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Animal Welfare Beats Freedom of Religion

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Sien Devriendt and Carla M. Zoethout have recently presented, in this blog, the ECtHR judgment of 13 February 2024 in Executief van de Moslims van België et al. v. Belgium (16760/22 et al.), welcoming the change in ethical thinking regarding animal welfare reflected in that judgment. In this post, which is based on a comment forthcoming, in German, in MenschenRechtsMagazin, I want to highlight the costs, in terms of the protection of minority rights, involved in giving animal welfare priority over freedom of religion.

The legitimate aim of the impugned Flemish and Walloon decrees

The judgment under review notes that the ritual slaughter of animals regulated by these decrees falls within the scope of the applicants’ right to manifest their religion as a matter of “observance” within the meaning of Article 9 (§ 65). For the decrees to prohibit the slaughter of animals without prior stunning, including reversible stunning, therefore interferes with the applicants’ freedom to manifest their religion (§§ 87 f.) Such interference can be justified if it pursues one or more of the legitimate aims listed in Article 9 § 2 whose enumeration is exhaustive and whose definition is restrictive (§ 91).

While the Court’s general practice is to be quite succinct when it verifies the existence of a legitimate aim within the meaning of Article 9 § 2 this is not the case in the judgment under review. Noting that animal welfare is not mentioned in Article 9 § 2 (§ 93), the judgment under review follows an approach taken previously by the Court (§ 97): it holds that the protection of public morals, to which Article 9 § 2 refers, cannot be understood as being intended solely to protect human dignity in the sphere of relations between individuals. Rather, the ECHR takes an interest also in the environment in which those individuals live, and especially in animals (§ 95). But the judgment under review fails to explain how this approach may be squared with its own assumption (§ 91) that the enumeration of the exceptions in Article 9 § 2 is exhaustive and their definition is restrictive. It can hardly be said that a restrictive interpretation of the protection of public morals includes animal welfare.

The judgment under review rather undertakes to buttress the result it has reached by that interpretation with various other arguments. In one of them, it refers to other member States of the Council of Europe having enacted legislation to the same effect as the impugned decrees, which it maintains confirms the growing importance of animal welfare considerations, and to the decisions of the ECJ and the Belgian Constitutional Court who have held that the protection of animal welfare was an ethical value to which contemporary democratic societies attached increasing importance which should be taken into account in assessing restrictions on the outward manifestation of religious beliefs (§ 99). Without finding a corresponding European consensus (§ 106) it makes do with a mere trend (similarly, but with the aim of extending human rights protection, ECtHR, Christine Goodwin v. United Kingdom, 28957/95, 11/7/2002 (GC), § 85: “The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.”)

More assailable is the judgment under review when it invokes the Court’s “living instrument” jurisprudence according to which “the Court must … have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved … . It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.” (ECtHR, Stafford v. United Kingdom, 46295/99, 28/5/2002, § 68). The judgment under review notes that the concept of “morals” is inherently evolutive (§ 96). In doing so, it appears to be the first instance of an open divergence from the rationality of the “living instrument” jurisprudence: breaking with precedent, and referring only to the judgment of the ECJ in the same case (ECJ, Centraal Israëlitisch Consistorie van België et al., C-336/19, 17/12/2020, § 77), it applies that jurisprudence not to a Convention right but to an exception therefrom. Going back to the original rationality of that jurisprudence, this would imply that the Court does not want to become a bar to extended exceptions. However, such a reasoning would constitute a complete reversal of the very raison d’être of the Convention and be hardly compatible with Article 19 ECHR.

The break with precedent becomes even more pronounced when the judgment under review, in assessing the justification of the impugned decrees, refers to the promotion of the welfare of animals as a moral value shared by many people in the Flemish and Walloon Regions (§ 98). While „t is true that popular sentiment may play an important role in the Court’s assessment when it comes to the justification on the grounds of morals … there is an important difference between giving way to popular support in favour of extending the scope of the Convention guarantees and a situation where that support is relied on in order to narrow the scope of the substantive protection. … t would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group’s rights to freedom of religion … would become merely theoretical rather than practical and effective as required by the Convention” (ECtHR, Bayev et al. v. Russia, 67667/09 et al., 20/6/2017, § 70). Proponents of “traditional values” will not fail to take notice of the judgment under review: what it does for animal welfare they will also claim for those values. The hitherto clear body of jurisprudence of the Court strongly protecting the rights of heterodox sexual minorities has become mudded: those rights risk, henceforward, to become merely theoretical.

Necessary in a democratic society

On the basis of the reasons discussed above, the judgment under review felt entitled to link the protection of animal welfare to the concept of “public morals” (§ 101). It thus had to consider whether the actual interference provided for by the decrees – the prohibition of the slaughter of animals without prior stunning – was necessary in a democratic society. This was the case if the interference corresponded to a “pressing social need”, if it was proportionate to the legitimate aim and if the Convention State advanced convincing and compelling reasons to justify the interference (§ 103). In deciding these points, the judgment under review follows the general procedural turn in the Court’s jurisprudence which infers from the principle of the subsidiarity of international human rights protection that decisions of democratically legitimised Convention State bodies have particular importance (§ 104). Enhanced deference is due to Convention State legislators in the case of a “choice of society” (§ 105). “In such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question” (ECtHR, S.A.S. v. France, 43835/11, 1/7/2014 (GC), § 154). The difference between a “run of the mill” legislative decision and a “choice of society” is far from obvious. In the two contexts in which the Court has applied the concept – the prohibition of wearing of the full-face veil in public (ECtHR, S.A.S., § 153; ECtHR, Belcacemi and Oussar v. Belgium, 37798/13, 11/7/2017, § 53) and, in the judgment under review, the prohibition of the slaughter of animals without prior stunning – it refers to nothing but an ordinary legislative decision i.e. a majority decision.

While this is not the place to discuss the procedural turn in detail as it is not specific to the judgment under review the following points may be made. Similar to a deference to the views of a majority of the population, to defer to such a “choice of society” risks to lose sight of the protection of a minority. It also risks to lose sight of the specific importance a Convention right may have for an applicant. Both aspects however are of the essence of the Convention. While those risks may be mitigated to some degree by the particular importance the Court gives to the quality of the parliamentary and judicial review of the necessity of a measure (§ 108), they remain real enough. The judgment under review is a vivid demonstration of that. While it declines, correctly, to determine whether the impugned decrees satisfy the precepts of the applicants’ religion (§ 119), rather than accepting the applicants’ autonomous determination of that question it simply disregards the importance of those precepts for them. Devriendt and Zoethout err when they deny that “this mean that humans must give in to non-humans, and that the freedom to manifest one’s religion must yield to animal welfare”. It is only the believers who can decide whether reversibly stunning the animals before slaughter is compatible with the precepts of their religion. If they decide that it is not, it cannot be said that “reversible stunning has now enabled accommodating both sides of this matter”.
 
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