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Decision no. 2012-271 QPC of 21 SEPTEMBER 2012

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Association Comité radicalement anti-corrida Europe [the association Committee Radically Against Bullfighting Europe] and another [Criminal immunity in relation to bullfighting]

On 21 June 2012 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 357798 of 20 June 2012) on behalf of the association "Comité radicalement anti-corrida Europe" and the association "Droits des animaux" ["Animal Rights"], raising the conformity of Article 521 of the Criminal Code with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Criminal Code;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations on behalf of the applicant associations by Éric Verrièle Esq., Attorney at the Paris Bar, registered on 11 and 27 July 2012;

Having regard to the observations of the Prime Minister, registered on 13 and 30 July 2012;

Having regard to the observations in intervention on behalf of the associations "Observatoire national des cultures taurines" ["National Monitoring Centre for Bull Culture"] and "Union des villes taurines de France" ["French Union of Bullfighting Towns"] by the SCP Piwnica et Molinié, Attorney at the Conseil d'État and the Cour de cassation, registered on 12 and 27 July 2012;

Having regard to the request for recusation submitted by the applicants, registered on 11 July 2012;

Having regard to the documents produced and appended to the case files;

Having heard Verrièle Esq. on behalf of the applicant associations, Emmanuel Piwnica Esq. for the intervener associations and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 11 September 2012;

Having heard the Rapporteur;

1. Considering that Article L. 521-1 of the Criminal Code provides: "The unnecessary infliction, in public or otherwise, of serious maltreatment, including sexual maltreatment, towards or the commission of an act of cruelty on any domestic or tame animal, or any animal held in captivity, is punished by two years' imprisonment and a fine of €30,000.

"In the event that the owner or the animal is convicted, or if the owner is unknown, the court shall make a decision on the future arrangements for the animal, irrespective of whether the issue was raised during the judicial proceedings. The court may order the confiscation of the animal and stipulate that it be transferred to an animal protection foundation or association of recognised or asserted public interest, which shall be free to decide on arrangements for the animal.

"Natural persons who have been found guilty of the offences provided for under this Article may also be subject to the complementary penalties of a definitive or provisional prohibition on the keeping of an animal or the exercise of professional or social activity for a period of up to five years where the facilities with which that activity is performed were knowingly used in order to prepare or commit the offence. However, this prohibition shall not apply to service in elected office or as a trade union representative.

"Legal persons which have been found to be criminally responsible in accordance with Article 121-2 of the Criminal Code shall be subject to the following penalties:

" – a fine in accordance with the procedure laid down in Article 131-38 of the Criminal Code;

" – the penalties provided for under paragraphs 2, 4, 7, 8 and 9 of Article 131-39 of the Criminal Code.

"The provisions of the present article are not applicable to bullfights where an uninterrupted local tradition can be shown. Nor do they apply to cockfights in localities where an uninterrupted tradition can be established.

"The penalties set out in the first paragraph apply to the creation of any new centre for holding cockfights.

"The same penalties also apply to the abandonment of a domestic or tamed animal, or of an animal held in captivity, with the exception of animals used for repopulation purposes";

2. Considering that, according to the applicant associations, in creating an exception for bullfights from the criminal punishment provided for under the first subparagraph of Article 521-1 of the Criminal Code, the provisions of the seventh subparagraph of that Article breach the principle of equality before the law;

3. Considering that the application for a priority preliminary ruling on the issue of constitutionality concerns the first phrase of the seventh subparagraph of Article 521-1 of the Criminal Code;

4. Considering that Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "The law... must be the same for all, whether it protects or punishes"; that the principle of equality does not prevent the legislator from resolving different situations in different ways, or from derogating from equality on the grounds of the general interest, provided that in both cases the resulting difference in treatment is directly related to the objective of the law establishing it; that pursuant to Article 34 of the Constitution, as well as the principle of the legality of criminal offences and punishments according to Article 8 of the 1789 Declaration, the legislator is under the obligation to determine the scope of the criminal law and to define criminal offences and other offences in sufficiently clear and precise terms in order to exclude arbitrariness;

5. Considering that the first subparagraph of Article 521-1 of the Criminal Code punishes in particular serious maltreatment and acts of cruelty against any domestic animal or any animal held in captivity; that the first phrase of the seventh subparagraph of this Article precludes the application of these provisions to bullfights; that this exemption is however limited to situations in which an uninterrupted local tradition may be invoked; that in creating a limited exemption from criminal responsibility, the legislature intended that the provisions of the first subparagraph of Article 521-1 of the Criminal Code would not have the effect of calling into question certain traditional practices which do not violate any right guaranteed under the Constitution; that the exemption from criminal responsibility established by the contested provisions only applies in those parts of the national territory where the existence of such a tradition on an uninterrupted basis has been ascertained and solely for the acts associated with that tradition; that accordingly, the difference in treatment established by the legislature between actions of the same nature carried out in different geographical areas is directly related to the object of the law providing for that difference; that moreover, whilst it is for the competent courts to assess whether factual circumstances constitute an uninterrupted local tradition, this concept, which is not equivocal in nature, is sufficiently precise in order to guarantee against the risk of arbitrary action;

6. Considering that it follows from the above that the objection alleging the violation of the principle of equality must be rejected; that the first phrase of the seventh subparagraph of Article 521-1 of the Criminal Code, which does not violate any right or freedom guaranteed by the Constitution, must be ruled constitutional,

HELD :

Article 1. – The first phrase of the seventh subparagraph of Article 521-1 of the Criminal Code is constitutional.

Article 2. – This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 20 September 2012, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr Hubert HAENEL and Mr Pierre STEINMETZ.

Announced on 21 September 2012.