, there is a conflict of totally different values – public morals (prohibition against cruel treatment of animals) competes here not with the freedom of religion (within the scope that is guaranteed by the Constitution), but with the freedom of economic activity (cf. Articles 20 and 22 of the Constitution). Not only does this have a different axiological overtone, but it also remains outside the admissible scope of the review in the present case.

Therefore, I hold the view that the challenged provisions are unconstitutional only insofar as they prohibit and penalise the carrying out of shechita (ritual slaughter inter alia without prior stunning of animals) to meet the needs of the domestic market. For the judgment of the Constitutional Tribunal to have a proper effect, this should have been marked directly in the operative part of the judgment (a similar stance in the present case was taken by the Public Prosecutor-General and it may also be derived from the said application of the Ombudsman). This would also reflect the intentions of the applicant Association, which – as it has been determined above – clearly argues that the ban on ritual slaughter “constitutes excessive interference in the freedom of religion with regard to the followers of Judaism in Poland” (cf. p. 18 of the application).

 

3.3. I am not convinced by the explanation, provided twice in the statement of reasons for the judgment, that the end use of kosher meat is an issue “of secondary importance” and falls within the discretion of the legislator, and it was not and could not be the subject of adjudication (cf. part III, points 1.6 and 11.2 of the statement of reasons for the judgment). Indeed, the operative part of the judgment (i.e. including the requirement to permit slaughter prescribed by religious rites, mentioned therein) concerns – in accordance with the lege non distiguente rule – all meat obtained from ritual slaughter, i.e. both that obtained to meet the needs of the domestic market as well as that meant for export. Thus, one may not deem that the Constitutional Tribunal has not adjudicated about that: since it has ruled on the entirety of the issue, it has also ruled on the part thereof, with all the implications of such a ruling.

As a side remark, one ought to point out that in the jurisprudence of the Constitutional Tribunal, it is accepted, without any reservation, to “divide” the subject of allegations raised by an applicant initiating review proceedings (e.g. in terms of adequate higher-level norms for the review, changes in the wording of provisions, and formal considerations, including the locus standi of the applicant or justification for the allegations) and to adjust the outcome of the proceedings accordingly. Most frequently, this takes on the form of a ruling on the merits of indicated parts of a challenged regulation and the discontinuation of the review proceedings within the remaining scope (cf. e.g. the judgments of: 22 October 2013, ref. no. SK 14/13, OTK ZU No. 7/A/2013, item 100; 8 October 2013, ref. no. SK 40/12, OTK ZU No. 7/A/2013, item 97 and 17 November 2009, ref. no. SK 64/08, OTK ZU No. 10/A/2009, item 148), but it sometimes consists in assigning allegations to particular passages or parts of the challenged provisions and assessing them separately (e.g. the judgments of: 25 October 2012, ref. no. SK 27/12, OTK ZU No. 9/A/2012, item 109; 19 October 1999, ref. no. SK 4/99, OTK ZU No. 6/1999, item 119 and 28 June 2000, ref. no. K 25/99, OTK ZU No. 5/2000, item 141). I see no reason why such methodology could not be applied in the present case. This would have made it possible to issue a ruling that would be consistent with the applicant’s intention, even if the Constitutional Tribunal had upheld its determination about the broad scope of the assessment of the present case, which I have challenged here.

 

4. Remarks on the statement of reasons for the judgment

Regardless of the above, I hold the view that the statement of reasons for the judgment I contest here contains numerous mistakes and inconsistencies, some of which are glaring. Apart from the defects already mentioned above (especially the excessively broad interpretation of the oral submissions of the applicant’s representative at the hearing, as regards the scope of the allegation, and the groundless conclusion that the issued ruling does not concern the end use of meat obtained from ritual slaughter), the following should be pointed out:

 

4.1. The level of cruelty of ritual slaughter and conventional slaughter (cf. part III, point 8.2.2 of the statement of reasons for the judgment)

I definitely disagree with the assertions made in the statement of reasons that the outcome of certain scientific research merely “suggests” (part III, point 8.2.2 of the statement of reasons) that ritual slaughter (without prior stunning) is crueller than animal slaughter that follows the induction of unconsciousness, or that such research “produces no conclusive results” in that respect (ibid.).

Firstly, the assertions have not been properly proven.

The statement of reasons has been limited to citations from the Council Regulation (EC) No. 1099/2009 and the conclusion that “methods of animal slaughter with prior stunning are considerably varied” (i.e. this implies that they may bring about different results as regards the scale of animal suffering, not always worse than ritual slaughter).

In the light of the obligation that lies with the Constitutional Tribunal to “examine all relevant circumstances in order to comprehend the case in every respect” (cf. Art. 19(1) of the Constitutional Tribunal Act), one would expect at least an analysis of available scientific research, and at most perhaps also admitting evidence (as provided for in Art. 19(2) of the Constitutional Tribunal Act), for instance, from the opinion of an expert veterinarian or a specialist from the field of animal sciences.

The Constitutional Tribunal is obviously a court of law, and not a court of facts. However, since it presents its views authoritatively with regard to facts (the cruelty of ritual slaughter in comparison with conventional slaughter), and where determining the said facts is indispensable for further legal evaluation (in particular, the assessment of compliance of the ban on ritual slaughter with the protection of public morals and the freedom of religion), the Tribunal is obliged to be duly diligent in that respect.

One cannot help but point out here significant formal negligence on the part of the Constitutional Tribunal, namely, in the statement of reasons, the Tribunal overlooked certain submissions that – with the Tribunal’s permission – had been included in the case file, or correspondence that had been received by the judges. The Constitutional Tribunal made no mention – not even in one sentence – of submissions of 7 August, 3 and 23 October as well as 12 November 2014, filed by the Polish Ethics Society, as amicus curiae, despite the fact that, in a letter of 29 August 2014, the Secretary of the Constitutional Tribunal – authorised by the judge presiding over the adjudicating bench in the present case – granted permission for the Polish Ethics Society to present its opinion, indicating that the said opinion should be made “available to the Tribunal within a time-limit that would make it possible, if needed, to use the opinion in the course of the proceedings”. The statement of reasons also overlooks the statement issued by the Chief Rabbi of Poland, Mr Michael Schudrich, dated 18 July 2014 (however, this was of lesser significance as Mr Schudrich was allowed to voice his opinion at the hearing, and his arguments corresponded to the views presented in his letter).

I mention this not only because a statement of reasons for a judgment should faithfully recount the course of proceedings (including the content of a relevant court file which constitutes the basis for adjudication), but also due to the fact that a more thorough consideration of the said documents would have made it possible – in my view – to determine (which was deemed as unclear by a majority of the judges adjudicating on this case) the level of suffering inflicted on animals during ritual and conventional slaughter. The said documents indicated and discussed results of scientific research which might have been the basis for correct findings in that respect. Some of them were mentioned by the Public Prosecutor-General in his written submission and by the representative of the Minister for Agriculture at the hearing, which was also ignored by the Constitutional Tribunal.

Secondly, in the light of numerous reports on the welfare of farmed animals at the time of slaughter, which are available to the public, I have no doubt that – despite the opinion of the Constitutional Tribunal – it is possible to make an objective comparison between ritual slaughter and conventional slaughter. One should take account of material indicated in the case file of the proceedings as well as that referred to at the hearing, including the following documents:

-        the Opinion of the Scientific Panel on Animal Health and Welfare of the European Food Safety Authority on a request from the European Commission (the aforementioned EFSA Opinion), taken into account by the Polish Ethics Society and the Public Prosecutor-General;

-        documents compiled as part of the DIALREL project, funded by the European Commission, including the aforementioned DIALREL recommendations (prepared jointly by scientific experts, stakeholders and religious organisations), which were cited by the Polish Ethics Society, the Public Prosecutor-General, as well as the representative of the Minister for Agriculture who was present at the hearing; and also the 2010 veterinary report on good and adverse practices in the context of animal slaughter (Report on good and adverse practices – Animal welfare concerns in relation to slaughter practices from the viewpoint of veterinary sciences <http://www.vetjournal.it/archivio_pdf/2010/4069.pdf >; hereinafter: the DIALREL veterinary report);

-        reports by the Farm Animal Welfare Council (FAWC), an advisory body of the Department for Environment, Food and Rural Affairs, (e.g. Report on the Welfare of Farmed Animals at Slaughter or Killing Part 1: Red Meat Animals (2003)), <https://www.gov.uk/government/publications/fawc-report-on-the-welfare-of-farmed-animals-at-slaughter-or-killing>; hereinafter: the FAWC Report), cited by the Public Prosecutor-General;

-        papers by Prof. Temple Grandin (cf. <http://www.grandin.com/ritual/rec.ritual.slaughter.html>), who was cited as a scientific authority by the applicant’s representative (in the said letter of Rabbi M. Schudrich and in his arguments presented at the hearing – cf. pp. 64-65 of the verbatim record of the hearing).

For the purpose of this dissenting opinion, it suffices to cite the following theses from the above-mentioned documents:

-        “Most animals which are slaughtered in the EU for human consumption are killed by cutting major blood vessels in the neck or thorax so that rapid blood loss occurs.  If not stunned, the animal becomes unconscious only after a certain degree of blood loss has occurred whilst after greater blood loss, death will ensue. The animals which are slaughtered have systems for detecting and feeling pain and, as a result of the cut and the blood loss, if not stunned, their welfare will be poor because of pain, fear and other adverse effects. The cuts which are used in order that rapid bleeding occurs involve substantial tissue damage in areas well supplied with pain receptors. The rapid decrease in blood pressure which follows the blood loss is readily detected by the conscious animal and elicits fear and panic. Poor welfare also results when conscious animals inhale blood because of bleeding into the trachea.  Without stunning, the time between cutting through the major blood vessels and insensibility, as deduced from behavioural and brain response, is up to 20 seconds in sheep, up to 25 seconds in pigs, up to 2 minutes in cattle, up to 2 1/2 or more minutes in poultry, and sometimes 15 minutes or more in fish” (the EFSA Opinion, p. 5);

-        “Some studies on neck cutting in cattle have shown that delays in time to loss of consciousness can vary (…). Most sheep and goats seem to lose consciousness within 2 to 20 seconds after ventral neck cutting, but sheep can show signs of recovery for longer times in exceptional cases. Most chickens lose consciousness after between 12 and 15 seconds, but signs of recovery/consciousness are possible for up to 26 seconds after the cut” (the DIALREL recommendations, s. 9);

-        “The level of restraint required to expose the throat, perform an effective cut and hold the animal still until it has bled out is greater than is needed for conventional slaughter. (…) The operation of the restraint itself takes particular skill to ensure that the animal is held in an appropriate position with the neck extended for an effective cut to be made with speed and accuracy. Restraining pens of this type may cause higher levels of distress than conventional stunning boxes and for a longer period of time.”(the FAWC Report, pp. 33-34);

-        “When a very large transverse incision is made across the neck a number of vital tissues are transected including: skin, muscle, trachea, oesophagus, carotid arteries, jugular veins, major nerve trunks (e.g. vagus and phrenic nerves) plus numerous minor nerves. Such a drastic cut will inevitably trigger a barrage of sensory information to the brain in a sensible (conscious) animal. We are persuaded that such a massive injury would result in very significant pain and distress in the period before insensibility supervenes” (the FAWC Report, p. 35);

-        At the time of ritual slaughter “it appears that the animal is not aware that its throat has been cut” [the above observation concerned ritual slaughter carried out in very good conditions, inter alia, on individual animals that were held in an upright position]; however, “[f]urther observations of kosher slaughter conducted in a poorly designed holder (…) resulted in vigorous reactions from the cattle during the cut. The animals kicked violently, twisted sideways, and shook the restraining device” (T. Grandin, J. M. Regenstein, “Religious slaughter and animal welfare: a discussion for meat scientists”, Meat Focus International March 1994, pp. 115-123, <http://www.grandin.com/ritual/kosher.slaugh.html>);

-        “Scientific researchers agree that sheep lose consciousness within 2 to l5 seconds after both carotid arteries are cut (…). However, studies with cattle and calves indicate that most animals lose consciousness rapidly, however, some animals may have a period of prolonged sensibility (…) that lasts for over a minute. (…) When a shochet uses a rapid cutting stroke, 95% of the calves collapse almost immediately (…).When a slower, less decisive stroke was used, there was an increased incidence of prolonged sensibility [the rules of shechita determine that the slaughter should be performed by one incision, but they do not determine a time-limit on the incision – added by WH] Approximately 30% of the calves cut with a slow knife stroke had a righting reflex and retained the ability to walk for up to 30 seconds”. (T. Grandin, J. M. Regenstein, op. cit.).

-        “Captive bolt and electric stunning will induce instantaneous insensibility when they are properly applied. However, improper application can result in significant stress. All stunning methods trigger a massive secretion of epinephrine (…). This outpouring of epinephrine is greater than the secretion which would be triggered by an environmental stressor or a restraint method. Since the animal is expected to be unconscious, it does not feel the stress. One can definitely conclude that improperly applied stunning methods would be much more stressful than [properly conducted] kosher slaughter with the long straight razor sharp knife.” (T. Grandin, J. M. Regenstein, op. cit.);

-        I have found that the ancient method of kosher slaughter
can be the most humane, or terribly cruel, depending on the shochet’s skill
and the methods used. (…) I also observed that some shochets were better than others in their ability to cause rapid unconsciousness [in animals]. All of the cuts were correct from a religious standpoint, but some shochets were more biologically effective. A swift cut was more effective than a slower one. In the hands of the best shochets, the animal does not make a sound or flinch, and drops unconscious in 8 to 10 seconds. (…) I know that shechitah, done right, is the most humane slaughtering method.” (T. Grandin, “Kosher Slaughter Done Right”, Jerusalem Post of 16 December 2004, <
http://rrrina.com/temple_grandin.htm>; also, in this instance, the comment concerns animal slaughter carried out in non-industrial conditions).

-        “Without making a value [moral] judgement it can be stated that neck cutting without stunning poses the highest risk for animal welfare because restraining for the cut and during bleeding imposes extra manipulation to the animal [in comparison with conventional slaughter]. Additionally, [in the case of slaughter without prior stunning] pain, suffering and distress during the cut and during bleeding are highly likely. The latter is partly reduced during stunning post neck cutting, which represents an intermediate risk for animal welfare. Although stunning methods themselves involve risks to animal welfare which have to be managed, stunning prior to neck cutting represents the lowest risk for overall compromise of animal welfare” (the DIALREL veterinary report, p. 60).

It seems to me that the above theses are convergent as regards the main points. It is obvious to me that properly conducted ritual slaughter is crueller for animals than properly conducted slaughter by standard methods (among which, in my opinion – as well as according to the representative of the Minister for Agriculture – the mildest method, appears to be animal slaughter with prior stunning by a gas method, with the use of inert gases). This is so because at the time of ritual slaughter actions intended to directly cause the death of an animal (cutting its throat) must, for doctrinal reasons, take place at the stage when an animal is still completely conscious and able to feel pain, whereas during conventional slaughter the order of those actions is reversed (i.e. an animal is to be killed after it has already lost consciousness). In the case of ritual slaughter: “animals subjected thereto do not lose consciousness right after the incision is made on the neck, and experience extreme suffering caused by the pain of the wound, a sudden fall in blood pressure and, in many cases, choking on the blood (often mixed with stomach contents that got to the cut trachea and lungs). At this stage, it is hard to measure the suffering, as the affected animal is restrained and cannot vocalise any sounds (moo, bleat) for its trachea has been cut” (A. Elżanowski, “Religijne okrucieństwo” [Eng. “Religious Cruelty”], Rzeczpospolita of 22 May 2012, <http://www.rp.pl/artykul/879665.html>; cf. also detailed information on fear, pain and distress of animals at the time of slaughter, conducted by various methods, provided in the DIARER veterinary report). This basic difference between ritual slaughter and conventional slaughter is also clearly pointed out even by Prof. T. Grandin, whose scientific research was cited by the applicant in the present case (cf. above). The period between an incision is made on an animal’s throat and the loss of consciousness by the animal in the case of ritual slaughter may obviously, and should, be minimised, due to the skills of a shochet and the appropriate quality of a knife used by him (cf. guidelines provided in all the above-cited documents); however, in the course of conventional slaughter, there is no such stage at all.

At the same time, I wish to point out that conclusions on the welfare of animals at the time of slaughter should be drawn, by comparing the typical course of conventional and ritual slaughter which meets standards provided for each type of slaughter (i.e. a proper course, but not necessarily an ideal one). Thoughtlessness, carelessness, ignorance or intended cruelty may worsen the situation of animals in both cases, and making comparisons between such facts makes little sense (in most instances, properly conducted slaughter – regardless of a method used – would always be relatively more beneficial for animals than slaughter carried out in an inappropriate way). By contrast, the Constitutional Tribunal, just like the applicant, recognised only that irregularities may occur in the course of conventional slaughter (cf. part III, points 8.2.1 and 8.2.2 of the statement of reasons for the judgment, and the said letter of Rabbi M. Schudrich). To balance things out, the Tribunal should have mentioned data which show that, in the context of ritual slaughter on a mass scale, the minimum number of cuts required to sever the major blood vessels of the neck ranged from 1 to 6 in sheep, and from 1 to as many as up to 60 (!) sweeps of knife for cattle, the average number of cuts for cattle was 3.2 cuts (cf. the DIALREL veterinary report, pp. 31-32). In this context, one should note that meat obtained from an animal that was cut more than once should be regarded, on the basis of the principles of shechita, as non-kosher and ought to sold on the general market, and the excluding of the so-called rejects additionally increases the scale of ritual slaughter, beyond the level of the actual demand for kosher meat.

 

4.2. The rank of the freedom of religion and the scope of the state’s obligations (part III point 6.3 of the statement of reasons)

In the statement of reasons for the judgment, what is repeatedly stressed is the special significance of the freedom of religion, including its links with human dignity and the principle of a democratic state ruled by law (cf. in particular part III point 5 of the statement of reasons). Although I do no contest those assertions in principle (putting aside here the issue of constructing the hierarchy of constitutional rights and freedoms), I may not accept the view expressed in this context that “due to the guarantees set out in Articles 25 and 53 of the Constitution, public authorities should not assess the validity of religious convictions or ways in which they are expressed” (cf. part III, point 6.3 of the statement of reasons). I consider the view to be erroneous especially because it is followed, in the statement of reasons, by the proviso that the freedom of religion is not absolute in character and may be subject to restrictions.

I hold the view that the quoted assertion is defective both in its descriptive aspect and a prospective one – neither does it describe the actual legal situation, nor does it constitute proper guidance for the legislator for the future. It is obvious to me that every instance of legal interference in the freedom of religion must be preceded by evaluation; indeed, an analysis of the current situation and comparison thereof with a desirable situation constitute a necessary element of creating law. The said assessment requires weighing up the precepts of a given religion against norms, values and principles that are binding in Polish society (including moral principles, and not merely legal ones). In that sense, the said assessment also comprises an analysis of validity (the justified and rational character) of given religious beliefs (and consequently, also ways to manifest them). As a result, some religiously motivated actions or actions that are required by a given religion are restricted or prohibited by the state by means of legal measures. What may be given here as examples of such interference are rules concerning family law (in particular, marital law and relations between parents and children) and criminal law (e.g. in the context of the so-called ‘honour killings’ or brutal initiation customs).

 

4.3. The limitation clause from Article 53(5) of the Constitution versus the general principle of proportionality in Article 31(3) of the Constitution

I also disagree with the view of the Constitutional Tribunal that allegedly “in Article 53(5) of the Constitution, the constitution-maker has established a modified, special construct of potential restrictions on the freedom of religion” and thus, in the present case, there is no basis for assessing grounds for restricting the freedom of religion in the light of Article 31(3) of the Constitution (cf. part III, point 7.2 of the statement of reasons for the judgment).

The Constitution quite often provides for separate limitation clauses with regard to particular constitutional rights and freedoms – more extensive (cf. e.g. Article 22 and Article 61(3) of the Constitution), and sometimes narrower (cf. e.g. Article 53(5) of the Constitution) than in Article 31(3) of the Constitution. As far as I know, so far the Constitutional Tribunal (with the approval of the doctrine: cf. e.g. L. Garlicki, [in:] L. Garlicki (ed), Konstytucja Rzeczypospolitej Polskiej. Komentarz, Warszawa 2007, p. 17) has always deemed that the said clauses do not exclude general rules for restricting constitutional rights and freedoms expressed in Article 31(3) of the Constitution. For instance, when evaluating that issue in the context of the right of ownership, the Constitutional Tribunal stated: “treating Article 64(3) [of the Constitution: “The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right”] only as a special provision which excludes the general principle expressed in Article 31(3) of the Constitution – which would result in disregarding the criteria set out in that Article, when determining grounds for the legislator’s interference in the right of ownership – this would lead to excessively far-reaching consequences which would involve relativising legal protection reserved for the right of ownership in the Constitution” (the judgment of 12 January 1999, ref. no. P 2/98, OTK ZU No. 1/1999, item 2). The significance of Article 31(3) of the Constitution was similarly rendered in the light of the right to informational self-determination: “a norm expressed in Article 51(2) of the Constitution [“Public authorities shall not acquire, collect nor make accessible information on citizens other than that which is necessary in a democratic state ruled by law”] is not entirely autonomous in character. Although, in the said provision, the constitution-maker has explicitly indicated that there are limits as to a possibility of arbitrarily delineating, in ordinary legislation, the scope of information about citizens obtained by public authorities as well as has stressed the necessity of that restriction, evaluated according to the standards in place in a democratic state ruled by law, he has not specified the catalogue of constitutionally protected interests (values) which – in his opinion – may be weighed up in the process of assessing the admissibility of such a solution. Within that scope, it is necessary to make reference to the general provision of Article 31(3) of the Constitution (the judgment of 17 July 2008, ref. no. K 8/04, OTK ZU No. 5/A/2008, item 81).

In my opinion, there are no grounds for departing from the above line of jurisprudence in the context of Article 53(5) of the Constitution. In the present case, this would most likely have had little impact on the outcome of these review proceedings, but would have allowed one to properly determine relations between those provisions for the sake of future discussions (so far that issue has not been the subject of analyses by the Constitutional Tribunal).

In addition, it may be pointed out that remarks on the validity of including Article 31(3) of the Constitution among higher-level norms for the review (cf. part III, point 7.2 of the statement of reasons) do not lead to a conclusion (which is indispensable from the point of view of the addressees of the judgment of the Constitutional Tribunal). As one may guess, the remarks led to the discontinuation of the review proceedings within the scope of examining the conformity of the challenged provisions to Article 31(3) of the Constitution (as a provision that needs to be read in conjunction with Article 53(1), (2) and (5) of the Constitution) on the grounds that the issuing of a ruling was useless. However, in the statement of reasons for the judgment, one may find evidence that the Constitutional Tribunal did assess the challenged provisions in the light of requirements enumerated in Article 31(3) of the Constitution. This is confirmed by the statement that the protection of the natural environment as a requirement (which is absent in Article 53(5) of the Constitution) “in its basic meaning comprises only the protection of wild animals (that do not live in captivity) which constitute part of the natural environment”, and thus it may not be linked with the requirement of protecting the welfare of farmed animals (cf. part III, point 8.2.3 in fine of the statement of reasons for the judgment). Consequently, it may be assumed that, within the said scope, the Constitutional Tribunal has deemed that the requirement is inadequate for assessing the admissibility of the ban on ritual slaughter. Therefore, also within that ambit, the statement of reasons for the judgment does not match the operative part thereof.

 

4.4. Ritual slaughter versus morals (cf. part III, point 8.2.2 of the statement of reasons for the judgment)

I disagree with the views presented by the Constitutional Tribunal on a relation between the clause about morals (cf. Article 53(5) of the Constitution), the clause about public morals (cf. Article 31(3) of the Constitution), and the question of the admissibility of ritual slaughter. The core of the constitutional issue in the present case is to weigh up two conflicting values: the freedom of religion and (public) morals (cf. the stance presented by me above with regard to the merits of the case).

To my mind, it is controversial – to say the least – that the Constitutional Tribunal assumed that morals concern only relations between people, and that the term does not include the issue of people’s conduct towards animals (cf. part III, point 8.2.2 of the statement of reasons for the judgment, and in particular, the critique of the arguments put forward by the Public Prosecutor-General). Morals – according to the simplest and most common definition – is the capacity to distinguish between good and evil. Such a category certainly comprises people’s conduct towards farmed animals at the time of ritual slaughter; it is indisputably more acceptable from the moral viewpoint to kill the animals in a way that is least cruel, as inducing avoidable suffering to animals is morally reprehensible. Concern for animal welfare (excluded by the Tribunal from the scope of the discussion on morals – cf. part III, point 8.2.3 of the statement of reasons for the judgment) is, in my view, definitely a moral obligation.

I am also not persuaded by the argument that: “there should be no support for the assertion that, in Polish society, an absolute ban on ritual slaughter is necessary for the protection of morals defined in a broad sense. One should rather assume that it is consistent with moral norms shared by a vast majority of Polish society that the freedom of religion (belief) ought to be respected within the broadest possible scope [and, implicitly, that ritual slaughter should be permitted]” (cf. part III, point 8.2.2 of the statement of reasons for the judgment). I also disagree with the following statement: “as long as in Polish society it is universally acceptable to subject farmed animals to slaughter for the purpose of obtaining food for human consumption, a total ban on only one slaughter method (the one prescribed by religious rites) – which is subject to protection under the freedom of religion, and with regard to which scientific research produces no conclusive results that, in every case, this method is more painful than others – is not necessary for the protection of morals” (cf. part III, point 8.2.2 of the statement of reasons for the judgment).

The Constitutional Tribunal provided no evidence in support of the above findings, to confirm the said hierarchy of values (similarly, as regards the degree of cruelty of different slaughter methods – cf. above). By contrast, the results of opinion polls do not confirm the thesis that – according to Poles – ritual slaughter of farmed animals is universally accepted, and that it is accepted in the context of the religious needs of Jewish and Muslim communities. In the light of the results, as many as 65% of the respondents were against the admissibility of ritual slaughter in Poland, and only every fifth respondent was in favour of legalising it, mentioning economic, and not religious, considerations (the said reasons were indicated, respectively, by 32% and 26% of the advocates of ritual slaughter, and only 6% of them considered ritual slaughter to be relatively less cruel for animals than conventional slaughter – cf. the Public Opinion Research Centre (CBOS), “Opinie na temat dopuszczalności tzw. uboju rytualnego” – a press release in Polish on research ref. no. BS/70/2013, Warszawa 2013, CBOS <http://www.cbos.pl/SPISKOM.POL/2013/K_070_13.PDF>, pp. 2-4). Proposals to lift the current ban were also opposed on moral grounds by scientists whose field of research included the protection of animals (cf. an open letter of 15 December 2012 from over 120 scientists to the Prime Minister Donald Tusk, <http://wyborcza.pl/1,76842,13030012,120_naukowcow_do_premiera_Tuska__uboj_rytualny_to.htm>). The wrong determination of facts by the Constitutional Tribunal within an analysed scope is even more surprising, as the opinion polls on the perception of ritual slaughter by society was discussed extensively in the submission of 3 October 2014 by the Polish Ethics Society (pp. 5-6), which has been served on the judges adjudicating on the present case.

I also object to the Tribunal’s comment – among arguments for the admissibility of ritual slaughter on moral grounds – that the killing of animals (regardless of the method used) may always in practice be carried out in a “defective” way or is “inevitably” linked with “suffering, pain and distress”, as well as that conventional slaughter may be carried out in an inappropriate way (cf. part III, point 8.2.2 of the statement of reasons for the judgment as well as the said letter of Rabbi M. Schudrich). To a large extent, this weakens the call for humane treatment of animals, expressed in the statement of reasons for the judgment, as this suggests that, due to the inevitable fate of farmed animals, kept by people for meat and skin or fur, the details of slaughtering them are of little significance.

 

4.5. Ritual slaughter versus national security and public order as well as the protection of the rights of other persons (cf. part III, point 8.3 of the statement of reasons for the judgment)

The Constitutional Tribunal deemed that it was indisputable that the ratio legis of the ban on ritual slaughter solely comprised concern for animal welfare, and that it had nothing to do with (“is not [at all] linked with”) the need to safeguard national security, preserve public order, and protect the rights of other people (part III, point 8.2. in fine of the statement of reasons).

I strongly disagree with the above statement, considering, in particular, the broad scope of the operative part of the judgment which permits ritual slaughter on a mass scale as well as for purely economic reasons (and not merely to provide an appropriate quality of meat to the followers of Orthodox Judaism in Poland). In my view, there is no doubt that slaughter without stunning demoralises slaughterhouse workers, supervisors and breeders, desensitising them in their handling of animals, as they are fully aware of the fact that the purpose of the slaughter is not to respect an important religious minority carrying out its activity legally in Poland, but to generate income. The mass scale of slaughter also makes it impossible (as pointed out by the Public Prosecutor-General) to adhere to quite complex requirements of shechita (i.e. ideal sharpness of knives), thus producing pseudo-kosher meat (with appropriate certificates attached, but not meeting the standards of ritual slaughter).

The issue whether in Poland ritual slaughter is universally used or whether it is exceptional in character is also of relevance to other citizens. Such slaughter also entails indirect involvement of state institutions (supported inter alia from taxes), such as the Veterinary Inspection. In practice, every citizen at least to some extent pays for such treatment of animals, which may be against his/her conscience. The said circumstance is – as one may guess – one of the basic reasons for the negative attitude of a majority of society towards legalising ritual slaughter (cf. the aforementioned results of opinion polls).

4.6. Ritual slaughter versus public health (cf. part III, point 8.2.1 of the statement of reasons for the judgment)

According to the Constitutional Tribunal, “the lack of risks to the safety and hygiene of food and the health of consumers is confirmed by the previous practice of ritual slaughter in the light of which no such risks were identified”, and “the threats to safe and hygienic conditions for obtaining food, indicated by the Public Prosecutor-General, in the context of ritual slaughter have been based on an undocumented conviction that the practice of ritual slaughter is defective. However, the Public Prosecutor-General does not mention that also conventional slaughter carried out in breach of various legal provisions, even though it involves stunning animals, poses threats to safe and hygienic conditions for obtaining food” (part III, point 8.2.1 of the statement of reasons for the judgment).

In my opinion, the issue of the impact of shechita on public health may not be disregarded, even if reservations in that respect may not suffice for maintaining the ban on ritual slaughter. Indeed, experts prove that such a method of slaughtering animals is intrinsically linked with the risk of transmitting pathogens from skin onto meat (due to the obligation to use one knife for making an incision – cf. e.g. the EFSA Opinion, p. 19). What may also pose a problem is a number of negative effects of subjecting animals to slaughter in an inverted position (choking on blood and the content of their stomachs; cf. the above). Another issue on the verge of public health and morals is also the fact that some of the meat obtained in the course of kosher slaughter reaches the general market without any proper labelling. This is also a scope within which I would expect greater activity on the part of state authorities (including the legislator).

 

4.7. Ritual slaughter versus obligations arising from EU law (cf. part III point 8.3 of the statement of reasons for the judgment)

The Constitutional Tribunal also mentioned another argument for making the current provisions less stringent; in the opinion of a majority of the judges adjudicating in the present case, it follows from EU law that ritual slaughter should be admissible, rather than banned, which is confirmed by a prohibition against the introduction of measures restricting the import of kosher meat in EU Member States (cf. Article 26(4) of the Council Regulation (EC) No. 1099/2009 as well as part III, point 8.3, of the statement of reasons for the judgment).

In my opinion, the above statement is imprecise in the sense that it distorts the meaning of the provisions of EU law, by reversing a relation between what is a rule and what constitutes an exception therein. The rule in EU law is to kill animals in the most humane way possible, and ritual slaughter may constitute an exception to the rule (should EU Member States opt for this), which is subject to a restrictive interpretation. This is confirmed by the unambiguous wording of the Council Regulation (EC) No. 1099/2009, which indicates that “Business operators or any person involved in the killing of animals should take the necessary measures to avoid pain and minimise the distress and suffering of animals during the slaughtering or killing process” and that “animal welfare is a Community value” (cf. Recitals 2 and 4 of the Council Regulation).

Irrespective of the above, it should be emphasised that the subject of the review proceedings before the Constitutional Tribunal was not the compatibility between the challenged provisions and EU law, but the assessment thereof in respect of their conformity to certain provisions of the Constitution and the Convention that were enumerated in the application. Obviously, this does not mean that the European context should have been overlooked altogether, but merely that, in the present case, arguments arising from EU law may not, for formal reasons (the principle that the Constitutional Tribunal is bound by the limits of an application submitted thereto – cf. Article 66 of the Constitutional Tribunal Act), play a decisive role. Yet, the statement of reasons presents specific evaluation of the conformity of the Polish provisions to the Council Regulation (EC) No. 1099/2009 (cf. part III, point 1.3 in fine). This in particular pertains to Article 34(3) of the Animal Protection Act with respect to which the review proceedings were discontinued due to the lack of justification for the allegation (cf. part III, point 1.3 of the statement of reasons). At the same time, the Constitutional Tribunal completely ignored another vital issue, touched upon in literature (cf. in particular, E. Łętowska et al., “Prawo UE o uboju zwierząt i jego polska implementacja: kolizje interesów i ich rozwiązywanie, cz. I i II”, Europejski Przegląd Sądowy Issues Nos. 11 and 12/2013) and raised in the present case by the Public Prosecutor-General, namely that there doubts as to whether Poland may withdraw from notifying the European Commission on 27 December 2012 that as of 1 January 2013 in Poland there will be a total ban on ritual slaughter, and whether suggested high standard for the protection of animal rights (the total ban on ritual slaughter) is binding for the future. The mere fact of notification is mentioned in the statement of reasons for the judgment (cf. part III point 4.2 of the statement of reasons), but this is done without any analysis of legal effects for the Polish legal system. In the context of far-reaching comments on Article 34(3) of the Animal Protection Act, I consider this to be illogical.

 

 

4.8. Discontinuation of review proceedings within the scope of examining the challenged provisions in the light of Article 35(1) in conjunction with Article 31(3) of the Constitution (part III points 10 and 8.2.2 of the statement of reasons for the judgment)

I am ready to share the view of the Constitutional Tribunal that, in the present case, it was redundant to evaluate the ban on ritual slaughter in the context of the rights of ethnic minorities (cf. Article 35(1) in conjunction with Article 31(3) of the Constitution).

The discontinuation of the review proceedings within that scope should however been consistent. Therefore, in the light of arguments presented in part III point 8.2.2 of the statement of reasons, the Constitutional Tribunal clearly took account of that aspect of the matter. Thus, the indicated provisions of the Constitution should have been included in the operative part of the judgment at least as ones read in conjuction with others. At present, the wording of the operative part of the judgment is inconsistent within that scope with the statement of reasons.

 

For the above reasons, I have considered it necessary to submit this dissenting opinion.

Dissenting Opinion

of Judge Teresa Liszcz

to the judgment of the Constitutional Tribunal

of 10 December 2014, ref. no. K 52/13

 

On the basis of Article 68(3) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws – Dz. U. No. 102, item 643, as amended), I submit my dissenting opinion to the Tribunal’s judgment of 10 December 2014, ref. no. K 52/13.

 

STATEMENT OF REASONS

 

1. In the said judgment, the Tribunal deems that Article 34(1) of the Animal Protection Act of 21 August 1997 (Journal of Laws – Dz. U. of 2013, item 856; hereinafter: the Animal Protection Act) – insofar as it does not permit subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites, i.e. carrying out the so-called ritual slaughter – is inconsistent with the principle of religious freedom, expressed in Article 53(1), (2) and (5) of the Constitution as well as in Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws – Dz. U. of 1993 No. 61, item 284, as amended; hereinafter: the Convention). In other words, the said judgment declares the ban on slaughter prescribed by religious rites to be inconsistent with the Constitution, without mentioning what purpose such slaughter is to serve in a specific situation.

In my view, such wording of the operative part of the judgment entails that the Constitutional Tribunal’s ruling exceeds the scope of the applicant’s request, thus infringing the principle that the Tribunal may adjudicate only within the limits of an application and the principle that religious organisations enjoy limited locus standi (Article 191(1)(5) and Article 191(2) of the Constitution), which are both binding in review proceedings before the Constitutional Tribunal. The formulation of the petitum of the application may suggest that the applicant intended to generally challenge the provisions banning the slaughter of farmed animals “prescribed by religious rites of religious organisations whose legal situation is regulated”, i.e. which are registered in the Republic of Poland. However, what follows from the justification of the allegation is that the applicant argued only for the admissibility of ritual slaughter prescribed by Judaism, for the purpose of meeting the needs of the followers of Judaism residing in Poland. This was clearly stated by the lawyer of the applicant, in the presence of the Chief Rabbi of Poland and the head of the Association of Jewish Religious Communities (hereinafter: the said Association), thus interpreting the application in a narrow sense. He also explained that the reason why he did not mention, in the petitum of the application, the Jewish religious community was that a similar problem – to the one experienced by the followers of Judaism – affects Muslims in Poland, since both groups may only consume meat obtained from ritual slaughter prescribed by respective religions.

It needs to be stressed that the said Association – as an entity with limited locus standi, in accordance with Article 191(2) of the Constitution – was able to file an application for the examination of the constitutionality of the Animal Protection Act insofar as the provisions thereof concern matters within the ambit of the Association’s activity, set out primarily in the Act of 20 February 1997 on Relations Between the State and Jewish Religious Communities in the Republic of Poland (Journal of Laws – Dz. U. No41, item 251, as amended). Pursuant to Article 9 of the said Act, the tasks of Jewish communities that are members of the said Association, and which the Association represents in the present case as the applicant, comprise: “organising and carrying out public practice as well as providing religious services” (para 1); and “in order to exercise the right to observe religious rites and perform ritual activities related to religious worship” – the communities shall take care of “the provision of kosher food, eateries, ritual baths as well as ritual slaughter” (para 2). The ambit of the activity of Jewish communities and their Association certainly does not include commercial activity which consists in obtaining kosher meat in the amount that exceeds the needs of the followers of Judaism who are members of the Association. Therefore, the application of the Association may not concern the said activity in isolation from the purpose of meeting the religious needs of the followers of Judaism in Poland. The Constitutional Tribunal’s ruling on the unconstitutionality of the ban on ritual slaughter – insofar as the said slaughter is carried out for other reasons than to meet the aforementioned religious needs – goes beyond the scope of the applicant’s locus standi in review proceedings before the Constitutional Tribunal; the scope of the locus standi of a given applicant is usually very strictly adhered to by the Tribunal (see, in particular, the decisions of 24 June and 18 December 2014 in the case Tw 2/14, unpublished, as well as the jurisprudence cited therein).

At the same time, I wish to emphasise that I do approve of the fact that the Constitutional Tribunal, in the operative part of the judgment, not only referred to the ban on ritual slaughter carried out as prescribed by Judaism, but also included the ban on such slaughter prescribed by other religions, although this also implies going beyond the scope of special locus standi of the applicant. In this case, there indeed exists a crucial reason for such a departure – namely, preventing the occurrence of the so-called secondary unconstitutionality in the form of unequal treatment of different religious organisations.

However, what is inappropriate and dangerous is that the judgment of the Constitutional Tribunal refers to all religious “rites” (rituals), and not only – as indicated in the application – to religious rites of religious organisations whose legal situation is regulated (i.e. which are registered in Poland). The formulation of a ruling in which the scope of its operative part is not limited to religious organisations with a regulated legal situation or which in no way specifies the species of animals which may be subjected to ritual slaughter may lead to a situation where any unregistered sect which claims that “the core of its religion” involves the “ritual” killing of animals, not necessarily farmed ones, but, for instance, dogs or cats, will be able to do it legally.

 

2. As regards the substantive aspect of the judgment, it needs to be pointed out that the applicant Association has based its allegations on the conviction that “ritual slaughter of animals as one of the elements of Judaic religious practice is subject to protection as a form of manifesting religion, in accordance with Article 53(2) of the Constitution” (p. 10 of the application). The purpose is to obtain the so-called kosher meat, which is the only meat that may be consumed by the followers of Judaism. The said type of slaughter, referred to as shechita, involves making an incision on a conscious animal’s neck (i.e. an animal that has not been stunned before that action) so as to cut the animal’s trachea, carotid artery and oesophagus, without cutting its spinal cord. As regards this slaughter method, the loss of consciousness and the death of the animal occur after a certain amount of time, as a result of bleeding to death. In order to make an incision on the neck of an animal, without previously stunning it, the animal must be turned upside down, either by using a suspension mechanism or a metal restraining pen that may be rotated, which causes the animal immense stress. The animal does not vocalise its suffering, as – due to the cutting of its trachea – it is unable to make any sound.

According to the Chief Rabbi of Poland, Mr Michael Schudrich, “shechita was introduced thousands of years ago so as to comply with the divine prohibition against tza'ar ba'alei chayim [cruelty towards animals – added by T.L.]. Such is the explanation for shechita (and not – as some sources assert – the need to make animals bleed to death)” (the letter of 18 July 2014, p. 6). He also claims that even today shechita, when properly carried out, is the least painful and the most humane method of killing vertebrate animals, as this is done by a professional slaughterer (shochet) who is a religious person, and who uses a knife of an appropriate length and maximum sharpness. In my opinion, shechita was probably the most humane way of killing animals to obtain meat in the biblical times (when there were no possibilities to stun animals, and when contemporary methods of animal slaughter were unknown); however, it is not the most humane method in modern times.

At the same time, there is no doubt that any animal slaughter, including the one where stunning techniques are used, involves unimaginable physical and mental suffering of animals. The elimination of that suffering would only be possible by refraining from eating meat, which, however, in modern times is not realistic. And so the more I would like to express great respect for all those who – due to the suffering of animals – refrain from eating meat. I am sure that the number of vegetarians would multiply if we actually witnessed the transport of animals to a slaughterhouse and the killing of them, regardless of slaughter methods used.

Nevertheless, the knowledge that I have acquired about the two methods of slaughter – the one with prior stunning and the one with no stunning – has led me to believe that, in the case of ritual slaughter, pre-death suffering and extreme stress last longer. Additionally, the intensity of that suffering stems from the very nature of that method and may not be eliminated, but merely limited, even if the slaughter is properly carried out (see the opinion of 23 October 2014 issued by the Polish Ethics Society and the literature cited therein, as well as the statement of 20 March 2013 issued by the National Council of Medical Practitioners and Veterinarians with regard to a parliamentary bill amending the Animal Protection Act). For this reason, the Council Regulation (EC) No. 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ L 303 of 18.11.2009, p. 1) introduced, in principle, the slaughter of vertebrate animals with prior stunning, and as one of methods permissible by law, but only in exceptional circumstances – killing without stunning.

Accepting – although, in my case, not without reservations – the applicant’s view that ritual slaughter is a form of manifesting religion, or rather the Judaic tradition (as what is meant here is not a sacrifice for God or a traditional meal consumed during religious festivities, but regular consumption of meat), one should also agree with the allegation that a total ban on ritual slaughter constitutes a restriction of the freedom of religion in its external aspect, referred to in Article 53(2) and (5) of the Constitution. Undoubtedly (here I definitely agree with the statement of reasons for the judgment of the Constitutional Tribunal), the freedom of conscience and religion is one of the most fundamental personal freedoms of the individual, and it is closely related to his/her inherent dignity (Article 30 of the Constitution). However, even that fundamental freedom is subject to restrictions in its external aspect. I cannot accept the view expressed in the statement of reasons for the judgment, and in the final remarks made by the President of the Constitutional Tribunal at the end of the Tribunal’s sitting in the present case, that the state has no right to interfere in any conduct that is religious in character. Such absolutisation of the freedom of religion could lead to tolerating, for instance, the circumcision of little girls in Poland. The possibility of restricting religious freedom in its external aspect is explicitly mentioned in the Constitution. Pursuant to Article 53(5) of the Constitution, the freedom to publicly express religion may be limited only by statute and only where this is necessary for the protection of national security, public order, health, morals or the freedoms and rights of others.

Among the constitutional values that are mentioned in Article 53(5) of the Constitution as grounds for restricting the freedom to manifest religion, in my opinion – when examining the constitutionality of a ban on ritual slaughter, which is a form of manifesting religion – one should take account of morals as well as the rights and freedoms of other persons. A large part of Polish society considers ritual slaughter to be the cruellest, and thus contrary to the moral requirement of not causing animals any avoidable suffering, which is inter alia confirmed by thousands of objections against permitting such slaughter, which have been sent to the Constitutional Tribunal. The morals of society are shaped by various factors, including, no doubt, law and religion. The Polish Constitution does not contain a norm that would explicitly express respect for all living creatures or the protection of animals against suffering, as this is done in constitutions of some other European states; still, Article 1 of the Animal Protection Act stipulates that animals are not objects, and that people should show them respect and care, which certainly implies the obligation of protection against avoidable or excessive suffering. The circumstance that ritual slaughter is a precept of Judaism does not contradict the fact that it may be regarded as wrongdoing in a community whose morals have been primarily shaped by Christianity, despite common origins of the two religions.

In my view, it is necessary to restrict the practice of ritual slaughter in order to protect the rights of other persons, including persons involved in the process of the said slaughter. I perceive an infringement of rights and freedoms of other persons in the fact that persons who are sympathetic towards animals have the right to freedom from stress and mental suffering which are caused by the awareness that animals are subjected to practice that the said persons consider to be particularly cruel.

When evaluating the ban on ritual slaughter of animals, the Constitutional Tribunal should have weighed up – in my view – the following two constitutional values: on the one hand, the freedom to manifest religion in this way by the followers of Judaism (and Islam); and, on the other hand, the necessity to protect public morals as well as the rights and freedoms of persons who oppose the practice of ritual slaughter on moral grounds. Although I sympathise with the latter group, I need – as a judge of the Constitutional Tribunal – to recognise the precedence of the freedom to manifest religion, as a fundamental personal freedom of the individual, over the need to protect public morals as well as the rights and freedoms of other persons. Therefore, I would agree to conclude that the absolute ban on ritual slaughter, which prevents the followers of Judaism (Islam) – who permanently or temporarily reside in Poland – from obtaining kosher (in Islam – halal) meat acquired here this way, is inconsistent with Article 53(1), (2) and (5) of the Constitution.

However, I entirely disagree with the judgment of the Constitutional Tribunal, which states that the ban on ritual slaughter is unconstitutional, regardless of a purpose for obtaining meat in that way i.e. even if the meat from such slaughter is not intended to meet the needs of members of religious organisations registered in Poland who reside here. Consequently, the Constitutional Tribunal has made an exception – namely, according to the aforementioned Council Regulation (EC) No. 1099/2009, animal slaughter without prior stunning – become a parallel principle, thus permitting the practice of profit-oriented, industrial and quasi-ritual slaughter, and the export of meat obtained this way. At the same time, one should note that, as it was stated by the Chief Rabbi of Poland in his letter indicated above, “industrial slaughter may lead to irregularities, even if only by virtue of its scale”. The occurrence of numerous irregularities in that respect and the drastic nature of the said slaughter are confirmed by reports on the inspection of the actual process of carrying out ritual slaughter in slaughterhouses, including the opinion of the EFSA Panel on Animal Health and Welfare of 2004 (EFSA-9-2003-093) and the report on the interdisciplinary DIALREL project (2006-2010), prepared by groups of experts upon request from the European Commission. One may only hope that a parliamentary majority will not exploit the discretion provided by the Tribunal’s judgment within the scope of ritual slaughter, and will permit the said slaughter only within the scope that is indispensable for protecting the freedom of religion enjoyed by the members of religious organisations with a regulated legal situation who reside in Poland.

Article 53 of the Constitution, which expresses the freedom of religion, at most warrants a restriction of the ban on ritual slaughter, insofar as the carrying out of the slaughter is necessary to meet the needs of the followers of religions which prohibit the consumption of meat obtained in a different way. At the same time, I wish to stress that the Polish legislator is obliged to ensure legal conditions for the exercise of the freedom to manifest religion only to persons who remain under the jurisdiction of the Republic of Poland. For this reason, the judgment of the Constitutional Tribunal should be limited to the statement that the ban on ritual slaughter is inconsistent with Article 53(1) and (2) of the Constitution only insofar as the said ban makes it impossible to satisfy the religious needs of the members of religious organisations whose legal situation is regulated and which carry out their activity in Poland.

The said constitutional higher-level norm for the review is definitely not appropriate for evaluating ritual slaughter as economic activity, aimed at generating profit. Within that scope, it could be assessed in the light of the freedom of economic activity (Articles 20 and 22 of the Constitution), if an eligible applicant filed a relevant allegation.

 

3. It is obvious that my dissenting opinion with reference to the scope of unconstitutionality of the ban on ritual slaughter, mentioned in point 1 of the Tribunal’s judgment, directly translates into the scope of unconstitutionality of Article 35(1) and (4) of the Animal Protection Act, which provides for criminal liability for slaughtering an animal without prior stunning. In my view, the said provision should be regarded as inconsistent with Article 53(1), (2) and (5) of the Constitution, insofar as it concerns carrying out the ritual slaughter of animals without prior stunning for the purpose of obtaining kosher or halal meat to meet the needs of the followers of Judaism or Islam who live in Poland.

 

For the above reasons, I have found it necessary to submit this dissenting opinion.

 

 

 

 

 

Dissenting Opinion

of Judge Stanisław Rymar

to the judgment of the Constitutional Tribunal

of 10 December 2014, ref. no. K 52/13

 

1. On the basis of Article 68(3) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws – Dz. U. No. 102, item 643, as amended; hereinafter: the Constitutional Tribunal Act), I submit my dissenting opinion to the Tribunal’s judgment of 10 December 2014, ref. no. K 52/13.

I disagree with the operative part of the judgment as well as the statement of reasons. The review proceedings in the present case should have been discontinued on the basis of Article 39(1)(1) of the Constitutional Tribunal Act on the grounds that the issuing of a judgment was inadmissible.

 

2. Commencing by drawing a distinction between a freedom and a right, the Constitutional Tribunal stated that the freedom expressed in Article 53 of the Constitution, on the one hand, implies the protection of every religious practice and, on the other, places emphasis on a prohibition against interference by public authorities. Next the Constitutional Tribunal deemed that the said provision guarantees the right to slaughter animals in a slaughterhouse in accordance with particular methods of slaughter prescribed by religious rites (hereinafter: ritual slaughter). However, the Tribunal stated that Article 9(2) of the Act of 20 February 1997 on Relations Between the State and Jewish Religious Communities in the Republic of Poland (Journal of Laws – Dz. U. of 2014, item 1798; hereinafter: the Act on Jewish Religious Communities) gives no sufficient grounds for carrying out ritual slaughter, due to an absolute ban arising from the provisions challenged in the present case.

 

3. It is beyond doubt that Article 9(2) of the Act on Jewish Religious Communities reflects, inter alia, Article 53 of the Constitution. The lawgiver has assigned certain competence to Jewish religious communities to guarantee that the constitutional freedom will be effective, and thus this is covered by the principle of in dubio pro libertate. Since the constitutional norm guarantees the right to carry out ritual slaughter for religious reasons, then a logical consequence would be to arrive at the conclusion that the statutory competence within the scope of taking care of the provision of kosher food and ritual slaughter comprises both the right to carry out ritual slaughter by a Jewish religious community (directly by the community or by someone else commissioned by the community) as well as the right to obtain food from ritual slaughter. The constitutional and statutory provisions make it possible to reconstruct the addressee of the norm governing the said competence (i.e. a Jewish religious community), the content of the said norm (i.e. taking care of the provision of kosher food and ritual slaughter) as well as the limits for the implementation of the norm (i.e. performing rites and ritual activities). Article 9(2) of the Act on Jewish Religious Communities constitutes the source of a particular subjective right which safeguards the effectiveness of the constitutional freedom of the individual.

The fact that the Act on Jewish Religious Communities lacks detailed regulation as regards subsequent stages of indirect implementation of the said norm governing competence is not a strong enough argument, since such cases are regarded in the doctrine and jurisprudence as – quite frequently occurring – formal (structural) gaps which need to be filled up in accordance with rules for eliminating such gaps.

 

4. In the course of the review proceedings, it was stated that there is a contradiction between Article 9(2) of the Act on Jewish Religious Communities and the challenged provisions of the Animal Protection Act of 21 August 1997 (Journal of Laws – Dz. U. of 2013, item 856). In my view, the said contradiction is illusory in character. It could be eliminated by means of an appropriate interpretation in two ways. The first one amounts to an interpretation of Article 9(2) of the Act on Jewish Religious Communities that would be consistent with the Constitution, and consequently with an assertion about the admissibility – in the current legal system – of ritual slaughter to meet the needs of the members of a Jewish religious community. The other way of eliminating the contradiction is to state that the ban arising from the challenged provisions is absolute in character and makes it impossible for Jewish religious communities to exercise the competence provided for in Article 9(2) of the Act on Jewish Religious Communities.

 

5. The Constitutional Tribunal has opted for the second interpretation. That stance is unclear, since the statement of reasons emphasises the freedom safeguarded by Article 53 of the Constitution and the constitutional guarantee of the right to ritual slaughter. The stance presented by the Constitutional Tribunal raises even more doubts, as it contradicts the way of applying the criminal-law provisions challenged in the present case, in the context of religiously motivated breach of the ban on ritual slaughter. As it follows form the documents provided to the Constitutional Tribunal, law enforcement authorities assume that carrying out ritual slaughter does not exhaust the characteristics of a prohibited act, due to the constitutional guarantee of the freedom of religion. In the opinion of the Sejm, such an interpretation of the law is obvious.

 

6. In my view, the arguments presented below weigh in favour of adopting a different stance than the one presented by the Tribunal. Firstly, the Act on Jewish Religious Communities constitutes lex specialis with regard to the Animal Protection Act. Thus, the requirement of animal slaughter with prior stunning, which arises from the latter act, constitutes lex generalis with regard to Article 9(2) of the Act on Jewish Religious Communities. Secondly, there are no grounds for asserting that, by virtue of the principle of lex posterior derogat legi priori, the challenged provision repealed Article 9(2) of the Act on Jewish Religious Communities. Indeed, the said principle is not applicable when the previous law constituted lex specialis. Thirdly, the fact that Article 9(2) of the Act on Jewish Religious Communities has a strong constitutional basis in Article 25(5) and Article 53(1) of the Constitution determines the necessity to effectively interpret the norm governing competence to ‘take care of ritual slaughter’. Fourthly, ritual slaughter that is motivated by religious considerations and carried out to implement Article 9(2) of the Act on Jewish Religious Communities is a form of exercising a subjective right, and hence it may not constitute a prohibited act within the meaning of Article 42(1) of the Constitution. The scope of regulation of the challenged provisions does not comprise carrying out ritual slaughter to meet the “internal” needs of a Jewish religious community.

The above interpretation was approved by the representatives of the doctrines of constitutional and religious law. Article 9(2) of the Act on Jewish Religious Communities and the above arguments were also known to the lawgiver who amended the Animal Protection Act. Nevertheless, the lawgiver did not eliminate, from the special statute, the right to ‘take care of ritual slaughter’; nor did he undertake any attempts to introduce changes into the Act on Jewish Religious Communities.

 

7. In my opinion, the Constitutional Tribunal departed from the principle of judicial caution, the principle of in dubio pro libertate, the principle of interpreting statutes in a way that is consistent with the Constitution, as well as the principle of the presumption of constitutionality of normative acts, in order to determine the case which – with consistent adherence to the assumptions adopted by the full bench of the Tribunal adjudicating therein – should not at all constitute an issue of hierarchical review of norms, for it amounts to interpreting the provisions of the Animal Protection Act and the Act on Jewish Religious Communities in conformity to the Constitution. The constitutional status of the Constitutional Tribunal, as a guardian of the Constitution, contradicts adopting a defective interpretation or practice of executive authorities or a defective interpretation assumed by an applicant in the course of the constitutional review of norms.

 

For the above reasons, I have submitted this dissenting opinion.

 

Dissenting Opinion

of Judge Piotr Tuleja

to the judgment of the Constitutional Tribunal

of 10 December 2014, ref. no. K 52/13

 

On the basis of Article 68(3) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws ‑ Dz. U. No. 102, item 643, as amended; hereinafter: the Constitutional Tribunal Act), I submit my dissenting opinion to point 1 of the Tribunal’s judgment of 10 December 2014, ref. no. K 52/13.

 

In my view, the unconstitutionality of the statutory ban on slaughter without prior stunning (which arises from Article 34(1) and (3) of the Animal Protection Act of 21 August 1997; Journal of Laws – Dz. U. of 2013, item 856) pertains only to situations where the said ban refers to carrying out ritual slaughter to satisfy the needs of religious communities. The following wording included in the Tribunal’s judgment is too broad: “insofar as it does not permit subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites – is inconsistent”. Such wording is justified neither by the request formulated in the application, nor by rules governing review proceedings on the basis of which the Tribunal conducts the hierarchical review of norms, nor by the higher-level norms for the review in the present case, and in particular Article 53(2) and (5) of the Constitution.

The applicant in an unambiguous way formulated the allegation about the non-conformity of the challenged provisions to the Constitution. In the petitum of the application, the applicant specified the scope of the allegation as follows: “insofar as they do not permit subjecting animals to particular methods of slaughter, prescribed by religious rites of religious organisations with a regulated legal situation, and provide for criminal liability of persons who carry out such slaughter”. The application was justified inter alia as follows: “In the applicant’s view, when determining rules for animal slaughter, the legislator introduced regulations which – in breach of the provisions of Article 53(1), (2) and (5) in conjunction with Article 31(3) of the Constitution of the Republic of Poland – limit the freedom to practice religion in the case of the followers of Judaism. (…) there are no grounds for different (i.e. unequal), and thus less advantageous, treatment of the followers of Judaism and the members of Jewish communities whose beliefs and tradition require the consumption of kosher meat, in comparison with the followers of those religions and the representatives of those ethnic minorities who are not obliged to obtain food in this way”. The applicant pointed out that its request formulated in such a way was justified by the wording of Article 9(2) of the Act of 20 February 1997 on Relations Between the State and Jewish Religious Communities in the Republic of Poland (Journal of Laws ‑ Dz. U. No. 41, item 251, as amended). Any possible doubts in that respect were dispelled at the hearing, when the representative of the applicant and the attorney of the applicant – while answering the judges’ questions – clearly stated that they were striving for the lifting of the ban on slaughter without prior stunning within the scope and in the way that guarantee conducting the said slaughter to satisfy the needs of the members of the religious community.

The request formulated in this way should constitute the basis of review carried out by the Constitutional Tribunal. However, the Tribunal deemed that the basic constitutional issue in the present case amounted to the question whether, in the light of Article 52 of the Constitution, it is admissible to restrict the freedom of religion by introducing a ban on ritual slaughter. At the same time, the Tribunal inaptly – in my view – assumed that the submission of an application by an applicant that has limited locus standi affects neither the scope and way of conducting the review nor the scope of unconstitutionality determined by the Tribunal with regard to the challenged provision. In other words, the Tribunal assumed that the said review is to be conducted in the same way regardless of whether an application is filed by one of the applicants indicated in Article 191(1)(1) or one of the applicants mentioned in Article 191(1)(2)-Article 191(1)(5) of the Constitution.

In my opinion, the above assertion is groundless as regards the ambit of the allegation. In the context of applicants with limited locus standi (Article 191(1)(3)-Article 191(1)(5)), the scope of allegation is restricted by Article 191(2) of the Constitution. The said applicants may not lodge applications for the Tribunal to determine the unconstitutionality of provisions when this exceeds the delineated scope. Even if such a request is formulated and filed, the Tribunal may not examine such an application and should partly discontinue review proceedings. Differences in examining applications submitted by applicants with unlimited locus standi and those with limited locus standi are indicated in Article 66 of the Constitutional Tribunal Act. Being bound by the limits of a given application, as stated in that provision, also implies being bound by the limits set in Article 191(2) of the Constitution.

Taking account of the wording of the applicant’s allegations, the scope of its locus standi, as well as the normative content of the challenged provisions, the Tribunal should answer the following questions: Does a ban on ritual slaughter result in a restriction of the freedom of religion in the context of the followers of a religion who consider the slaughter and meat obtained from the slaughter to be necessary for religious reasons? Is such a restriction constitutionally admissible? However, the Tribunal provided an answer to a different question: Due to the fact that ritual slaughter constitutes an element of religious rites, should the method of carrying out such slaughter be regarded as admissible? (The Constitutional Tribunal: “the subject of assessment in these proceedings is the admissibility of a particular method for slaughtering farmed animals which is prescribed by certain religions”.) Thus, the Tribunal assessed the legality of the method alone, which is expressed in the operative part of the judgment. The Tribunal did not address the issue of the admissibility of the method. This difference is of significance, due to the scope of the potential lifting of the ban on slaughter without stunning, imposed by the legislator, as well as the way of implementing conflicting constitutional principles.

Even if one were to accept the possibility of examining only the method of slaughter, without the above-indicated procedural context, then the way of interpreting Article 53 of the Constitution would still not justify conclusions drawn by the Constitutional Tribunal. The interpretation of Article 53 of the Constitution leads the Tribunal to arrive at an inconsistent conclusion. The Tribunal stated that public authorities should not assess the validity of religious beliefs or ways in which they are put into practice. Yet, at the same time, the Tribunal held that the freedom of religion is not absolute in character. If the freedom of religion is not absolute in character, which directly arises from Article 53(5) of the Constitution, this entails that it is prima facie admissible to restrict the ways of manifesting religion.

I disagree with the Tribunal’s view that “it may not be deemed that the protection of morals – which have been shaped to a large extent by the Judaeo-Christian religion and tradition – could justify the challenged restriction of the freedom to manifest religion”. I also disagree with the Tribunal’s statement that the present case does not require further-reaching findings as regards the understanding the term ‘morals’ in the light of Article 53(5) of the Constitution. There is no such need, as – according to the Tribunal – Article 53(5) of the Constitution does not raise the question as to whether ritual slaughter is moral. In the Tribunal’s view, the protection of morals in Article 53(5) of the Constitution warrants interference provided that given conduct is deemed socially detrimental, whereas Polish society commonly accepts the freedom of religion. Finally, the Tribunal held that the value such as care for the welfare of farmed animals at the time of slaughter is not indicated in Article 53(5) of the Constitution. The above reasoning leads the Tribunal to a conclusion that the restriction formulated in the challenged provisions is not a necessary restriction. Such reasoning does not make it possible, in my opinion, to correctly interpret the content of the limitation clause in Article 53(5) of the Constitution, which concerns morals and their role in restricting the freedom of religion.

I base my reasoning in the present case on the following arguments: the scope ratione materiae of the freedom to manifest religion, enshrined in Article 53(2) of the Constitution, comprises the right to carry out ritual slaughter to obtain meat for consumption. Prima facie Polish law should guarantee the possibility of carrying out such slaughter and the possibility of consuming meat obtained in this way to persons who invoke the freedom of religion. These persons are members of religious organisations registered in Poland, in the case of which the religious doctrine provides for the said slaughter. The said guarantees do not concern persons who are not subject to Polish law; nor do they pertain to persons who are subject to Polish law, but who do not profess a religion where the religious doctrine would require carrying out ritual slaughter. In order to determine that those guarantees are definite in character, with regard to the followers of Judaism or Islam, the guarantees need to be confronted with limitation clauses set out in Article 53(5) of the Constitution.

By introducing the ban on slaughter without stunning, the legislator imposed a restriction on the freedom of religion in the case of the aforementioned persons. The present case involved determining whether the said ban may be justified by the limitation clause concerning the protection of morals as expressed in Article 53(5) of the Constitution. In my view, morals referred to in that provision are tantamount to public morals mentioned in Article 31(3) of the Constitution. Public morals should be construed as moral norms accepted in Polish society which pertain to human relations. Public morals should justify a restriction of rights, provided that the state shows how a given restriction is necessary for protecting the fundamental values of a polity. The requirement of the protection of public morals makes it possible to extend the scope of constitutional protection to encompass values which are not explicitly enumerated in Article 31(3) and Article 53(5) of the Constitution, but which are still universally cherished by society. The protection of animal rights is such a value. What arises from Article 53(5) of the Constitution is a norm which requires that the suffering of farmed animals at the time of killing be minimised, as well as a norm which prohibits killing animals in a way that causes them avoidable suffering.

Material gathered with relation to the present case and the course of the hearing showed that ritual slaughter is, in principle, a crueller form of killing animals than slaughter with stunning. This is aptly pointed out in the dissenting opinion of Judge Wojciech Hermeliński. Hence, the protection of public morals prima facie warrants the restriction of the freedom to manifest religion which involves carrying out ritual slaughter.

The questions that needed to be determined in the present case were not whether ritual slaughter is “moral”, and whether the state may morally evaluate religious beliefs and ways of professing religion. The point was to resolve a conflict between constitutional principles. The first principle stipulates that the state should not interfere with the freedom of religion, including the freedom to manifest religion. Since ritual slaughter falls within the scope ratione materiae of the said freedom, then the state should not introduce a ban on ritual slaughter with regard to religious communities whom this concerns. The second principle prohibits cruel treatment of animals, which implies a ban on ritual slaughter. The resolution of the conflict of the principles and the assigning of precedence to one of them should be done in the light of the principle of proportionality.

Considering the religious character of ritual slaughter and the significance it has to the followers of Judaism, it should be stated that the said slaughter is justified in terms of the principle of necessity and the principle of the least intrusive measure. Carrying out the said slaughter is necessary for manifesting religion, and one may indicate no other form of killing animals that would clash less with the moral convictions of persons who oppose the killing of animals without stunning on moral grounds. What is crucial for the indicated conflict of the said principles is the principle of proportionality in a strict sense.

The weighing up of both principles indicated above should be based on the following arguments: the Constitution protects the freedom of religion to a greater extent than animal rights. The said rights are not directly protected in any of the provisions of the Constitution. However, taking account of a change in attitudes towards animals in recent years, it should be deemed that not every form of people’s conduct towards animals, warranted by religious considerations, may be constitutionally admissible. In the present case, when assigning precedence to the freedom of religion, the following grounds should have been taken into account: the constitutional importance of the freedom of religion; the significance and meaning of ritual slaughter for religious organisations registered in Poland; the fact that the said slaughter is crueller than the killing of animals after stunning, but the difference – in comparison with some methods of killing after stunning – is not considerable; society’s general acceptance of the mass killing of farmed animals after stunning; acceptance of the killing of animals without stunning in other instances. In my opinion, the above arguments show that the norm which prohibits inflicting avoidable suffering on animals, and which constitutes a component of public morals, is not significant enough to justify the restriction of the freedom of religion within the scope indicated by the applicant.

Assuming the presumption of constitutionality of the challenged provisions as a starting point, the Tribunal should have deemed that the ban on killing animals without stunning is unconstitutional insofar as carrying out ritual slaughter is necessary to satisfy the needs of the members of certain religious communities. Similar wording was adopted in the judgment of the Austrian Constitutional Court of 17 December 1998, B 3028/97, VfSlg 15.394 (cited in the statement of reasons for the judgment of the Constitutional Tribunal). It allows one to appropriately apply the limitation clause and the principle specifying people’s conduct towards animals, which arises from the clause. As the Austrian example illustrates, the Austrian legislator had no problems with implementing the judgment of the Constitutional Court and introduced legal solutions that effectively limit the scope of carrying out ritual slaughter. Similar solutions should be introduced in Poland.

To sum up, I hold the view that the effect of the Tribunal’s judgment is that the ban on slaughter without stunning has been lifted within a scope that is too broad, and this is justified neither by the circumstances of the present case nor by the provisions of the Constitution.

 

 

 

 

 

Dissenting Opinion

of Judge Sławomira Wronkowska-Jaśkiewicz

to the judgment of the Constitutional Tribunal

of 10 December 2014, ref. no. K 52/13

 

On the basis of Article 68(3) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws ‑ Dz. U. No. 102, item 643, as amended), I submit my dissenting opinion with regard to point 1 of the Tribunal’s judgment of 10 December 2014, ref. no. K 52/13.

 

I agree with the statement included in the Tribunal’s judgment that particular methods of animal slaughter prescribed by religious rules observed by the followers of Judaism and Islam need to be categorised as religious practice – manifestation of the freedom of religion within the meaning of Article 53 of the Constitution.

I also share the Tribunal’s view that the constitutionally guaranteed freedom of religion, as well as practice and manifestation thereof – due to the particular significance of that freedom for the individual – may justify why religious (ritual) slaughter is exempt from the general ban on killing animals without prior stunning. Activities that aim at expressing and practising religion fall within the scope of constitutional protection, and the requirement set out in the Constitution for respecting religious practices sets out prima facie the scope of the legislator’s discretion when it comes to regulating matters concerning animal protection. In other words, I hold the view that animal slaughter justified by religious considerations (as religious practice) is constitutionally admissible. When drawing the said conclusion, one should make a proviso; namely, in my view, the conclusion is apt in the context of current ongoing changes, far as they are from being complete, as regards people’s conduct towards animals and the content of norms that determine our behaviour as well as in the light of knowledge we have about suffering caused to animals at the time of killing them for food.

My objection concerns the scope within which the Tribunal declared the non-conformity of the ban on religious (ritual) slaughter to Article 53(1), (2) and (5) of the Constitution, as well as to Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms. My objection is justified by the following reasons.

Firstly, the challenged Act introduced a ban on the slaughter of certain species of animals conducted without prior stunning, providing for only few exceptions. The exceptions did not include particular slaughter methods prescribed by religious rites.

In the petitum of the application as well as in the justification thereof, the applicant requested the Tribunal to determine whether the ban on particular methods of slaughter prescribed by religious rites of religious organisations whose legal situation is regulated is consistent with Article 53(1), (2) and (5) of the Constitution as well as with Article 9(1) and (2) of the Convention. Moreover, at the hearing, the applicant Association clearly explained that it meant the freedom to manifest religion in the form of religious (ritual) slaughter, exercised by the followers of the religion who live in the Republic of Poland.

By ruling that Article 34(1) of the Animal Protection Act – within the scope in which it prohibits subjecting animals to particular methods of slaughter in a slaughterhouse as prescribed by religious rites was inconsistent with the Constitution and the Convention, the Tribunal went beyond the scope of the application. As a result, the Tribunal overturned the presumption of constitutionality of the reviewed provision within the entire scope of the provision, which entails that as of the day of publishing the judgment in the Journal of Laws of the Republic of Poland, ritual (religious) slaughter has become possible in Poland within limits and on terms provided for in the Council Regulation (EC) No. 1099/2009.

As regards the allegation, the Tribunal should have declared the unconstitutionality of the challenged provisions within the scope requested by the applicant. This evaluation is not affected by the Tribunal’s view – which I also share – that an application submitted by applicants with special locus standi, when admitted for examination, is subject to an abstract review. It is this kind of review that permits assessing the constitutionality of the ban on ritual (religious) slaughter as a form of manifesting those religions that provide for such a form (Judaism, Islam). In substantive terms, such determination would be justified in the light of Article 35 of the Constitution, which guarantees that Polish citizens belonging to national or ethnic minorities have the freedom to maintain their customs and traditions, and have the right to establish institutions designed to protect religious identity, as well as the said determination would counteract the so-called spin-off unconstitutionality, which in the case under examination could be reflected by unequal treatment of the followers of Judaism and those of Islam.

Secondly, Article 34 of the Animal Protection Act prohibits the killing of animals without prior stunning, and thus it prohibits religious (ritual) slaughter. As deemed by the Tribunal, the said prohibition violates the constitutionally protected freedom to manifest religion, which may be subject to limitation, but only when premisses (requirements) indicated in Article 53(3) of the Constitution are fulfilled. In the case concluded with the judgment, the said requirements – in the Tribunal’s opinion – were not met; a strict ban on religious slaughter is not, as stated by the Tribunal, necessary for the protection of: state security, public order, the natural environment, health, the freedoms and rights of other persons, or – which is of significance in the case under discussion – public morals. Consequently, the Tribunal focused its attention on the constitutional freedom of religion, on the one hand, and the value such as animal welfare, on the other; the said value warrants the prohibition expressed in Article 34 of the said Act and is justified by the conviction that animals are sentient beings capable of feeling pain, and that people – being responsible for animals – should protect them from any avoidable distress or suffering. Hence, in the Tribunal’s view, we face a conflict of the following two values: the freedom of religion and animal welfare. The first one is protected constitutionally, whereas the protection of the other is statutory in character, as there is no constitutional obligation of such protection.

Thus, the Tribunal adjudicated that the freedom to manifest religion rules out a ban on religious (ritual) slaughter and that matters concerning animal protection have been assigned to the legislative branch of government. However, the Tribunal did not discuss the constitutional scope of the freedom to manifest religion; in other words, it did not elaborate on the constitutional term ‘freedom to manifest religion’.

I juxtapose the Tribunal’s reasoning with reasoning based on different assumptions.
           
One of the constitutional premisses that justify restricting the freedom to manifest religion by the ordinary legislator is the protection of morals. The fact that it is provided for in the Constitution entails that, according to the constitution-maker, the freedom to manifest religion is not absolute in character, and that it is admissible for the legislator to evaluate religious practices from the point of view their conformity with morals, although this needs to be done with great caution, due to the principle that the state is neutral on matters of worldview. One might also wonder whether such assessment could concern the very essence of a given religion, which would involve the legislator in disputes concerning theological matters.

The solution adopted in the Constitution also implies that not every religious practice which is a form of manifesting religion must be regarded by the lawgiver as consistent with moral standards.

Without getting into complex disputes over the meaning of the term ‘morals’, I assume that the constitution-maker construes ‘morals’ as a set of conduct norms (or at least convictions) that are commonly accepted in a given state community and prohibit actions perceived as wrongdoing and reinforce actions regarded as good.

If one was to pose the question whether in modern times – considering commonly accepted social norms and codes of conduct that have been established, or that are at least emerging – the realm of people’s conduct towards animals is a neutral realm which may be left outside the ambit of legal regulation by the legislator, the answer would be in the negative. It is not true that, acing in compliance with social expectations as regards the protection of animals, the lawgiver may regulate the said realm or leave it unregulated. On the contrary, the said realm requires the statutory interference for many reasons: economic ones; sanitary safety; the protection of the environment; as well as – which is most important in the context of the case under consideration – ethical considerations. The expectation, or even requirement, that animals are to be perceived as sentient beings, and consequently that they are to be treated in such a way so as not to cause them any pain or to minimise their suffering, is deeply embedded in many cultures and has been reflected in numerous philosophical currents and moral doctrines, as well as in many religions. Also, in recent decades, the issue of animal protection has become more significant in society; there is greater awareness in that respect, and irresponsible conduct towards animals is perceived as reprehensible behaviour, for which there is increasing disapproval. It is not a matter of the Tribunal to resolve complex disputes over moral norms. However, it seems that the subject of moral judgment today is not only one person’s conduct towards another, or other people, but also the person’s conduct towards other beings that are capable of experiencing pain. Despite ongoing disputes, there is no doubt that our conduct towards animals is a vital moral issue; in fact, it is so vital that we expect a reaction from the lawgiver. This is confirmed by numerous normative acts on animal protection issued by individual states, as well as relevant international-law acts and EU acts. All those acts share a common axiological basis and rely on knowledge as to which methods of killing animals for the purpose of obtaining meat for consumption are the least cruel. Indeed, the dispute about the permissibility of ritual (religious) slaughter is not about the issue whether, at the time of killing, animals should be spared suffering, as minimising the suffering is required by both Judaism and Islam. The requirement to minimise the suffering of animals at the time of slaughter is justified from the point of view of morals and is a legal requirement provided for in many binding acts. What constitutes the essence of the dispute is the very method of killing, i.e. the issue whether religious slaughter involves considerably greater suffering of animals than killing them after stunning. The requirement to kill animals after stunning them, which is common in currently binding regulations, is based on the knowledge that such a method minimises the suffering of animals as much as possible. In this context, permitting ritual (religious) slaughter carried out to meet the needs of a religious community must be perceived as an exception, and – which must be stressed once again – an exception motivated only by religious considerations.

What has been stated above proves that the modern-day lawgiver deals with a dynamic situation that changes quickly, and this – in my view – must affect the interpretation of the Constitution and enrich the value system underlying it, even if a given value is not explicitly expressed in its text.

In accordance with Article 53(5) of the Constitution, the freedom to publicly express religion may be limited. The word “may” used in that provision means – indisputably – that the lawgiver is authorised to set such limits by statute, but only when criteria mentioned in that provision are met. One of them, which is applicable in the present case, is the fact that there are binding moral norms (or at least moral convictions) in the state community for the protection of which it is necessary to impose a restriction on the freedom to publicly express religion. At the same time, it should be noted that regardless of the nature of norms that require people to act in certain ways towards animals (i.e. irrespective of whether the said norms are moral norms in character), an infringement of such norms may be regarded by those who observe them as wrongdoing, since the norms forbid wronging others.

As I have indicated earlier, the requirement of “the protection of morals” – which needs to be met if the authorisation granted in Article 53(5) of the Constitution is to be exercised – has been met.

In Article 34 of the Animal Protection Act, the legislator exercised the authorisation granted to him and introduced a ban on slaughtering vertebrate animals without prior stunning; the Tribunal considers the ban to be “total” and “absolute”. Thus, the legislator has completely restricted one of possible religious practices.

In the case examined by the Tribunal, it proved necessary to answer the questions whether the said ban was proportionate and whether the weighing up of two values – the freedom to observe religious rites juxtaposed with moral considerations – was properly done by the legislator. As stated above, the Tribunal, without applying the test of proportionality, assigned precedence to the freedom to manifest religion, providing for no exceptions in that respect.

Enshrined in Article 53 of the Constitution, the freedom of religion makes one raise questions about the objective of ritual (religious) slaughter and notice a difference – although, admittedly, not a very clear one – between animal slaughter as someone’s religious practice manifested in a certain way of obtaining food (meat) for consumption as required by the followers of a given religion and a specific way of killing animals, regardless of a direct purpose this serves.

Article 53 of the Constitution does not safeguard one of the methods of killing animals, but the freedom to manifest religion by a follower of that religion, not the freedom of a producer or an exporter of meat obtained in a certain way. The latter person is indeed merely a service provider or entrepreneur carrying out his/her economic activity, and hence does not enjoy protection provided for in Article 53 of the Constitution.

Taking account of the facts that the norm expressed in Article 34 of the Animal Protection Act was a norm presumed to be consistent with the Constitution, and that the applicant challenged the constitutionality thereof only in the narrow, aforementioned, scope and, moreover, that the freedom to manifest religion necessitates the lifting of the ban expressed in Article 34 of the Animal Protection Act, insofar as ritual slaughter only serves religious purposes, the Tribunal should have ruled that the said provision is inconsistent with the Constitution within a particular scope. This way, the Tribunal would have balanced out the freedom to observe religious rites and the protection of morals.

Furthermore, it ought to be noted that the freedom to manifest religion is always someone’s freedom – namely, the freedom of a follower of the religion. The Constitution ensures this freedom to everyone, which entails that it obliges public authorities to refrain from interference in the realm of religious practice, to prevent others from such interference and to undertake action which facilitates the practice of religion (e.g. by passing relevant legislation). The beneficiaries of those obligations imposed on public authorities are individuals and entities that are subject to the jurisdiction of the Republic of Poland, as they are guaranteed the freedom of religion by the Polish Constitution.

This argument also shows that, from the point of view of the higher-level norm for the review indicated by the applicant, the lifting of the ban on slaughter without prior stunning, imposed by the legislator, should be limited in scope.

Finally, it should be added that – in the light of the above – the limits of manifesting religion are blurry and, in practice, difficult to delineate. The task of the constitution-maker is to delineate them as precisely as it is possible in the context of the matter in question. A considerable difficulty in drafting such regulation may not, in the case under review, constitute an argument for the total lifting of the ban on ritual slaughter.

 

 

 

 

 

Dissenting Opinion

of Judge Stanisław Biernat

to the statement of reasons for the judgment of the Constitutional Tribunal

of 10 December 2014, ref. no. K 52/13

 

On the basis of Article 68(3), second sentence, of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws ‑ Dz. U. No. 102, item 643, as amended), I submit my dissenting opinion to the statement of reasons for the judgment in the present case.

 

1. In the judgment, the Tribunal has adjudicated that:

1. Article 34(1) of the Animal Protection Act of 21 August 1997 (Journal of Laws – Dz. U. of 2013 item 856) – insofar as it does not permit subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites – is inconsistent with Article 53(1), (2) and (5) of the Constitution of the Republic of Poland in conjunction with Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws – Dz. U. of 1993 No. 61, item 284, of 1995 No. 36, item 175, 176 and 177, of 1998 No. 147, item 962, of 2001 No. 23, item 266, of 2003 No. 42, item 364 as well as of 2010 No. 90, item 587).

2. Article 35(1) and Article 35(4) of the Act referred to in point 1 – insofar as they provide for criminal liability for subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites – are inconsistent with Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

2. I agree with the above ruling. However, I have reservations as to the line of reasoning and certain wording in the passages of the statement of reasons where the Tribunal assesses the conformity of the ban on animal slaughter carried out by particular methods prescribed by religious rites to Article 53(5) of the Constitution (see, in particular, part III, point 8.2 and 8.3 of the statement of reasons).

 

3. The Tribunal held that a restriction of the freedom to manifest religion, where the manifesting of the religion involves subjecting animals to particular methods of slaughter prescribed by religious rites, may not be analysed in the context of morals, the protection of which constitutes one of requirements mentioned in Article 53(5) of the Constitution. The Tribunal invoked the literature on the subject which indicates that the term ‘morals’ is imprecise and has various definitions. The Tribunal also pointed out that the protection of ‘morals’ refers to relations between people. People’s conduct towards animals may be analysed in the context of morals “in the near future”, according to the Tribunal. What follows from the above assertion is the consideration of the ban on subjecting animals to particular methods of slaughter prescribed by religious rites as a reflection of “concern for the welfare of farmed animals at the time of slaughter”. Thus, the Tribunal has drawn a clear distinction between care for animal welfare and the protection of morals. Moreover, it has stated that a value such as the said care is not indicated in Article 53(5) of the Constitution. Consequently, the value does not warrant a restriction of the freedom to manifest religion.

 

4. I cannot agree with such reasoning. To put it most succinctly: in my view, already at present, and not only in the future, morals are also reflected in people’s conduct towards animals. By contrast, in relations between people, conduct towards animals is also an essential element of evaluating individual or group behaviour. Inappropriate conduct towards animals is regarded as morally reprehensible. Therefore, the Constitutional Tribunal should have considered care for animal welfare at the time of slaughter as a component of the protection of morals, and should have analysed the ban on (as well as the permissibility of) subjecting animals to particular methods of slaughter prescribed by religious rites in the context of the protection of morals.

 

5. Despite my critical remarks on the structure of the normative analysis adopted by the Tribunal in the statement of reasons for the judgment, I agree with the ruling in the present case. This is so because the inaccurate assumption did not preclude the Tribunal from presenting convincing and comprehensive arguments. The Tribunal’s conclusion is that the absolute ban on animal slaughter by the aforementioned methods, which reflects the freedom to manifest religion, is not necessary for the protection of morals. I consider the outcome of weighing up the above-mentioned constitutional values to be the correct one.

There is no place here to reiterate or summarise conclusions drawn in the statement of reasons for the judgment. I will merely mention arguments that are, in my view, particularly significant. It needs to be emphasised that animal slaughter without prior stunning will be carried out in compliance with stringent rules set out in the Council Regulation (EC) No. 1099/2009. Juxtaposition of animal slaughter with prior stunning as humane with animal slaughter by particular methods prescribed by religious rites as particularly cruel has no reflection in reality. Indeed, all methods of killing farmed animals cause them pain, distress and suffering – this is even pointed out in the preamble to the said EU Regulation. In fact, the protection of animals would, on moral grounds, require a total ban on killing animals for the purpose of obtaining food. However, one does not need to elaborate as to why such an extreme proposal would be unrealistic for many reasons.

 

6. It is well-known that words shape reality. Used in the colloquial Polish, and also resorted to by the Tribunal, the Polish term ‘ubój rytualny’ (ritual slaughter) is obviously not neutral, but evokes negative, or even sinister, connotations in Polish society.

Furthermore, I find the following passage from the statement of reasons for the judgment to be unfortunate (see part III, point 8.2.2): “Taking account of the fact that Polish society assigns great importance to religion and the freedom to manifest it, the Tribunal deems that the applicant’s argument is convincing that the freedom of religion is not only guaranteed by the Constitution and the Convention, but it also constitutes one of basic moral values in Polish society. What reinforces the said view in law is the Preamble to the Constitution, which makes reference to values arising from the Judaeo-Christian tradition. Considering the above, there should be no support for the assertion that, in Polish society, an absolute ban on ritual slaughter is necessary for the protection of morals defined in a broad sense. One should rather assume that it is consistent with moral norms shared by a vast majority of Polish society that the freedom of religion (belief) ought to be respected within the broadest possible scope”.

The quoted excerpt, especially when taken out of context, might be read as a sweeping generalisation made by the Tribunal with regard to the scope and forms of the freedom to manifest religion. However, in my opinion, the above statement needs to be construed in the context of the view expressed in the said statement of reasons two sentences earlier – namely, that legal interference, for the purpose of the protection of morals, is justified “with regard to such activities and conduct which are universally perceived as detrimental to society”.

 

 

 

 

 

Dissenting Opinion

of Judge Mirosław Granat

to the judgment of the Constitutional Tribunal

of 10 December 2014, ref. no. K 52/13

 

On the basis of Article 68(3) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws – Dz. U. No. 102, item 643, as amended), I submit my dissenting opinion to the statement of reasons for the Tribunal’s judgment of 10 December 2014, ref. no. K 52/13.

 

The Constitutional Tribunal stated in point 1 of the operative part of the judgment that Article 34(1) of the Animal Protection Act of 21 August 1997 (Journal of Laws – Dz. U. of 2013 item 856; hereinafter: the Animal Protection Act), insofar as it does not permit subjecting animals (in a slaughterhouse) to particular methods of slaughter prescribed by religious rites, is inconsistent with Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended subsequently by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws – Dz. U. of 1993, No. 61, item 284, as amended; hereinafter: the Convention). Also, Article 35(1) and Article 35(4) of the said Act, insofar as they provide for criminal liability for subjecting animals (in a slaughterhouse) to particular methods of slaughter prescribed by religious rites, are inconsistent with Article 53(1), (2) and (5) of the Constitution in conjunction with Article 9 of the Convention (point 2 of the operative part of the judgment).

Even as a supporter of permitting the ritual slaughter of farmed animals to meet the needs of a religious community – after an analysis of the judgment – I cannot help but object to the theses put forward in the statement of reasons. Indeed, I assign great importance to arguments presented by the Tribunal in the context of constitutional values and freedoms.

 

I

 

When considering the freedom of conscience and religion (Article 53(1) and (2) of the Constitution), restrictions within the scope of the exercise of constitutional rights and freedoms (Article 31(3) of the Constitution), including the freedom to manifest religion (Article 53(5) of the Constitution), the Tribunal did not weigh up constitutional values related to the indicated principles of the Constitution. The fact that the Tribunal did not examine the hierarchy of conflicting values, by refraining from applying the test of proportionality in the context of the restriction imposed on the freedom of religion, in my view, arises from inapt premisses underlying the Tribunal’s reasoning.

Namely, the Tribunal assumed that it may not be unambiguously deemed that ritual slaughter carried out properly is in every case more painful for animals than properly administered methods of slaughter involving stunning, and also that the assessment of the practice of ritual slaughter may not be conducted in isolation from other methods of slaughter (see part III point 8.2.2). Since, in the opinion of the Tribunal, other methods of slaughter also cause animals to suffer, and it may not be determined which method of slaughter inflicts more suffering on animals and which one inflicts less, then it follows from such an assumption that the Tribunal puts ritual slaughter on a par with other methods of killing animals, as regards assessing them in the context of the protection of morals (referred to in Article 53(5) of the Constitution). As the Tribunal explicitly stated: “as long as in Polish society it is universally acceptable to subject farmed animals to slaughter for the purpose of obtaining food for human consumption, a total ban on only one slaughter method (the one prescribed by religious rites) – which is subject to protection under the freedom of religion, and with regard to which scientific research produces no conclusive results that, in every case, this method is more painful than others – is not necessary for the protection of morals” (part III, point 8.2.2). I wish to elaborate on that passage as it shows how the Constitutional Tribunal eliminated the argument for the protection of morals in the context of evaluating the necessity to restrict the freedom to manifest religion. The Constitutional Tribunal presented the stance that suffering inflicted on animals at the time of ritual slaughter is similar to pain caused by other methods of slaughter or that ritual slaughter may be less painful. Such an approach of the Constitutional Tribunal entails that ritual slaughter “adds nothing” to the question of morals. There is no problem of immorality – in the opinion of the Constitutional Tribunal – if ritual slaughter is carried out as prescribed by religious rites. As a result of deeming by the Tribunal that the necessity to protect morals, arising from Article 53(5) of the Constitution, is irrelevant in the case of the evaluation of the method of ritual slaughter (which is one of many methods for killing animals, and where each of them causes animals to suffer), the evaluation of ritual slaughter in the light of the protection of morals loses its significance. When juxtaposed with other methods of slaughter, a given method of killing is not crueller than others. For the Constitutional Tribunal, this becomes more of an issue of the individual’s freedom in general (in his/her efforts to obtain food), and does not constitute the issue of manifesting the freedom of religion. Thus, in the opinion of the Tribunal, such a restriction of the freedom to manifest religion should not be assigned great significance, since the methods of slaughtering animals, whether ritual ones or others, due to the fact that they cause animal suffering, are no different from the point of view of moral evaluation.

I disagree with the Tribunal’s reasoning.

Firstly, when assessing the method of ritual slaughter, one may not disregard the necessity to protect morals, as slaughter is linked with animal suffering (the killing of animals always undermines morals, and this is even more so when the killing inflicts suffering). One may not disregard the necessity to protect morals, even if the Constitutional Tribunal limits a relation between ritual slaughter and morals to the question whether an absolute ban on ritual slaughter constitutes an admissible restriction of the freedom to manifest religion, which requires the justification that the ban is “necessary for the protection of morals” (part III, point 8.2.2). In my view, even if the protection of morals is to be the only premiss that is considered, the Constitutional Tribunal must not overlook the fact that manifesting one’s religion is a social activity and it is linked with various social interactions. Therefore, Article 53(5) of the Constitution forces the Constitutional Tribunal to evaluate the act (action) of manifesting religion from the point of view of the “necessity to protect morals”. However, I wish to emphasise that the Tribunal does not review, and has no jurisdiction to review, the essence of the freedom of religion (Article 53(1) and (2) of the Constitution), which the constitution-maker has separated from the freedom to manifest religion (Article 53(5) of the Constitution). I am aware of the fact that it may be hard, or even risky, to rely on the premiss such as the protection of morals, arising from Article 53(5) of the Constitution. “The freedom of conscience and religion” (Article 53(1) and (2) of the Constitution) is not entirely separate from “the freedom to publicly express religion” (para 5). These are aspects of the same freedom. However, in a state ruled by law, the freedom of conscience and religion (Article 53(1) and (2)) is so significant that it is inadmissible for a constitutional court to examine the morality of religion, for this would entail that religion would be subject to moral evaluation, i.e. morals would determine the evaluation of religious conduct. The freedom of religion lies outside the jurisdiction of the constitutional court, unlike the aspects of manifesting religion. The key term is the word ‘manifesting’. ‘Manifesting’ implies, and produces, social effects. It may be subject to comparison with other constitutional values and does not imply the interference of morals in the freedom of religion.

By arguing that ritual slaughter changes nothing when it comes to evaluation in the light of the protection of morals, as provided for in Article 53(5) of the Constitution, the Tribunal eliminated one of the scale pans of the test of proportionality. One scale pan should constitute by evaluation whether the ban on ritual slaughter is “necessary for the protection of morals”. The other scale pan i.e. the freedom to manifest religion was linked by the Tribunal – as I have pointed out above – with the individual’s freedom as such. With such rendition of constitutional principles and values, the issue of limitations to the freedom to manifest religion loses its significance, since in principle – according to the Constitutional Tribunal – each slaughter method causes animal suffering and, in that sense, different methods may be approached in the same way (the killing of animals may be a rite, and a way to simply obtain food). As a consequence of such reasoning, the Tribunal eliminated the grounds for carrying out the test of proportionality.

Secondly, I disagree with the Tribunal’s stance on the meaning of the term ‘morals’ in Article 53(5) of the Constitution. As I have mentioned before, the Tribunal holds the view that: “the present case does not require any further analyses or discussions of the meaning of the term ‘morals’ in the context of ‘the protection of morals’ as one of the limitation clauses in Article 53(5) of the Constitution. Indeed, this would have no impact on the ultimate determination whether the challenged provisions are constitutional or not” (part III, point 8.2.2). The said provision of the Constitution, in the view of the Constitutional Tribunal, does not raise the question whether ritual slaughter is moral, but only whether a ban on such slaughter is necessary for the protection of morals. As stressed by the Tribunal, by refraining from establishing the above findings, the Tribunal still expressed its opinion on what content fell outside the scope of ‘morals’, construed in the light of the Constitution. Morals mentioned in Article 53(5) and Article 31(3) of the Constitution are construed by the Tribunal as a term that refers only to relations between people, excluding people’s conduct towards animals (part III, point 8.2.2). Morals pertain to relations between people – this is obvious, but, in my opinion, morals also refer to our conduct towards animals. Human morals set standards for conduct towards animals. I strongly disagree with the assertion that: “dynamic changes in social attitudes and legal approaches will create a basis in the near future for analysing people’s conduct towards animals in the light of the protection of morals” (part III, point 8.2.2). This statement would probably be true if it had been expressed several decades ago. I believe that people’s conduct towards animals is subject to evaluation in the light of morals, where “morals” constitute a ground for limiting the freedom mentioned in the indicated provisions of the Constitution.

Still, I do appreciate the passage from the Tribunal’s reasoning about people’s conduct towards animals, where the Tribunal states that the animal world constitutes an integral part of the world in which people live, from which they benefit and for which they are responsible. What arises from the dignity of the person – where the person is construed as the subject of rights and obligations – is an obligation to act responsibly towards animals (part III point 8.2.3). However, the Tribunal drew no conclusion from that statement as regards assigning “morals” with a meaning in the context of Article 53(5) of the Constitution.

Thirdly, in my view, the Tribunal’s rejection of the grounds for the test of proportionality in the context of competing constitutional values is linked – in my opinion – with the formal treatment in the Tribunal’s reasoning of the significance of the limitation clauses in Article 31(3) and Article 53(5) of the Constitution for the discussion of animal slaughter. The Tribunal has not justified the citation of the limitation clause in the present case in the operative part of the judgment, which is Article 53(5) of the Constitution. The reasoning of the Constitutional Tribunal raises a number of doubts in that respect. It is assumed that Article 53(5) of the Constitution sets more stringent requirements as to criteria for restricting rights and freedoms than Article 31(3), first sentence, of the Constitution. However, at no point does the Constitutional Tribunal explain what the said difference in restrictiveness comprises. This is important, for the Tribunal stresses that Article 53(5) – in comparison with Article 31(3) of the Constitution – does not provide for a premiss such as “the protection of the environment”, which would imply that Article 53(5) is a “weaker” higher-level norm for the review than Article 31(3) of the Constitution. Above all, the Tribunal admits that Article 53(5) of the Constitution is not necessary when it comes to determining the issue of evaluating the restriction of the freedom to manifest religion in the context of ritual slaughter (part III, point 8.2.2). At the onset of its analysis, the Tribunal deems that animal slaughter carried out in accordance with particular methods prescribed by religious rites so as to obtain acceptable food for consumption is subject to protection within the scope of the freedom of religion, enshrined in Article 53(1) and (2) of the Constitution. Thus, the Tribunal has determined the question of the admissibility of the ban on rituals slaughter without relying on Article 53(5) of the Constitution (despite the fact that the said higher-level norm is indicated in the operative part of the judgment).

In my opinion, it is not accidental that the Constitutional Tribunal has not sorted out the relation between two limitation clauses that constitute higher-level norms for the review (the applicant requested the Tribunal to conduct its review in the light of both Article 53(5) and Article 31(3) of the Constitution). This stems from the fact that, in its reasoning, the Tribunal relies on the freedom of the individual in two ways. Indeed, for the Tribunal, the method of ritual slaughter is compatible with restrictions that are necessary from the point of view of the freedom to manifest religion as well as it constitutes part of the freedom of a person concerned with obtaining food. However, I hold the view that if we render ritual slaughter as a matter of freedom as such, then the proper higher-level norm for the review should be Article 31(3) of the Constitution. If the said slaughter is a form of manifesting the freedom of religion, and this is indeed the case, then the proper clause is Article 53 of the Constitution (para 5). Unlike Article 31 of the Constitution, Article 53(5) of the Constitution is meant for analysing matters that are “risky” from the point of view of “threats to morals” in the context of the freedom of religion. Due to the “irrelevance” of the requirement of the protection of morals in the context of evaluating ritual slaughter, the Tribunal combined the reasoning arising from Article 31(3) and Article 53(5) of the Constitution.

 

II

 

In the statement of reasons, ‘values’ are mentioned 24 times. However, when the Tribunal discusses, to use its words, matters that are “of secondary importance” (in my opinion, only allegedly “of secondary importance”) with regard to the subject of its adjudication – i.e. the end use of meat obtained from slaughter, including the issue of potentially limiting the scale of that slaughter, and related export – it states that providing solutions in the context of constitutional values is not the task of the Tribunal, but the job of the legislature. “These matters should be sorted out by the legislative branch of government” (part III point 11.2). The Tribunal stresses that “[t]he legislator’s task is to weigh up competing values so that the protection of animals and the freedom of religion could be effectively realised” (part III point 8.3). There is no doubt that the Tribunal means here “constitutionally protected value[s]” i.e. constitutional values (part III point 8.3). The mixing up of values with constitutional values is not a question of the interchangeable use of the term ‘values’, but a consequence of a defective way of refusing to address the issue of the use of meat obtained from ritual slaughter.

Constitutional values are never determined by the legislator. He has no right to determine them. It is the task of a constitutional court to weigh up constitutional values, and not – let me reiterate it once again – the task of the ordinary lawgiver. The cited arguments from part III point 8.3 contradict the operative part of the judgment, for in the operative part of the judgment, Article 53(5) of the Constitution is used to resolve a conflict of constitutional values. The present case was brought before the Tribunal because the ban on ritual slaughter was derived from an ordinary statute. Indeed, in the course of constitutional review, if the Tribunal did not examine and weigh up constitutional values (in the present case – values related to the freedom to manifest religion and animal welfare) and passed on that task to the legislator, the Tribunal would be an authority that would not adjudicate, but merely verify, whether provisions “match”, or do not match, the Constitution. The Tribunal’s activity could be compared to that of an entity that carries out supervision, and not to that of a constitutional court. The way the Constitutional Tribunal renders the issue of constitutional values, which I have cited from point 11.2 and point 8.3 in part III of the statement of reasons for the Tribunal’s judgment – namely that the matter of weighing up constitutional values is left at the discretion of the ordinary legislator – undermines the relation between the Constitution and a statute as well as the Tribunal’s role as a guide for the legislator when it comes to weighing up constitutional values.

The reasoning presented by the Tribunal blurs the distinction between ‘values’ and ‘constitutional values’ in a given case. Let me point out that only the most important interests constitute constitutional values. Thus, ‘a value’ is not the same thing as ‘a constitutional value’. ‘Constitutional values’ concern interests enshrined in the Constitution, which are weighed up in the light of the Constitution by the constitutional court. By contrast, ‘values’ may be determined by many different authorities (e.g. this is done by the government or the legislator). If the Tribunal is imprecise in specifying what it is supposed to do as a constitutional court with regard to ‘values’ and ‘constitutional values’ and maintains that the constitutional values of key significance are weighed up by another authority than the Tribunal, then a question arises as to which organ of the state should be expected to provide due precision in that respect.

Let me stress this once again that, in the reasoning presented by the Constitutional Tribunal, where the issue of the use of meat obtained from ritual slaughter is regarded as “a secondary matter” in the context of the present case, the ordinary legislator is to decide about constitutional principles. The term ‘constitutional principles’ has been introduced into jurisprudence so that it can serve weighing up constitutional values, and not assigning determination in that respect to the ordinary legislator. Finally, I wish to note that weighing up constitutional values by the constitutional court always occurs at a certain “expense”. They are realised to a greater or lesser extent, one at the expense of another, but this is in no way – as the Tribunal puts it – a question of them being “effectively realised”. (cf. part III, point 8.3).

 

III

 

To sum up, when determining the question of constitutionality of Article 34(1) of the Animal Protection Act, insofar as it does not permit subjecting animals in a slaughterhouse to particular methods of slaughter prescribed by religious rites, the Constitutional Tribunal did not weigh up constitutional principles referred to in the present case. On the basis of the Tribunal’s reasoning, it is possible to argue for the unconstitutionality of Article 34(1) of the Animal Protection Act, as well as to assert that the said provision is constitutional. In the case where no test of proportionality is carried out, the freedom to manifest religion overrides the protection of morals as well as the protection of morals may take precedence over the act of manifesting religion.

The Tribunal did not examine the issue of slaughter in the context of the protection of morals, mentioned in Article 53(5) of the Constitution. As I have noted before, according to the Constitutional Tribunal, society accepts animal slaughter intended for the provision of food, and as long as this is the case, and also as long as it is not clearly determined which method of animal slaughter is more painful, then this releases the Tribunal from examining whether a total ban on only one method of slaughter (the ritual method) is necessary from the point of view of the protection of morals as a premiss that serves the assessment of restrictions imposed on the freedom to manifest religion (see part III point 8.2.2). Given such an approach to ritual slaughter, according to the Constitutional Tribunal, “the protection of morals” as a premiss loses its significance; yet, despite that conclusion, the Tribunal still mentioned that premiss in the operative part of the judgment. The Tribunal adjudicated on the admissibility of ritual slaughter on the basis of Article 53(1) and (2) of the Constitution, emphasising the key importance of the freedom of religion, without referring to Article 53(5) of the Constitution. The operative part of the judgment is actually based only on this sentence from the statement of reasons “the protection of animals may not take precedence over the provisions of the Constitution on the freedom of religion” (part III point 8.3). The operative part of the judgment is not supported by an examination of the hierarchy of constitutional values. Alternatively, it may be considered to be based on the jurisprudence of administrative or constitutional courts of other countries. This is the case in part III point 8.3 of the statement of reasons.

In my view, in the context of its reasoning, the Tribunal may not object to a statutory solution that entails exporting meat obtained from ritual slaughter, if the said export is not already permissible in the current legal situation. This is so because, first of all, the Tribunal separated the problem of ritual slaughter from the premiss of the protection of morals (Article 53(5) of the Constitution), and secondly, in a defective way, it refused to address the issue of the use of meat obtained from ritual slaughter. Since the Constitutional Tribunal has assigned the legislative branch of government with the task of weighing up the freedom to manifest religion and the issue of the end use of meat (see part III, points 8.3 and 11.2), then the outcome may be to the disadvantage of animal welfare.

 

 


* The operative part of the judgment was published on 12 December 2014 in the Journal of Laws, item 1794.