On Tuesday 13 February 2024, the European Court of Human Rights handed down an important ruling on the following subject the issue of ritual slaughter of animals and decrees issued by the Walloon and Flemish Regions, which now require animals to be stunned before slaughter.[1].

The Court's decision clearly establishes that, in adopting these decrees, neither Flanders nor Wallonia violated Article 9 of the European Convention on Human Rights, which protects freedom of thought, conscience and religion, contrary to the applicants' arguments. The applicants include several organisations and members of the Muslim and Jewish communities who, since the adoption of these texts, consider that the decisions taken prevent them from practising their religion as they wish. 

In principle, the Court's ruling puts an end to a long debate. The debate began after the adoption of the two decrees and the decision by the Brussels parliament not to legislate on the matter. In Belgium, it has mobilised even the Constitutional Court (CC), which has asked the Court of Justice of the European Union (CJEU) for a preliminary ruling.

We know, or rather we should know, that religious freedom is not an absolute freedom and that the civil authorities may, to a certain extent, regulate it if the public interest so requires. These restrictions are provided for in paragraph 2 of Article 9 in the following terms: "The freedom to manifest one's religion or beliefs may not be subject to any restrictions other than those which, in accordance with the law, are necessary in order to prevent discrimination. a democratic society, public security, the protection of public order, health or morals, or the protection of the rights and freedoms of others".

The central question in this case, which has not escaped the attention of Belgian legislators, has been, from the outset, whether or not the ban on slaughter without stunning constitutes a restriction on religious freedom and whether, if the answer to this first question is in the affirmative, it complies with the requirement of paragraph 2. It is to this extent that the judgment goes beyond the Belgian context and will have an impact on the Court's case law in the future.

Was there any interference?

The applicants argued that the decrees seriously and unjustifiably restricted their religious freedom. They considered that the Convention did not guarantee the protection of animal welfare and that it only protected humans. In their view, this constitutes unjustified interference.[2].

The Court's responses are particularly interesting and echo theses that have long been put forward by Belgian legislators.

On this point, the Court recalls that, as guaranteed by Article 9 of the Convention, the right to freedom of thought, conscience and religion applies only to convictions which attain a sufficient degree of force, seriousness, coherence and importance. However, where that condition is met, the State's duty of neutrality and impartiality is incompatible with any power of appreciation on its part as to the legitimacy of religious convictions or the manner in which they are expressed. expressed (see Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 81, ECHR 2013 [extracts], and S.A.S. v. France [GC], no. 43835/11, § 55, ECHR 2014 [extracts]). In fact, the Court is hardly equipped to engage in a debate about the nature and importance of individual beliefs. Indeed, what one person may hold to be sacred may appear absurd or heretical to another, and no legal or logical argument can be made against a believer's assertion that a particular belief or practice is an important part of his or her religious observance. (Skugar and Others v. Russia [dec.], no. 40010/04, 3 December 2009).

Contrary to a criticism commonly levelled at the Court, it is clear that it respects and supports the principle of the separation of church and state by refusing to rule on theological issues. In so doing, it is reverting to a doctrine of double incompetence that was already defended in the 19th century, during the debates on the first Constitution of the Belgian State.

" Civil law and religious law are distinct, one does not dominate the other, each has its own domain, its own sphere of action. Mr Defacqz has frankly stated that he wants civil law to exercise supremacy; he is clearly stating the principle that serves as his starting point. We adopt a completely opposite principle, we deny all supremacy to civil law, we want it to declare itself incompetent in religious matters. There is no more relationship between the state and religion than there is between the state and geometry.[3].

More or less the same argument was used fifty years later to demonstrate that it was impossible to punish blasphemy under Belgian law.[4].

That being the case, the Court was obliged to find that the two decrees at issue did indeed interfere in matters relating to religious practice and, logically, came to address the second question: was such interference by the civil authorities in religious matters legitimate under Article 9?

Legitimate interference?

The applicants' main arguments concerned whether or not the interference could be condoned on the ground of public morality. In the applicants' view, this is not the case. The animal welfare argument did not meet the criteria for compliance with that concept in order to justify the contested decisions. The applicants consider that :

Thus, to link the aim pursued to public morality would have the consequence of distorting the letter of the Convention as well as its spirit, and would constitute a radical paradigm shift by asserting the supremacy of the opinion of a section of the population concerned about the welfare of animals as a basis for reducing to nothing an aspect of the Convention that is of fundamental importance to the welfare of animals. freedom of religion of another part of the population.

In a lengthy argument, the Court refuted the applicants' contention. In so doing, it relied on the work of the Belgian regional parliaments, on a judgment of 17 December 2020 (Centraal Israëlitisch Consistorievan België and othersC-336/19, EU:C:2020:1031) of the CJEU, on its own case law, but also on the scientific consensus that exists on the subject.

The Court begins by acknowledging the quality of the legislative work and the CJEU's analysis of the problem.

"In this regard, the Court cannot but find that both the CJEU and the Constitutional Court have, in the course of their respective reviews, taken into take detailed account of the requirements of Article 9 of the Convention, as interpreted by the Court".

Finally, the Court considers that

"In the present case, the Court observes in particular that the decrees at issue state that, where animals are slaughtered in accordance with special methods required for religious rites, the stunning process applied is reversible and does not result in the death of the animal. On the basis of scientific studies and extensive consultation with interested parties, the parliamentary proceedings came to the conclusion that no less radical measure could sufficiently achieve the objective of reducing harm to animal welfare at the time of slaughter (paragraphs 25 and 28 above). Having found no serious evidence in the case-file submitted to it to lead it to question that conclusion, the Court notes that, in so doing, the Flemish and Walloon legislatures sought a proportionate alternative to the obligation of prior stunning, taking into consideration the right claimed by persons of the Muslim and Jewish faiths to manifest their religion in the face of the growing importance attached to the slaughter of animals.prevention of animal suffering in the Flemish and Walloon Regions. They have taken care to take a measure that does not go beyond what is necessary to achieve the aim pursued".

From a legal point of view, we can probably consider that This ruling will encourage European countries that have not yet regulated ritual slaughter to do so, if only to limit exports of meat slaughtered using the old methods to countries that regulate this.

However, it is to be feared that the applicant religious authorities will be obstinate and that the information circulating in the communities will play on the sensitive issue of anti-Semitism or Islamophobia to mobilise their community against this decision. This argument has already paralysed the Brussels legislature, and it's a safe bet that it will be used again.

 

Claude WACHTELAER, Past Président, Leader du Groupe « Europe des Droits »

 

[1] Case Executief van de Moslims van België and Others v. Belgium, Applications no. 16760/22 and 10 others.

[2] In the United States, where freedom of religion and belief is guaranteed by the First Amendment to the Constitution (known as the "free exercise clause"), Jurists - and in particular the Federal Supreme Court and the Supreme Courts of each state - are regularly called upon to rule on these questions of interference. The case law is based on an assessment of the "substantial burden"(substantial burden) that a law or regulation places on religious freedom and the extent to which this burden has a negative impact on free exercise. On this subject, see FALLERS-SULLIVAN, W., The Impossibility of Religious Freedom, Princeton University Press, 2018.

[3] JB Nothomb, national congress, session of 22/12/1830. Nothomb's words should not be misinterpreted. What he is aiming at is the temptation of Caesaropapism. After all, the memory of Joseph II, the sacristan emperor, has not entirely faded, and King William also liked to meddle in the running of cults. Obviously, this does not mean that civil law does not have supremacy ... in civil matters! JB Nothomb is not an apologist for clericalism.

[4] " Canonists define blasphemy as an enormous crime committed against the divinity by words or feelings that offend its majesty or the dogmas taught by religion. This consideration alone is enough to show that blasphemy should have no place in civil law. The purpose of society is not to avenge insults to God, and the State has no right to punish them, since it does not even have the power to know what does or does not constitute blasphemy.. Indeed, a law giving judges the task of punishing blasphemy should also tell them what it means by this. For, in this matter, we cannot rely on individual conscience, since it varies according to whether the judge assesses the offence from the point of view of one positive religion or another, or from the point of view of deism. What one judge would call heresy, another would call dogma. We cannot, therefore, leave it to the judiciary to decide. But in our public law, the legislative power is also incompetent, since it could not define blasphemy without proclaiming a State religion, without breaking the equality between all citizens, and without overturning the separation of Church and State, principles which are enshrined in our Constitution. - Giron, Droit public, n 0362.3, In Pandectes belges, Encyclopédie de législation, de doctrine et de jurisprudence belges, by Edmond Picard and N. d'Hoffschmidt (eds.), Brussels, Larcier, T. .XIII, 1884, coI. 710-712 ".