Ritual Slaughter K 52/13
The lack of permission to subject animals to slaughter in a slaughterhouse in accordance with special methods prescribed by religious rites is inconsistent with the Constitution of the Republic of Poland. Criminal liability for subjecting animals to such slaughter is inconsistent with the Constitution.
At the hearings on 3 and 10 December, the Constitutional Tribunal (full bench) considered an application filed by the Association of Jewish Religious Communities in the Republic of Poland with regard to ritual slaughter.
In its judgment of 10 December 2014, the Constitutional Tribunal adjudicated that:
- Article 34(1) of the Animal Protection Act of 21 August 1997, insofar as it did not provide for subjecting animals to slaughter in a slaughterhouse in accordance with special methods prescribed by religious rites was 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 (hereinafter: the Convention);
- Article 35(1) and Article 35(4) of the above-mentioned Act, insofar as they provided for criminal liability for subjecting animals to slaughter in a slaughterhouse in accordance with special methods prescribed by religious rites were 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.
As to the remainder, the Tribunal discontinued the review proceedings.
Dissenting opinions were submitted by the following Judges of the Constitutional Tribunal: Wojciech Hermeliński, Teresa Liszcz, Stanisław Rymar, Piotr Tuleja, and Sławomira Wronkowska-Jaśkiewicz.
The Association of Jewish Religious Communities in the Republic of Poland had referred the following issue to the Tribunal: whether it was admissible ‑ in the light of the freedom of religion, guaranteed by Article 53 of the Constitution and Article 9 of the Convention – to have an absolute ban, backed up by criminal sanctions, on the slaughter of animals in accordance with special methods prescribed by religious rites. Due to its religious character, such slaughter is usually referred to as ‘ritual slaughter’.
The Constitutional Tribunal determined that what followed from the provisions of the Animal Protection Act that had been challenged by the applicant was an absolute ban, i.e. a ban to which there were no exceptions, on carrying out ritual slaughter in a slaughterhouse. The said ban had been reinforced by criminal sanctions. In that legal context, Article 9(2) of the Act of 20 February 1997 on Relations Between the State and Jewish Religious Communities in the Republic of Poland, which stipulated that those religious communities had the broadly defined task of “adhering to the practice of ritual slaughter”, might not alone be construed as a basis for carrying out ritual slaughter required by Judaism.
The Tribunal indicated that ritual slaughter carried out in a slaughterhouse was permissible pursuant to the Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, which had been applied directly since 1 January 2013. However, the Council Regulation permitted EU Member States to maintain any national rules that were binding at the time of entry into force of the Regulation and that aimed at ensuring more extensive protection of animals at the time of killing. Such rules were the challenged regulations of the Animal Protection Act, which prohibited ritual slaughter.
The Tribunal considered whether ritual slaughter was subject to protection in the light of the freedom of religion, which constituted a fundamental freedom of the individual. The obligation to respect the freedom of religion was strictly related to the protection of the inherent and inalienable dignity of the person. The Tribunal stated that the guarantee of the freedom of religion, provided in Article 53(1) and (2) of the Constitution, comprised the carrying out of any activities (practices, rites or rituals) which were religious in character. That also included unusual religious activities, or even those that might be unpopular with a majority of the public. The constitutional protection also included ritual slaughter, which had been practiced for centuries by the followers of Judaism and Islam. Ritual slaughter was also subject to protection under Article 9 of the Convention, which had been emphasised by the European Court of Human Rights in Strasbourg.
From the point of view of the Constitution and the Convention, an absolute ban on ritual slaughter, backed up by criminal sanctions, constituted a restriction of the freedom to manifest religion. However, the freedom to manifest religion was not absolute in character. Within the meaning of Article 53(5) of the Constitution and Article 9(2) of the Convention, it might be subject to statutory restrictions, but only if such restrictions were necessary for the protection of national security, public order, health, morals or the freedoms and rights of others.
There was no link between the absolute ban on ritual slaughter and the necessity to protect national security, public order, as well as the freedoms and rights of others. The Tribunal also deemed that the said ban was not necessary for the protection of health.
There were no grounds to assume that the ban on ritual slaughter had been introduced into the Animal Protection Act for the protection of health. What confirmed the lack of any risks to the safety and hygiene of food as well as the health of consumers was the fact that the carrying out of ritual slaughter in a slaughterhouse had been permitted by the rigorous provisions of the Council Regulation (EC) No 1099/2009, as well as the hitherto practice of carrying out ritual slaughter, with regard to which such risks had not been pointed out. Moreover, the admissibility of ritual slaughter remained inextricably linked to the obligation of competent state authorities to control adherence to numerous requirements for carrying out the said slaughter.
Addressing the premiss that there was “a necessity to protect morals”, the Tribunal indicated that in the literature on the subject, morals were understood and interpreted in many different ways. Additionally, the Tribunal stressed that the case under examination did not require any special analyses or conclusions as to the interpretation of the term ‘morals’ in the context of Article 53(5) of the Constitution and Article 9(2) of the Convention. Indeed, that would have no impact on the ultimate assessment of the constitutionality of the challenged provisions. In the said context, the Tribunal noted that, in the case under review, Article 53(5) of the Constitution raised no question as to whether ritual slaughter was moral. For the absolute ban on ritual slaughter to be regarded as an admissible restriction on the freedom to manifest religion, the said provision would have to be proven to be “necessary for the protection of morals”.
The Tribunal pointed out that the subject of the review was one of methods used for the slaughter of farmed animals, which was required by certain religious groups. An analysis of the use of that method in the context of broadly understood ‘morals’ might not be conducted in isolation from other methods used for the slaughter of farmed animals. In fact, it had too frequently been overlooked that also the various methods of slaughter after stunning animals that had been permitted by law caused suffering, pain and distress to animals. The Tribunal stated that since in Polish society the slaughter of farmed animals for the purpose of obtaining meat for people was almost universally accepted, then a total ban on one of the methods (a ritual method) ‑ protected by the freedom of religion, and as to which scientific studies had not unambiguously determined that in every case it was more painful than other methods – was not necessary for the protection of morals.
Taking account of the fact that Polish society assigned great importance to religion and the freedom to manifest it, the Tribunal deemed that the applicant’s argument was convincing that the freedom of religion was not only guaranteed by the Constitution and the Convention, but also constituted one of basic moral values in Polish society. What reinforced the said view was the Preamble to the Constitution, which by reference to values arising from the Judaeo-Christian tradition indicated that such values were universal. Thus, the Tribunal concluded that it was consistent with moral norms shared by a vast majority of Polish society that the freedom of religion should be respected within the broadest possible scope.
Article 35(1) of the Constitution guaranteed that Polish citizens belonging to national or ethnic minorities had the freedom to maintain and develop their own language, to maintain customs and traditions, and to develop their own culture. Respect for the constitutionally safeguarded rights of national or ethnic minorities and for the development of their own culture enhanced the protection of ritual slaughter, arising from the freedom of religion. Consequently, in order to state that an absolute ban on ritual slaughter carried out by minorities was necessary for the protection of the morals of a majority of society would have to be supported with fundamental and properly justified arguments. In the case under review, no such arguments had been put forward.
To sum up the above analysis, the Tribunal concluded that the introduction of the absolute ban on the slaughter of animals in a slaughterhouse was not necessary for the protection of health or morals, but that it reflected deep concern for the welfare of farmed animals at the time of slaughter. The introduction of the absolute ban on ritual slaughter had been proposed by numerous Polish and international organisations that aimed at enhancing the protection of animals. The protection of animals, including farmed animals at the time of slaughter, was embedded in constitutional axiology. However, the statement that a restriction of the freedom to manifest religion in the form of the absolute ban on ritual slaughter was not necessary for the protection of any categories of the public interest, which were specified in Article 53(5) and Article 9(2) of the Convention, entailed that the restriction did not meet the requirements set by the Constitution and the Convention.
The assessment of the conformity of the challenged provisions to the indicated higher-level norms for the review would not be complete without pointing out that they had imposed excessive (disproportionate) restrictions on the freedom of religion. By introducing the absolute ban on the slaughter of animals without stunning in a slaughterhouse, the legislator was not consistent, for in a number of other circumstances, e.g. hunting, it was permissible to kill animals without stunning. Also, the Tribunal noted that from the point of view of the welfare of farmed animals, the absolute ban on ritual slaughter might paradoxically have negative side effects. After the introduction of that ban, there had been news that some animals farmed in Poland had been transported abroad for the purpose of subjecting them to ritual slaughter in other EU Member States that permitted such slaughter.
The Tribunal stated that the challenged provisions did not maintain proper proportions between a constitutionally safeguarded value in the form of the protection of animals and concern for their welfare on the one side and the freedom of religion on the other, especially that the ban on ritual slaughter had been backed up by severe criminal sanctions, which inter alia comprised the administration of the penalty of the deprivation of liberty for up to 2 years. However, the protection of animals did not take precedence over the constitutional provisions concerning the freedom of religion.
Due to the significance of the problem under discussion, the Tribunal also addressed the question of the effects of the judgment. As of the date of the publication of the judgment in the Journal of Laws, it would be permissible to subject animals to ritual slaughter in an appropriate slaughterhouse on the basis of the Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing. In every case (i.e. regardless of the number of animals subjected to slaughter), carrying out ritual slaughter would require adherence to – on the one hand – numerous detailed requirements of Polish and EU law, as well as – on the other – requirements provided for by religious precepts that were characteristic for a given religion. Ritual slaughter carried out in compliance with the law would not be penalised by criminal sanctions.
The Tribunal stressed that the subject of the review proceedings in the case under examination comprised only the assessment of the conformity of the absolute ban on the ritual slaughter of animals in a slaughterhouse, backed up by criminal sanctions, to the freedom of religion guaranteed by the Constitution and the Convention. Consequently, what remained outside the scope of adjudication was a number of matters related to the issue referred for the Tribunal’s review. They included, above all, the end use of meat obtained from ritual slaughter, including a possibility of limiting the scale of such slaughter, and the export thereof. Such matters should be determined by the legislator. Indeed, it was the legislator’s task to weigh constitutional values, such as the freedom of religion and the freedom to manifest it as well as the freedom of economic activity, with the protection of animals provided for in the Constitution. The legislator should assign such weight to conflicting values that each of them would be implemented effectively.
The Constitutional Tribunal also considered it crucial to signal that it was necessary for the legislator to take immediate action to adjust Polish legislation on the protection of animals to the Council Regulation (EC) No 1099/2009. A number of provisions of the Animal Protection Act did not correspond to the standards and terminology provided in the said Regulation, despite the fact that the Regulation had been applied since 1 January 2013.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Maria Gintowt-Jankowicz.