PETA initiates legally historic proceedings in Germany

The constitutional objective of animal protection can no longer be ignored: This coming Tuesday, 19 November 2019, the animal rights organisation PETA will file a complaint with the Federal Constitutional Court in Karlsruhe on behalf of pigs exploited by the food industry, thereby initiating proceedings.

At the same time, activists wearing animal masks and morphsuits will gather, holding up signs bearing demands such as «Legal standing for animals!» and «Right to bodily integrity!». The allegation: the extension of the deadline for the castration of male piglets without anaesthesia, as well as the approval from 2020 onwards of anaesthesia administered by farmers using the questionable anaesthetic gas isoflurane, are unconstitutional. The fact that the affected piglets themselves are acting as complainants is unprecedented in the history of the Federal Republic.PETA emphasises that animals’ right to lodge complaints can already be derived from the German legal order today. The aim of the submission is to have this explicitly recognised by a court. This would pave the way for animals to be granted broader fundamental rights in the future.

«German legislation and the way animals are treated in our society are in glaring contradiction with one another: despite the Animal Welfare Act and the constitutional objective of animal protection, countless animals are tortured and mistreated every day. In order for the existing legal provisions to finally be enforced in practice, it is essential that animals are treated as legal subjects and have the opportunity to take the enforcement of their rights to court.»

Harald Ullmann, Deputy Chair of PETA Deutschland e.V.

Animals need subjective rights

In Germany, when a law is not being complied with, only those who are directly benefited by that law can file a complaint and, if necessary, have their rights enforced through state compulsion. Animals are largely treated as if they were not legal subjects and therefore not capable of bringing legal action. It is only for this reason that the laws enshrined for the protection of animals are disregarded almost as a matter of course. For example, male piglets continue to be castrated without anaesthesia, even though this contradicts the Animal Welfare Act and the constitutional objective of animal protection, and there are even more economically viable alternatives available to farmers.

The right of associations to bring legal action is theoretically intended to improve the enforcement of animal welfare provisions, but it cannot compensate for the existing deficiencies. It currently exists in only seven federal states, and the available legal remedies fall far short of covering all areas of animal use. Furthermore, it has already become apparent that courts sometimes treat association lawsuits as “second-class actions” and even delay proceedings. For animals to be guaranteed effective legal protection, a paradigm shift is necessary: courts must recognise that animals are already, under existing law, legal subjects capable of holding fundamental rights.

The Complaint

The complaint filed was drafted by PETA and attorney Dr. Cornelia Ziehm. The legal challenge contests the law by which the castration of piglets without anaesthesia was extended by a further two years, as this violates the constitutional objective of animal protection. In addition to a statement by legal scholar Prof. Dr. Jens Bülte of the University of Mannheim as an expert in the legislative process, this unconstitutionality is further substantiated by a legal opinion initiated by PETA and Prof. Dr. Anne Peters LL.M. (Harvard), legal scholar and Director at the Max Planck Institute for Foreign Public Law and International Law.

The distinctive feature of this complaint is that the male piglets themselves appear as legal persons and are thus, both formally and substantively, the complainants.PETA and attorney Dr. Ziehm act merely as legal representatives of the piglets in the proceedings. The right of the pigs to appear as complainants in their own name is derived from the existing legal order: the capacity to hold one's own (fundamental) rights and to assert them before a court depends on whether a person is regarded by the legal order as capable of having interests and as intrinsically worthy of protection — conditions that are met in the case of the piglets. This follows from a combined reading and interpretation of numerous provisions of German and European law, in particular the Animal Welfare Act and the constitutional objective of animal protection set out in Article 20a of the Basic Law, as well as the associated legislative materials.

PETA's second chairperson, Harald Ullmann, acts as an additional complainant. He alleges a violation of his guarantee of human dignity (Art. 1 para. 1 of the Basic Law) caused by the evident and ongoing breach of the principle of ethically grounded animal protection that underlies German law. Under this principle, animals are to be protected from unnecessary suffering for their own sake. Human dignity, so the argument runs, is violated when the protection rooted in human values is not realized but is instead systematically disregarded in a manner relevant under criminal law; this makes it impossible for the individual to stand before themselves as a moral subject.

Court Rulings: Rights for Animals and Nature

The idea of granting rights to animals is by no means new. On 28 January 2015, Sandra, an orangutan born at Rostock Zoo in 1986, was freed from more than 20 years of captivity at Buenos Aires Zoo by a district court following a habeas corpus petition. On 3 November 2016, Judge María Alejandra Mauricio similarly ordered the release of Cecilia, a chimpanzee who had been held at Mendoza Zoo for over 30 years, in separate proceedings. In the United States, too, there have already been several hearings in cases where animals filed petitions to have their captivity in laboratories and zoos reviewed: the first on 27 May 2015, for the chimpanzees Hercules and Leo, who were held in a New York animal testing laboratory, before the highest court of the State of New York, and further hearings for Happy, an elephant kept at the Bronx Zoo in New York, in 2018 and 2019.

Several Indian courts, including India's highest court, have already recognized fundamental rights for animals — for example, the dignity of all animals in the animal kingdom, the right of bulls not to be exploited as entertainment objects in races, or the right of birds to fly freely in the sky rather than being caged and sold.

Personal rights have even been granted to nature itself in many parts of the world: people can act as parties to legal proceedings on behalf of nature to file lawsuits against the pollution of rivers and lakes — among others, the citizens of Toledo (Ohio) on behalf of Lake Erie, all people in Ecuador for «Pachamama» (Mother Nature), Indigenous peoples in New Zealand for the Whanganui River on the North Island, people in India for the Ganges and the Yamuna, and in Colombia for the Atrato.

Castration of Piglets Without Anesthesia

Every year, approximately 20 million male piglets are castrated in Germany within their first days of life. This is intended to prevent the so-called boar taint — an odor that develops in a small proportion of meat from male pigs during cooking and that some consumers find objectionable. During castration, the skin over the scrotum is typically cut open without any anesthesia. The testicles are then squeezed out and the spermatic cords are severed or simply torn off. The end of this practice, which violates animal welfare standards, had already been decided in 2013 with a transitional period running until the end of 2018; nevertheless, castration without anesthesia has continued to be carried out as standard practice. On November 29, 2018, the Bundestag, at the initiative of the federal government, voted to extend the transitional period by a further two years.

From 2020, the so-called “fourth method” is to be permitted, under which livestock keepers themselves may anesthetize piglets using the anesthetic gas isoflurane, thereby saving the cost of a veterinary procedure. The only prerequisite is participation in a training course lasting a mere twelve hours. Such a course cannot convey the veterinary knowledge required, meaning that considerable animal cruelty will be commonplace in the barns — for instance, when an insufficient dose of the anesthetic is administered. The effectiveness of isoflurane is also disputed.