Today we share with you a case at the heart of one of the battles we fight every day: the defence of animal rights, even those of the most neglected animals such as decapod crustaceans.
Last October, the Rome Tribunal acquitted a restaurant owner who had been charged with the crime of animal cruelty (art. 544 ter of the Italian Criminal Code) for having displayed on ice, with their claws tied, eight live crabs and two live lobsters intended for consumption inside his restaurant.
We decided to submit a reasoned petition to the Prosecutor General at the Court of Appeal of Rome, requesting that the first-instance ruling be appealed. In our view, the Judge’s reasoning is flawed and the offence of animal cruelty should be considered fully established, or at most reclassifiable as the offence under Article 727 of the Criminal Code, which punishes anyone who keeps animals in conditions incompatible with their nature and causing serious suffering.
The Tribunal’s reasoning
First of all, according to the Rome Tribunal’s decision, crustaceans displayed on ice should be regarded as food and no longer as animals under art. 2, letter b) of Regulation (EC) No 178/2002, as live animals «prepared for placing on the market for human consumption». This would exclude them from any form of protection reserved for animals.
As we have already had occasion to explain, this interpretation is flawed. EC Regulation 178/2002 excludes animals from the definition of food, and therefore from its own scope of application, unless they have been prepared for placing on the market for human consumption. According to Regulation (EC) No 853/2004, which lays down specific hygiene rules for food of animal origin, fishery products are considered prepared when they have undergone an operation that has modified their anatomical integrity, such as gutting, beheading, slicing, filleting and mincing. For this reason, it must be ruled out that the mere display of animals on a bed of ice for sale to the consumer determines their classification as food rather than animals, and therefore that only the rules defining food safety regulations apply. If this were to be the conclusion, no animal inside a slaughterhouse would deserve protection, since it is prepared for placing on the market. The Tribunal, in the event of interpretative doubt, should in our view have referred a preliminary question to the Court of Justice of the European Union to ask what the correct interpretation of the rules in question is — an interpretation that cannot go so far as to deny the nature of an “animal” based on the stage of the distribution chain in which it finds itself.
Furthermore, the restaurant owner’s conduct was deemed necessary on the grounds that keeping animals on ice lowers the bacterial load, safeguarding consumer health and anaesthetising the animals before slaughter. In the petition submitted to the Prosecutor’s Office, we clarified that the use of ice to keep the bacterial load low is only useful for animals that are no longer alive, since they no longer possess an immune system that allows them to defend themselves against pathogens. The alleged need to use ice to lower the bacterial load in live crustaceans is a flawed argument that fails to take into account the natural defence system against pathogens that these animals possess, without which they would not be able to survive. Keeping live crustaceans on ice is a highly unnatural practice for these animals, does not respect their ethological and physiological needs, can be a cause of suffering and pain, and does not guarantee that these animals are anaesthetised and thus deprived of the ability to feel pain.
According to the Tribunal, the practice of tying the claws of crustaceans was a preventive measure in response to the aggression the animals might display in conditions of captivity. It should first be noted that this behaviour is the result of the forced cohabitation of animals that in nature are extremely solitary. Claiming that tying the claws is a useful means of preventing aggression among these animals fails to take into account alternative measures that could strike a balance between market interests and those imposed by the ethological needs of the animals.
The Prosecutor General’s response
The Prosecutor General rejected our petition, adopting the Tribunal’s technical and legal arguments. We consider this decision unacceptable and our petition fully founded and reasoned. This case demonstrates how decapod crustaceans are wholly neglected by the law and how essential it is to act in order to prevent the issuance of similar rulings that effectively deny the most basic factual reality: decapod crustaceans are sentient beings, and the mere fact that they are inside a display case, ready to be killed and consumed, cannot possibly lead to their being considered food rather than animals.
The Court of Cassation precedent
We recall that the matter of keeping crustaceans in refrigerators, on ice and with their claws tied had already been addressed by the Court of Cassation, which upheld a conviction by the Florence Tribunal against a restaurant owner from Campi Bisenzio. On that occasion, the Court had established a legal principle that appears to have been entirely disregarded by the Rome Tribunal.