Companion animals’ welfare as a constitutionally protected interest

Abstract

The existence of a set of media cases involving the practice of crimes of mistreatment of companion animals and the consequences following numerous decisions of the Constitutional Court regarding the unconstitutionality of these norms of the Criminal Code – as well as the anticipation of the effects of the decision of unconstitutionality erga omnes by the open society of constitutional interpreters – caused turmoil in the Portuguese society, leading to declarations and petitions for the inclusion of animal welfare as a legal interest expressly protected in the Constitution. Although a possible decision towards the unconstitutionality erga omnes of those norms does not mean, naturally, that “mistreating an animal is constitutional”, it is important to know the position which is continuously followed by the Constitutional Court and based on two points: whether the incrimination seeks to protect some constitutionally protected interest (and if so, which one) and whether the norm violates the principle of legality of criminal law, as enshrined in article 29, no. 1, of the Constitution of the Portuguese Republic.