–Anna Śledzińska-Simon, University of Wroclaw[*]
When a judge is to decide on the conformity of a ritual slaughter ban with a constitution she cannot help but realize that it is material for a landmark decision. Yet, in Poland the full panel of the Constitutional Tribunal missed this chance and rendered a judgment that is wrong – both for procedural and substantive reasons.
In a 9-to-5 decision, the Constitutional Tribunal ruled that the Act on Animal Protection, insofar as it does not permit animal slaughtering (in slaughterhouses) according to specific methods required by religious rites and subjects non-stun slaughter to criminal sanctions, is contrary to the constitutional guarantee of freedom of religion and Article 9 of the European Convention of Human Rights. At first glance, it seems a sound decision. However, the trouble is that the Tribunal’s ruling was too broad: it held that shechita is permissible regardless of who performs it and for what purpose.
In fact, the argument of the Union of Jewish Religious Communities, acting as the petitioner in this case, that the lack of an exemption from the prohibition of non-stun slaughter infringes freedom to practice religion and live according to religious rules on the territory of Poland, was misunderstood. Instead of finding that ritual slaughtering is a constitutionally protected religious practice of a particular community and its members, the Tribunal extended the constitutional protection to thousands of animal breeders and slaughterhouse owners who produce and export kosher and halal meat for profit.
It is quite unusual for the Constitutional Tribunal in Poland to be more rights-sensitive than required, in particular with regard to a minority religion. In 28 years of constitutional adjudication in Poland, there were just 12 decisions concerning freedom of religion and the church versus state relationship, but most of them reaffirmed the privileged position of the Catholic Church and approved of teaching religion in public schools, including religion grades in student records, counting religion grades towards a student’s grade point average, or providing public funding for denominational schools. At the same time, the Tribunal has never struck down a law on the grounds that it violated the position of a minority religion. Surprisingly, in this freedom of religion case, the Tribunal was oversensitive towards politically vital interests of Polish meat producers and exporters.
This comment aims to discuss obvious pitfalls of the reasoning of the Constitutional Tribunal in the ritual slaughter ban decision, while arguing that this case is important for a different reason than being a landmark. It raises interesting questions both about the hierarchy of sources (including the relationship between domestic and EU law) as well as the proper method of exercising proportionality analysis.
The ritual slaughter ban case and the hierarchy of legal sources
The judgment of the Constitutional Tribunal, which found the prohibition of non-stun slaughter unconstitutional, was in fact a second decision on this matter. Two years ago, the Tribunal ruled that the ministerial regulation permitting ritual slaughter in slaughterhouses was unconstitutional for excess of statutory delegation. According to Article 92(1) of the Constitution of Poland, an executive regulation needs to be consistent with the statute it aims to implement and must remain within the limits of the statutory delegation. In this earlier decision, the Tribunal found that the regulation of the Minister of Agriculture legalized ritual slaughter against the aim and wording of the Act on animal protection, which required humanitarian treatment of animals and mandated stunning. Interestingly, the religious exemption was introduced to the Act on animal protection in 1997, but repealed in 2002. Admittedly, in the course of pre-accession implementation of the EU standards, the legislator intended to prohibit animal killing without stunning. Yet, whether the legislator intended to prohibit ritual slaughter for local consumption of members of certain religious communities is less clear since derogations from stunning in case of religious slaughter taking place in slaughterhouses existed in EU law at that time.
As a consequence of the first decision of unconstitutionality, the ministerial regulation lost binding force from a date coinciding with the entry into force of directly applicable EU law (Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing). Notably, the Council Regulation envisioned a religious exemption, provided that the slaughter took place in a slaughterhouse, while allowing Member States to maintain their more protective regimes of animal protection at the time of killing that could include total bans on ritual slaughter. Yet, the application of this exemption to slaughterhouses that produce meat not as an element of their religious practice or for the local consumption by orthodox Jews and Muslims, but for export, remains questionable in light of Motive 18 of the Council Regulation (in fine).
After the government notified the European Commission about a more protective regime of animal protection, ritual slaughter was prohibited in Poland from 1 January 2013, the date of the entry into force of the Council Regulation. Yet, some authorities claimed that ritual slaughter could still be legally carried out on the basis of the Act on Jewish Religious Communities, which recognized “care for ritual slaughter” as one of their tasks. In the second decision, the Tribunal ultimately determined that the Act on the Jewish Religious Communities could not be considered as an autonomous basis of the religious exemption for the non-stun prohibition because the legislator had intentionally removed such an exemption from the Act on animal protection.
After the second decision became final, acts of ritual slaughter are not prosecutable in Poland. However, it is less clear what the legal basis of such a practice should be until the legislator regulates this matter more specifically. In the view of the majority opinion, ritual slaughter can be carried out on the basis of the EU Regulation. However, according to one dissenting judge, the lack of a specific religious exemption provided by law does not preclude the direct application of the Constitution, which mandates the interpretation of the Act on Jewish Religious Communities in dubio pro libertate.
The ritual slaughter ban and proportionality analysis
The second decision is also illustrative of the way the Constitutional Tribunal in Poland carries out proportionality analysis. Crucially, it was decided on abstract review and not in relation to a particular judicial decision or criminal investigation.
For all judges adjudicating this case, ritual slaughter fell under the scope of protection of freedom of religion. Moreover, all judges agreed that an absolute ban on ritual slaughter was excessive. However, a closer look at the constitutional challenge reveals that the constitutional problem in this case lay not in the prohibition of ritual slaughter, but in the lack of a religious exemption from the prohibition to kill animals without stunning. Thus, the problem concerned a normative gap, resulting from the legislative failure to fulfil the positive obligation to protect religious freedoms by law. The Constitutional Tribunal should have identified the problem as a legal gap and covered it with a normative standard derived from the constitutional guarantee of freedom of religion in connection with the principle of proportionality. Moreover, the religious exemption should have been construed narrowly, since animal protection should be recognized as a constitutional value and a worthy purpose in the light of the constitutional limitations clause applicable to the freedom of religion.
Ultimately, the Tribunal held that the challenged law aimed to protect animal welfare, which falls under the public morality clause. Moreover, the Tribunal confirmed that animal protection is an inherent element of the constitutional axiology. In the next step, the Tribunal decided that a total ban on ritual slaughter is unnecessary for the protection of public morality. Yet, since the Tribunal refused to assess whether ritual slaughter is contrary to public morality, the outcome of the balancing exercise is unconvincing and implies an inherent hierarchy between constitutional rights and values, which rendered the proportionality analysis redundant in this case.
Had the Tribunal in fact attached constitutional importance to the protection of animal welfare and the moral prescription not to inflict harm on other beings, it would have stated that only a narrow exemption granted to religious communities for the purpose of carrying out rites and providing food for their members passes the least restrictive test. In the circumstances of a total ban, import of kosher meat could not be considered as an adequate alternative. Yet, in its ruling, the Tribunal actually opened the possibility of mass ritual slaughter in the name of freedom of economic activity even though the axiological equivalence of freedom of economic activity, unsupported by religious motivation, and the protection of animal welfare is far from clear.
Suggested citation: Anna Śledzińska-Simon, A “Stunning” Decision of the Polish Constitutional Tribunal: The Ritual Slaughter Case, Int’l J. Const. L. Blog, Jan. 19, 2015, at: http://www.iconnectblog.com/2015/01/a-stunning-decision-of-the-polish-constitutional-tribunal-the-ritual-slaughter-case/
[*] The author is a national expert on Poland in the Proportionality and Public Policy project carried out by the Israel Democracy Institute.
 Official Journal of 2003, No. 106, Item 1002.
 Judgement of 10.12.2014, Case no. K 52/13.
 Judgment of 27 27.11.2012, Case no. U 4/12.
 I.e. Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing Official Journal L 340 , 31/12/1993 p. 21 – 34.
 Article 4 (4) of the Council Regulation.
 Article 26(1) of the Council Regulation.
 “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.”
 Act of 27.02.1997 on the relationship of the state to the Union of Jewish Religious Communities, Official Journal of 2014, No. 1798.
 Cha’are Shalom Ve Tsedek v. France, 27.07.2000, Appl. No. 27417/95.
 See judgement of the Federal Constitutional Court, 15.01.2002 – 1 BvR 1783/99.