CEDH · CASELAW;CLIN;ENG — 13 février 2024

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Belgium - 16760/22, 16849/22, 16850/22 et al. Judgment 13.2.2024 [Section II] Article 9 Article 9-1 Freedom of religion Manifest religion or belief Decrees in Flemish and Walloon Regions prohibiting animal slaughter without prior stunning, while providing for reversible stunning in ritual slaughter: no violation Article 14 Discrimination Decrees in Flemish and Walloon Regions prohibiting animal slaughter without prior stunning, while providing for reversible stunning in ritual slaughter: no violation Facts – Two decrees, one of which was issued by the Flemish Region in July 2017 and the other by the Walloon Region in October 2018, prohibited the slaughter of animals without prior stunning, while providing for reversible stunning in cases of ritual slaughter. In 2018 and 2019 the applicants, organisations representing Muslims in Belgium and Belgian nationals of the Muslim and Jewish faiths, lodged an application with the Constitutional Court to have those decrees set aside. That court made preliminary references to the Court of Justice of the European Union (CJEU) in the case of the Flemish Region’s decree. Sitting as a Grand Chamber, the CJEU found in its judgment of 17   December 2020, Centraal Israëlitisch Consistorie van België and others , C-336/19, that a reversible non-lethal stunning process was compatible with Article   10 §   1 of the EU’s Charter of Fundamental Rights (UE) on freedom of thought, conscience and religion. In September 2021 the Constitutional Court, in two judgments, dismissed the applicants’ appeals against the decrees. Law – Article   9: (1) Applicability – The applicants had complained that a ban was imposed by the impugned decrees on the slaughter of animals in accordance with the precepts of their religion and that they faced the difficulty, if not impossibility, of obtaining meat from animals thus slaughtered. The Court had previously held that the ritual slaughter of animals fell within the scope of the right to manifest one’s religion as a matter of “observance” within the meaning of Article 9. It had also held that dietary restrictions or prescriptions might fall within the “practice” of a religion. Conclusion : Article   9 applicable (to applicants’ complaints in the applications declared admissible). 2) Merits – (a) Whether there had been an interference – The present case was distinguishable from that of Cha’are Shalom Ve Tsedek v. France [GC] which had concerned a rule intended to regulate ritual slaughter by granting special authorisations to slaughter houses. It was not for the Court to decide whether or not stunning prior to slaughter was in conformity with the dietary precepts of Muslim and Jewish believers. Internal discussion or divergent opinions within those religious communities in that respect could not have the effect of depriving the applicants of the enjoyment of their Article 9 rights. It sufficed for the Court to note that it was apparent from the parliamentary debates leading to the adoption of the two decrees in question that the absence of stunning prior to slaughter constituted an aspect of the religious ritual which attained a certain level of cogency, seriousness, cohesion and importance, at least for certain believers – such as the applicants – of the Jewish and Muslim faiths. In those circumstances, there had been an interference with the applicants’ freedom of religion. (b) Whether the interference was justified – (i) Prescribed by law – The interference was expressly prescribed by accessible and foreseeable legislation. (ii) Legitimate aim – This was the first time that the Court had been called upon to rule on whether the protection of animal welfare could be linked to one of the aims in paragraph 2 of Article 9. Unlike EU law, which had established animal welfare as a general interest objective thereunder (see Article 13 of the Treaty on the Functioning of the European Union), the Convention had not sought to protect animal welfare as such. The protection of animal welfare was not expressly referred to in paragraph 2 of Article 9 in the exhaustive list of legitimate aims capable of justifying an interference with the freedom to manifest one’s religion. However, the Court had previously acknowledged on several occasions that the protection of animals was a matter of general interest under Article 10. Moreover, it had already accepted that the prevention of animal suffering might justify an interference with a right guaranteed by Article   11 for the sake of protecting morals (see Friend and Others v. the United Kingdom (dec.)). The protection of public morals, to which Article 9 § 2 referred, could not be understood as being intended solely to protect human dignity in the sphere of relations between individuals. Moreover, the concept of “morals” was inherently evolutive. In that regard, the promotion of the protection and welfare of animals as sentient beings could be regarded as a moral value shared by many people in the Flemish and Walloon Regions. Moreover, other member States of the Council of Europe had enacted legislation to the same effect as the impugned decrees, thus confirming the growing importance of animal welfare considerations. Accordingly, the CJEU and the Constitutional Court had held that the protection of animal welfare was an ethical value to which contemporary democratic societies attached increasing importance and that it should be taken into account in assessing restrictions on the outward manifestation of religious beliefs. It followed from the foregoing that the Court was entitled to take into account the growing importance attached to the protection of animal welfare, including when examining, as in the present case, the legitimacy of an aim pursued by a restriction on the freedom to manifest one’s religion. It thus considered that the protection of animal welfare could be linked to the concept of “public morals”, one of the legitimate aims under paragraph 2 of Article 9. (iii) Necessary in a democratic society – – The applicable margin of appreciation – In circumstances such as those of the present case, which, on the one hand, concerned relations between the State and religions and, on the other, did not reflect a clear consensus within the member States but nevertheless revealed a gradual evolution in favour of greater protection of animal welfare, the national authorities certainly had to be afforded a margin of appreciation which could not be a narrow one. – Whether the measures were necessary in a democratic society – As regards the quality of the parliamentary scrutiny, which was of particular importance when a general rule was in issue, the regional legislators had sought to weigh up the competing rights and interests in the course of a thorough legislative process. They had expressly given the reasons for their decision in the light of the requirements of freedom of religion, having examined the impact of the measure on that freedom and, in particular, having carried out a lengthy proportionality analysis. As regards the judicial review of the impugned interference, the CJEU and the Constitutional Court had fully taken into account in detail the requirements of Article 9, as interpreted by the Court. This two-tier scrutiny was in line with the principle of subsidiarity and the Court could not disregard these existing examinations for the purposes of its own review. The impugned decrees stated that, where animals were slaughtered in accordance with special methods required for religious rites, the stunning method applied would be reversible and non-lethal. On the basis of scientific studies and extensive consultation with interested parties, the parliamentary work had concluded that no less radical measure could sufficiently achieve the objective of reducing the harm to animal welfare at the time of slaughter. The Flemish and Walloon legislators had 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 prevention of animal suffering in the respective regions. They had taken care to adopt a measure which did not go beyond what was necessary to achieve the aim pursued. It was not for the Court to determine whether this alternative satisfied the precepts of the religion of which the applicants were followers. On the other hand, its existence showed that the authorities concerned had sought to weigh up the rights and interests at stake and to strike a fair balance between them. The Court therefore considered that the measure complained of fell within the margin of appreciation afforded to the national authorities in this sphere. Admittedly, the Bruxelles-Capital Region had not, at the date of adoption of the present judgment, abolished or limited the exemption provided for in respect of the ritual slaughter of animals and was thus different from the Flemish and Walloon Regions. That finding could not in itself lead to the conclusion that the two decrees in question were incompatible with Article 9. Belgium was a federal State and the Court had always respected the special features of federalism in so far as they were compatible with the Convention. Consequently, the applicants could not rely on the mere fact that the legislation in Brussels remained different from that adopted by the Flemish and Walloon legislatures. As regards the second part of the applicants’ complaint concerning the difficulty, or even impossibility, of obtaining meat that was in conformity with their religious convictions, the Flemish and Walloon Regions did not prohibit the consumption of meat from other regions or countries in which stunning prior to slaughter was not a legal requirement. Moreover, the applicants had not shown before the Court that access to meat slaughtered in accordance with their religious beliefs had become more difficult after the entry into force of the impugned decrees. Having regard to all the foregoing considerations, the Court concluded that the national authorities had not overstepped the margin of appreciation afforded to them in the present case. They had taken a measure which was justified in principle and which could be considered proportionate to the aim pursued, namely the protection of animal welfare as an aspect of “public morals”. Conclusion : no violation (unanimously). Article   14 in conjunction with Article   9: (a) The applicants’ position as Jewish and Muslim believers compared with that of hunters and fishermen – It was not for the Court to rule on the compatibility of hunting and fishing with animal welfare, a matter which went beyond the scope of the present case. Secondly, even supposing that the difference in treatment complained of was based on a ground of discrimination prohibited by Article 14, the applicants had not shown that they were in an analogous or relevantly similar situation to hunters and fishermen. The situation of Jewish and Muslim believers who wished to consume meat from ritual slaughter differed from that of hunters and fishermen who killed animals. Moreover, these conditions of killing were significantly different. Since ritual slaughter was carried out on farmed animals, their killing took place in a context that was distinct from that of wild animals slaughtered during hunting and recreational fishing. The same applied to fishing of farmed fish which took place in an aquatic environment that was fundamentally different from that of slaughterhouses. (b) The applicants’ position as Jewish and Muslim believers compared with that of the general population – Jewish and Muslim believers were treated differently from individuals who did not adhere to religious dietary precepts. The decrees in question specifically provided for an alternative stunning method where special slaughter methods prescribed by religious rites were to be used: the stunning process was then reversible and non-lethal. There was therefore no question in the present case of a lack of distinction in the way in which different situations were treated. (c) The position of the Jewish believers among the applicants, in relation to Muslim believers – It was not for the Court, as an international court, to rule on dietary precepts in religious matters, especially when they were a matter of debate. In any event, the mere fact that the dietary precepts of the Jewish religious community and those of the Muslim religious community were of a different nature was not sufficient to conclude that Jewish and Muslim believers were in relevantly different situations in relation to the impugned measure with regard to religious freedom. Conclusion : no violation (unanimously). (See also Cha’are Shalom Ve Tsedek v.   France [GC], 27417/95, 27   June 2000, Legal Summary ; Friend and Others v.   the United Kingdom (dec.), 16072/06, 24   November 2009, Legal Summary ; PETA Deutschland v.   Germany , 43481/09, 8   November 2012, Legal Summary ; Animal Defenders International v.   the United Kingdom [GC], 48876/08, 22   April 2013, Legal Summary ; Advisory opinion as to whether an individual may be denied authorisation to work as a security guard or officer on account of being close to or belonging to a religious movement [GC], P16-2023-001, Conseil d’État of Belgium, 14   December 2023, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .