CASE OF EXECUTIEF VAN DE MOSLIMS VAN BELGIË AND OTHERS v. BELGIUM

SECOND SECTION

CASE OF EXECUTIEF VAN DE MOSLIMS VAN BELGIË

AND OTHERS v. BELGIUM

(Applications nos. 16760/22 and 10 others –

see appended list)

JUDGMENT

Art 9 • Freedom of religion • Manifest religion or belief • Decrees in Flemish and Walloon regions prohibiting slaughter of animals without prior stunning, while providing for reversible stunning in ritual slaughter • Art 9 applicable • Differences with case of Cha’are Shalom Ve Tsedek v. France [GC] • Unlike EU law, Convention does not seek to protect animal welfare as such • Protection of animal welfare linked for first time to legitimate aim of protecting “public morals” • Lack of clear consensus within member States but gradual evolution in favour of greater protection of animal welfare • Margin of appreciation not narrow • Requirements of Art 9 taken into account in legislatures’ decisions and two-tier judicial review by CJEU and Constitutional Court • Proportionate alternative to prior stunning obligation sought by law-makers • Margin of appreciation not overstepped • Measure proportionate to aim pursued

Art 14 (+ Art 9) • No discrimination • Applicants’ situation as practising Jews and Muslims not analogous or relevantly similar to that of hunters and anglers • Practising Jewish and Muslim applicants not treated differently from individuals not adhering to religious dietary precepts • Among applicants, situation of practising Jews not relevantly different from that of practising Muslims based solely on difference in dietary precepts

Prepared by the Registry. Does not bind the Court.

STRASBOURG

13 February 2024

FINAL

24/06/2024

This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Executief van de Moslims van België and Others v. Belgium,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Arnfinn Bårdsen, President,
Egidijus Kūris,
Pauliine Koskelo,
Saadet Yüksel,
Lorraine Schembri Orland,
Frédéric Krenc,
Diana Sârcu, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to:

the applications (nos. 16760/22 and 10 other applications) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen Belgian nationals and seven non‑governmental organisations registered in that State (“the applicants” – see appended table), on the various dates indicated in the appended table;

the decision to give notice to the Belgian Government (“the Government”) of the complaints under Articles 9 and 14 of the Convention and to declare inadmissible the remainder of application no. 17314/22;

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by the Government of Denmark and the association Global Action in the Interest of Animals VZW (“GAIA”), who were granted leave to intervene by the President of the Section;

Having deliberated in private on 16 January 2024,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The applications concerned a ban on the ritual slaughter of animals without prior stunning in the Flemish and Walloon regions of Belgium which the applicants alleged was in breach of Articles 9 and 14 of the Convention.

THE FACTS

2. The applicants are organisations purporting to represent Belgium’s Muslim communities, as well as national and local religious authorities from Belgium’s Turkish and Moroccan Muslim communities, Belgian nationals of Muslim faith and Belgian nationals of Jewish faith residing in Belgium. The applicants and their representatives are listed in the Appendix.

3. The Government were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department.

4. SUBJECT MATTER OF THE IMPUGNED DECREES

5. A Decree of the Flemish Region of 7 July 2017, amending the Law of 14 August 1986 on the protection and welfare of animals, regarding permitted methods of slaughtering animals (see paragraphs 16-18 below), and a Decree of the Walloon Region of 4 October 2018 on the Walloon Code of Animal Welfare (see paragraphs 19-20 below) were adopted. In two similarly worded provisions, the decrees repealed a previously existing exception permitting the ritual slaughter of animals without stunning (see paragraph 15 below).

6. ACTION FOR ANNULMENT BEFORE THE CONSTITUTIONAL COURT

7. Some of the applicants, along with other legal and natural persons, brought an action for annulment of the Flemish and Walloon decrees before the Constitutional Court.

8. REQUEST FOR A PRELIMINARY RULING FROM THE COURT OF JUSTICE OF THE EUROPEAN UNION

9. In an interlocutory judgment of 4 April 2019 in the case concerning the Flemish decree, the Constitutional Court submitted a number of preliminary questions to the Court of Justice of the European Union (CJEU), in particular as to whether slaughter without stunning was compatible with European Union (EU) law, having regard to freedom of religion, as enshrined in the Charter of Fundamental Rights of the European Union (“the Charter”; see paragraph 36 below).

10. In its judgment of 17 December 2020 in Centraal Israëlitisch Consistorie van België and Others (C-336/19, EU:C:2020:1031), given contrary to the opinion of Advocate General Hogan (EU:C:2020:695), the Grand Chamber of the CJEU found that point (c) of the first subparagraph of Article 26(2) of Council Regulation (EC) 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (see paragraph 38 below), read in the light of Article 13 of the Treaty on the Functioning of the European Union (TFEU) and Article 10(1) of the Charter (see paragraph 36 below), was to be interpreted as not precluding legislation of a member State which required, in the context of ritual slaughter, a reversible stunning procedure which could not result in the animal’s death. The relevant parts of the judgment read as follows (references omitted):

“48. ... (i) ...[P]oint (c) of the first subparagraph of Article 26(2) of Regulation No 1099/2009 does not fail to have regard to the freedom to manifest religion, as guaranteed in Article 10(1) of the Charter, and (ii) ... in the context of the power afforded Member States, under that provision of Regulation No 1099/2009, to adopt additional rules designed to ensure greater protection for animals than provided for by that regulation, those States may, inter alia, impose an obligation to stun animals prior to killing which also applies in the case of slaughter prescribed by religious rites, subject, however, to respecting the fundamental rights enshrined in the Charter.

...

51. [Such] national legislation ... falls within the scope of the freedom to manifest religion, guaranteed in Article 10(1) of the Charter.

...

53. As the applicants in the main proceedings submit, by imposing the obligation to stun the animal beforehand during ritual slaughter, while stipulating that that stunning should be reversible and not cause the animal’s death, the decree at issue in the main proceedings ... appears to be incompatible with certain Jewish and Islamic religious precepts.

...

55. Consequently, the decree at issue in the main proceedings entails a limitation on the exercise of the right of Jewish and Muslim believers to the freedom to manifest their religion, as guaranteed in Article 10(1) of the Charter.

...

61. ... [N]ational legislation which lays down the obligation to stun the animal beforehand during ritual slaughter, while stipulating that that stunning should be reversible and not cause the animal’s death, respects the essence of Article 10 of the Charter, since, according to the information in the documents before the Court, set out in paragraph 54 above, the interference resulting from such legislation is limited to one aspect of the specific ritual act of slaughter, and that act of slaughter is not, by contrast, prohibited as such.

...

63. It is clear both from the case-law of the Court, and from Article 13 TFEU that the protection of animal welfare is an objective of general interest recognised by the European Union.

...

66. ... [I]t should be noted that national legislation which lays down the obligation to stun the animal beforehand during ritual slaughter, while stipulating that that stunning should be reversible and not cause the animal’s death, is appropriate for achieving the objective of promoting animal welfare referred to in paragraph 62 above.

67. It is apparent from the case-law of European Court of Human Rights that where matters of general policy, such as the determination of relations between the State and religions, are at stake, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight. The State should thus, in principle, be afforded, within the scope of Article 9 of the [European Convention on Human Rights – ECHR], a wide margin of appreciation in deciding whether, and to what extent, a limitation of the right to manifest religion or beliefs is ‘necessary’. The margin of appreciation thus afforded to the Member States in the absence of a consensus at EU level must, however, go hand in hand with a European supervision consisting in determining whether the measures taken at national level were justified in principle and proportionate.

68. As may be seen from recitals 18 and 57 of Regulation No 1099/2009, it is precisely the lack of consensus among Member States as to how they perceive ritual slaughter which led to the adoption of Articles 4 and 26 of that regulation.

...

71. Consequently, by referring to the existence of different ‘national perceptions’ in relation to animals and to the need to leave a ‘certain flexibility’ or ‘a certain degree of subsidiarity’ to Member States, the EU legislature intended to preserve the specific social context of each Member State in that respect and to give each Member State a broad discretion in the context of the need to reconcile Article 13 TFEU with Article 10 of the Charter, for the purposes of striking a fair balance between, on the one hand, the protection of the welfare of animals when they are killed and, on the other, respect for the freedom to manifest religion.

72. As regards, more specifically, the necessity of the interference with the freedom to manifest religion resulting from the decree at issue in the main proceedings, it is apparent from the scientific opinions of the European Food Safety Authority (EFSA), cited in recital 6 of Regulation No 1099/2009, that a scientific consensus has emerged that prior stunning is the optimal means of reducing the animal’s suffering at the time of killing.

...

74. It follows that the Flemish legislature was entitled, without exceeding the discretion referred to in paragraph 67 above, to consider that the limitations placed by the decree at issue in the main proceedings on freedom to manifest religion, by requiring prior stunning which is reversible and cannot result in the animal’s death, meet the condition of necessity.

75. As regards, lastly, whether the interference with the freedom to manifest religion resulting from the decree at issue in the main proceedings is proportionate, first, as is apparent from the preparatory documents for that decree ..., the Flemish legislature relied on scientific research which demonstrated that the fear that stunning would adversely affect bleeding out is unfounded. In addition, those same preparatory documents show that electronarcosis is a non-lethal, reversible method of stunning, with the result that if the animal’s throat is cut immediately after stunning, its death will be solely due to bleeding.

76. Furthermore, by requiring, in the context of ritual slaughter, prior stunning which is reversible and cannot result in the animal’s death, the Flemish legislature also intended to be guided by recital 2 of Regulation No 1099/2009 – in the light of which Article 4 of that regulation, taken as a whole, must be read – which states, in essence, that, in order to spare animals avoidable pain, distress or suffering during the killing process, preference should be given to the most up-to-date method of killing that is authorised, where significant scientific progress has made it possible to reduce the animal’s suffering at the moment of killing.

77. Secondly, like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today, with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings.

78. Thirdly, in accordance with the rule laid down in Article 26(4) of Regulation No 1099/2009, the decree at issue in the main proceedings neither prohibits nor impedes the putting into circulation, within the territory in which it applies, of products of animal origin derived from animals which have undergone ritual slaughter, without prior stunning, in another Member State. The Commission indeed stated, in that regard, in its written observations submitted to the Court, that the majority of Member States authorise, pursuant to Article 4(4) of that regulation, slaughter without prior stunning. Moreover, as the Flemish and Walloon Governments have, in essence, argued, national legislation such as the decree at issue in the main proceedings neither prohibits nor hinders the putting into circulation of products of animal origin derived from animals which have undergone ritual slaughter, where those products originate in a non-Member State.

79. Thus, in an evolving societal and legislative context, which is characterised, as pointed out in paragraph 77 above, by an increasing awareness of the issue of animal welfare, the Flemish legislature was entitled to adopt, following a wide-ranging debate organised at the level of the Flemish Region, the decree at issue in the main proceedings, without exceeding the discretion which EU law confers on Member States as regards the need to reconcile Article 10(1) of the Charter with Article 13 TFEU.

80. Consequently, it must be found that the measures contained in the decree at issue in the main proceedings allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.”

81. Regarding the preliminary question as to the validity of point (c) of the first subparagraph of Article 26(2) of Regulation 1099/2009 in the light of the principles of equality, non-discrimination and cultural, religious and linguistic diversity, as guaranteed by Articles 20, 21 and 22 of the Charter respectively, the CJEU held, in particular, as follows:

“91. ... [I]f the concepts of ‘hunting’ and ‘recreational fishing’ are not to be rendered meaningless, it cannot be argued that those activities are capable of being carried out in respect of animals which have been stunned beforehand. As stated in recital 14 of Regulation No 1099/2009, those activities take place in a context where conditions of killing are very different from those employed for farmed animals.

92. In those circumstances, the EU legislature also did not infringe the principle of non-discrimination in excluding from the scope of that regulation the non-comparable situations of killing referred to in the preceding paragraph.

93. ... [T]he EU legislature made it abundantly clear that scientific opinions on farmed fish were insufficient and that there was also a need for further economic evaluation in that field, which justified the separate treatment of farmed fish.”

94. JUDGMENTS OF THE CONSTITUTIONAL COURT

95. Following that judgment of the CJEU (see paragraphs 7-8 above), the Constitutional Court dismissed the actions for annulment of the impugned decree in two judgments of 30 September 2021 (nos. 117/2021 and 118/2021). It took the view, in particular, that the applicants’ arguments alleging an infringement of freedom of religion and of the principle of equality and non-discrimination were ill-founded.

96. The most relevant parts of judgment no. 117/2021 regarding the Flemish decree (with analogous passages also included in judgment no. 118/2021 regarding the Walloon decree) read as follows (references omitted):

“B.17.3. Special methods of slaughter prescribed by religious rites, together with respect for religious dietary precepts and the ability to obtain meat from animals slaughtered in accordance with such precepts, must be regarded as manifestations of a religious belief and fall within the scope of freedom of religion...

...

B.18.2. According to the applicants, ritual slaughter obeys specific religious precepts requiring, in essence, that Jewish and Islamic believers consume only meat from animals slaughtered without prior stunning, so as to ensure that these animals are not subjected to any process that might damage them or result in their death before slaughter, and that they bleed to death. Although ritual slaughter is understood in different ways within both the Jewish and Islamic religious communities, as is apparent in particular from the documents in the case file, stunning before slaughter is not permitted in at least in some of these communities. The Court will take this circumstance as a starting point for its examination, without seeking to ascertain the propriety or legitimacy of this act in the light of any Jewish or Islamic dogma, or its precise significance within these religions.

B.18.3. Consequently, the decree in question must be regarded as restricting the right of certain believers to manifest a religious belief.

...

B.19.1. The obligation to stun animals prior to slaughter constitutes a restriction on freedom of religion, provided for by decree, whereby the legislature has sought to promote animal welfare. It can be seen from the preparatory documents ... that the legislature considered slaughter without stunning to cause the animal avoidable suffering.

B.19.2. The protection of animal welfare is a legitimate aim in the general interest the importance of which has already been noted, in particular when the European member States adopted Protocol No. 33 ‘on protection and welfare of animals’, annexed to the Treaty establishing the European Community (Official Journal, 1997, C 340, p. 110), the content of which was in large part reproduced in Article 13 of the TFEU. ...

B.19.3. The promotion – in the context of their slaughter – of the protection and welfare of animals as sentient beings can be regarded as a moral value shared by many people in the Flemish Region. Consequently, the aim of preventing, at the time of slaughter, any avoidable suffering by animals intended for human consumption is a matter, firstly, of protecting morals and, secondly, of protecting the rights and freedoms of those who value animal welfare as part of their conception of life. It follows that the aim pursued by the impugned decree is a legitimate aim in the general interest that justifies interference with the rights guaranteed by Article 19 of the Constitution, read in conjunction with Article 9 of the ECHR.

B.20.1. Moreover, the preparatory documents show that the impugned decree seeks to take account of the increasing awareness of the issue of animal welfare in society...

B.20.2. The protection of animal welfare is a moral value to which Belgian society, along with other contemporary democratic societies, attaches growing importance. These social developments must be taken into account in the assessment of animal welfare as a ground justifying a restriction on rights and freedoms ... and, in particular, a restriction placed on the outward manifestation of religious beliefs.

B.20.3. Neither freedom of thought, conscience and religion, nor the separation of Church and State, nor the public authorities’ duty of neutrality require those authorities to make provisions to accommodate any philosophical precept – religious or otherwise – in their regulations.

...

B.21.2. The legislature relied on the scientific recommendations of the EFSA and the Animal Welfare Board in deciding, in line with this scientific consensus, no longer to allow exceptions to mandatory stunning prior to slaughter ...

B.21.3. It follows that the legislature was entitled to take the view that, by requiring non-lethal, reversible prior stunning, the restrictions which the impugned decree placed on freedom of thought, conscience and religion were necessary and that the aim pursued could not be achieved using a less radical measure ...

B.22.1. The preparatory documents also show that, being conscious of the fact that the impugned decree interfered with freedom of thought, conscience and religion, the legislature sought to strike a balance between the aim thus pursued of promoting animal welfare and respect for freedom of thought, conscience and religion ...

B.22.3. In order to be as responsive as possible to the concerns of the affected religious communities ... , Article 3 § 2 of the Decree of 7 July 2017 provides that, where the killing is subject to particular methods of slaughter prescribed by a religious rite, stunning must be reversible and cannot not result in the animal’s death (section 15(2) of the Law of 14 August 1986, as replaced by Article 3 of the impugned decree).

B.22.4. Although, in the applicants’ view, this alternative method of stunning is not in line with the religious precepts of the Jewish and Islamic communities, or of some of them at least – a statement the accuracy of which this Court is not in a position to assess –, this concession may nevertheless be taken into consideration in assessing the proportionality of the restriction on freedom of thought, conscience and religion. ...

B.23.1. Furthermore, it is emphasised in the preparatory documents for the Decree of 7 July 2017 that the ability of believers to obtain meat from animals slaughtered in accordance with religious precepts is not affected, there being no provision prohibiting the import of such meat into the Flemish Region. ...

B.23.2. However, the legal rules on animal slaughter applicable in other countries and regions, over which the legislature has no control, can play no part in assessing the pertinence or proportionality of the decree in question.

Other countries and regions are free to decide whether to provide for an exception to the ban on slaughter without stunning in the case of religious rites. What is more, the legislature, pursuant to Article 26(4) of Regulation (EC) 1099/2009, cannot prohibit the import of meat from animals slaughtered without stunning from other member States of the European Union. That provision seeks to strike a balance between animal welfare and the free movement of goods.

The fact that the legislature is not in a position, in this context, to protect animal welfare fully by restricting the sale and consumption of meat from animals slaughtered without stunning cannot, however, prevent it from pursuing that aim by means of such measures as it is empowered to take.

B.24. It follows from the foregoing considerations that the restrictions which the impugned decree places on freedom of thought, conscience and religion, while permitting non-lethal, reversible prior stunning where killing is subject to particular methods of slaughter prescribed by a religious rite, meet a pressing social need and are proportionate to the legitimate aim pursued, namely, the promotion of animal welfare. Consequently, the impugned decree does not entail an unjustified restriction on freedom of thought, conscience and religion.”

11. As to the argument alleging a breach of the principle of equality and non-discrimination, the Constitutional Court held, in particular, as follows:

“B.42.1. Firstly, it should be noted that the impugned decree treats Jewish and Muslim believers differently from individuals who do not adhere to religious dietary precepts. Thus, where killing is subject to particular methods of slaughter prescribed by religious rites, the impugned decree provides for an alternative stunning method, using a process which is reversible and cannot result in the animal’s death ...

B.42.2. Assuming that Jewish and Islamic believers are in fundamentally different situations from the that of individuals who do not adhere to religious dietary precepts, while both categories are subject to the obligation to stun animals before slaughter, the applicants’ complaint amounts, in substance, to alleging an infringement of the religious freedom of Jewish and Islamic believers. ...

...

B.44.2. The mere fact that the dietary precepts of the Jewish religious community differ in nature from those of the Islamic religious community does not suffice to conclude that Jewish and Muslim believers are placed in fundamentally different situations in relation to the impugned measure. Thus, it can be seen from the applications that at least part of both religious communities consider the ban on slaughter without stunning to be incompatible with ritual slaughter in accordance with their religious precepts, potentially making it more difficult for them to obtain meat from animals slaughtered in accordance with those precepts.”

12. Lastly, as to the allegation that, without reasonable justification, the decrees in question treated persons who killed animals while hunting or fishing differently from those who did so in accordance with particular methods of slaughter prescribed by religious rites, the Constitutional Court declared the argument ill-founded, referring to the reasons given in the judgment of the CJEU mentioned above (see paragraph 8).

RELEVANT LEGAL FRAMEWORK

1. DOMESTIC LAW

2. Belgium is a federal State composed of three communities and three regions, each of which has its own powers defined by the Constitution and by special laws. The three regions are the Flemish Region, the Brussels-Capital Region and the Walloon Region.

3. Animal welfare had fallen within the remit of the Federal State until it became a regional competence following a 2014 reform of the State.

4. Legal framework

   1. Federal level

5. Prior to its amendment by the impugned decrees (see paragraphs 16-20 below), the Law of 14 August 1986 on the protection and welfare of animals provided that, except in cases of force majeure or necessity, vertebrates could not be slaughtered without being anaesthetised or stunned (section 15, first paragraph). However, this requirement did not apply to slaughter prescribed by a religious rite (section 16(1), second paragraph).

6. Flemish Region

7. In the Flemish Region, section 15 of the Law of 14 August 1986 was amended by the Decree of the Flemish Region of 7 July 2017 (decreet van het Vlaamse Gewest houdende wijziging van de wet van 14 augustus 1986 betreffende de bescherming en het welzijn der dieren, wat de toegelaten methodes voor het slachten van dieren betreft). As in force since 1 January 2019, section 15 now provides:

Ҥ 1. A vertebrate may not be killed without prior stunning. It may be killed only by a person possessing the requisite knowledge and skill, using the least painful, quickest and most rigorous method.

By way of derogation from paragraph 1, a vertebrate may be killed without prior stunning in the following cases:

(1) force majeure;

(2) hunting or fishing;

(3) pest control.

§ 2. Where animals are slaughtered in accordance with special methods required for religious rites, stunning shall be reversible and the animal’s death shall not be caused thereby.”

17. The aforementioned Flemish decree also added section 45ter, which reads as follows:

“By way of derogation from section 15, the stunning of cattle slaughtered in accordance with special methods required for religious rites may be carried out immediately after their throats are cut, until such time as the Flemish Government determines that reversible stunning is practicable for these animal species.”

18. Under section 36 of the Law of 14 August 1986, as applicable in the Flemish Region, failure to comply with this requirement is punishable by eight days’ to five years’ imprisonment and a fine of 52 to 100,000 euros (EUR), or by one of these penalties alone.

19. Walloon Region

20. In the Walloon Region, section 15 of the aforementioned Law of 14 August 1986 was repealed and replaced by Article D.57 § 1 of the Walloon Code of Animal Welfare, which was adopted on 4 October 2018 and came into force on 1 September 2019. That provision reads as follows:

“An animal may be killed only by a person possessing the requisite knowledge and skill, in accordance with the method that is most rigorous, quickest and least painful for the animal.

An animal shall only be killed after being anaesthetised or stunned, except in the following cases:

(1) force majeure;

(2) hunting or fishing practices;

(3) pest control;

(4) acts of killing provided for in the Nature Conservation Act.

Where the killing of animals is subject to particular methods of slaughter prescribed by religious rites, the stunning process must be reversible and may not result in the animal’s death.”

20. Under Article D.105 § 1 of the Walloon Code of Animal Welfare, killing an animal or causing an animal to be killed without resorting to a method that is rigorous, quick or least painful, in breach of Article D.57 or the conditions laid down therein, is a second-category offence, punishable by eight days’ to three years’ imprisonment and a fine of EUR 100 to EUR 1,000,000, or by one of these penalties alone.

21. Brussels-Capital Region

22. In the Brussels-Capital Region, sections 15 and 16 of the aforementioned Law of 14 August 1986, as described above (see paragraph 15), are still in force on the date of adoption of the present judgment.

23. Parliamentary debates on the obligation to stun animals before slaughter

    1. Federal level

24. A first bill to prohibit ritual slaughter without stunning was introduced in the House of Representatives in 1995 (Bill amending the Law of 14 August 1986 on the protection and welfare of animals and prohibiting ritual slaughter, Parliamentary Documents, House of Representatives, 1995-1996, no. 310/1), followed by a second in 2004 (Bill amending the Law of 5 September 1952 on meat testing and trade and the Law of 14 August 1986 on the protection and welfare of animals, regarding ritual slaughter, Parliamentary Documents, Senate, 2003-2004, no. 3-808/1). Both bills sought to repeal the derogation permitting ritual slaughter without stunning. In 2006 the Conseil d’État delivered an opinion on the 2004 bill, finding that it would disproportionately interfere with freedom of religion (Opinion of the Conseil d’État no. 40.350/AG of 16 May 2006).

25. Subsequently, several bills to prohibit ritual slaughter without stunning were again introduced by various political parties in 2010 (Bill amending the Law of 14 August 1986 on the protection and welfare of animals with a view to prohibiting the ritual slaughter of animals without prior stunning, Parliamentary Documents, Senate, Extraordinary Session 2010, no. 5-36/1; Bill to prohibit ritual slaughter, Parliamentary Documents, Senate, Extraordinary Session 2010, no. 5-256/1; Bill amending the Law of 14 August 1986 on the protection and welfare of animals with a view to prohibiting ritual slaughter without anaesthesia, Parliamentary Documents, House of Representatives, 2010-2011, no. 437/001; and Bill to prohibit the ritual slaughter of animals without stunning, Parliamentary Documents, House of Representatives, 2010-2011, no. 581/001). None of them was passed.

26. Flemish Region

27. After competence in animal welfare matters was transferred to the Regions in 2014, two new draft decrees prohibiting ritual slaughter were submitted to the Flemish Parliament in 2014 (draft decree amending various provisions of the Law of 14 August 1986 on the protection and welfare of animals, regarding a painless method of killing animals for slaughter, Parliamentary Documents, Flemish Parliament, 2014-15, no. 111/1) and in 2015 (draft decree amending the Law of 14 August 1986 on the protection and welfare of animals and the Law of 5 September 1952 on meat testing and trade, regarding the implementation of a ban on ritual slaughter without stunning, Parliamentary Documents, Flemish Parliament, 2014-15, no. 351/1). In its Opinion of 29 June 2016 (Conseil d’État, Opinions nos. 59.484/3 and 59.485/3), the Conseil d’État recommended that the legislature seek a balanced means of reconciling the religious freedom of certain believers with the aim of combating animal suffering.

28. Following that opinion, a new draft decree (Parliamentary Documents, Flemish Parliament, 2016-2017, no. 1213/1) was submitted to the Flemish Parliament, subsequently becoming the impugned Decree of the Flemish Region of 7 July 2017 (see paragraph 16 above). The draft decree was reasoned as follows:

“1.1.1. Introduction

Public opinion is attaching ever-greater importance to animal welfare and therefore expects the [Flemish] Government to develop a consistent, progressive animal welfare policy. There are increasingly urgent demands to put an end to exceptions permitting the slaughter of animals without prior stunning. In 2004 the European Food Safety Authority (EFSA) published a ‘scientific opinion’ based on scientific research, concluding that, in view of the serious animal welfare issues associated with slaughter without stunning, animals should always be stunned before slaughter. The Animal Welfare Board issued a similar opinion in 2010.

1.1.2. Historical background

For the purpose of putting an end to avoidable suffering by animals, [H.S.] submitted a draft decree on 6 October 2014 seeking to prohibit slaughter without prior stunning. On 8 May 2015 [C.J.], [T.V.G.], [G.D.], [S.S.], [A.V.D.] and [B.B.] submitted a different proposal for a similar ban. The Flemish Parliament’s Committee for the Environment, Nature, Land Development, Energy and Animal Welfare wished to examine every aspect of the issue in detail. To this end, it held a hearing on 16 March 2016, at which were heard representatives of the Association of Flemish Towns and Municipalities, the Flemish Animal Welfare Board, the Belgian Meat Federation (FEBEV), the Belgian Muslim Executive, the Jewish Central Consistory of Belgium and Gaia.

After examining the proposals submitted on 25 May 2016, the Committee for the Environment, Nature, Land Development, Energy and Animal Welfare decided to seek the opinion of the Conseil d’État. The Conseil d’État delivered opinions nos. 59.484/3 and 59.485/3 on 29 June 2016.

In its opinions, the Conseil d’État recommended that further measures be developed through dialogue with the affected religious communities, requiring that both sides remain open to alternatives. In response to that recommendation, [the] Flemish Minister for Mobility, Public Works, the Flemish Periphery, Tourism and Animal Welfare appointed [P.V.] as an independent intermediary. [P.V.] was tasked with preparing a report on the matter. ...

On 29 March 2017 [P.V.] presented his report to the Flemish Parliament’s Committee for the Environment, Nature, Land Development, Energy and Animal Welfare. The report had been prepared following consultations with the Belgian Muslim Executive, the Coordinating Council of Belgian Islamic Institutions, Muslinked, the Central Jewish Consistory of Belgium, GAIA, FEBEV, the National Federation of Poultry Slaughterhouses and Cutting Workshops, the Belgian Interfaith Dialogue’s Working Group on Ritual Slaughter and a number of individual companies (SGS, Euromeat Group and Sopraco). ...

1.1.4.4. Exchanges on animal welfare and slaughter in accordance with special methods required for religious rites ...

Taking account of the outcome of these talks, the requirements of Islamic and Jewish rituals and the current state of scientific knowledge, the independent intermediary made the following proposals to better protect animals during slaughter in accordance with special methods required for religious rites:

‘8.1.1. Reversible (non-lethal) stunning

The application of non-lethal, reversible stunning in the practice of ritual slaughter is a proportionate measure which respects the spirit of ritual slaughter within the framework of religious freedom and takes the welfare of the animals concerned fully into account. Therefore, we recommend that non-lethal, reversible stunning be made mandatory for those animal species for which that method is available.’ ...

8.1.2. Post-cut stunning

The application of post-cut stunning during slaughter without prior stunning significantly accelerates the animals’ loss of consciousness and has substantial benefits for animal welfare. Therefore, we recommend imposing the post-cut stunning method for those animal species for which reversible stunning methods have yet to be developed, pending the availability of a viable reversible stunning method. ...’

1.1.4.5. Assessment of the independent intermediary’s proposal

As confirmed by the Conseil d’État it its opinions nos. 59.484/3 and 59.485/3, the legislature must strike a balance between respect for religious freedom and the will to reduce animal suffering, having regard to the protection of fundamental rights under the Constitution and applicable conventions. ...

However, in order for the proposed measure to be optimally assessed from the standpoint of both animal welfare and respect for religious prescriptions, it must also be examined in the light of the criteria referred to in the opinions of the Conseil d’État, which are used to assess measures involving interference with religious freedom. These include the requirement that the measure be ‘prescribed by law’, meaning that it must be laid down in regulations that are sufficiently accessible and clear; that it must pursue a legitimate aim; and that it must be necessary in a democratic society. ...

That being said, as regards the second requirement, the Conseil d’État took the view, in opinions nos. 59.484/3 and 59.485/3, that a prior stunning obligation for ritual slaughter was arguably justified for the purpose of protecting public order and morals and that it therefore pursued a legitimate aim. That condition is also met.

In order to determine whether the measure is necessary in a democratic society, it is necessary to examine the importance of the aim sought to be realised and the proportionality of the measure. As already clarified in point 1.1.4.2, the slaughter of animals without prior stunning causes serious harm to animal welfare, which can be prevented by the animal’s prior stunning.

Flanders attaches tremendous importance to animal welfare and strives to eliminate any avoidable animal suffering in Flanders. The slaughter of animals without prior stunning is incompatible with this principle. Although alternative, less restrictive measures than a ban on slaughter without prior stunning might somewhat reduce the negative impact of that method of slaughter on animal welfare, such measures cannot prevent the perpetuation of severe harm to animal welfare. ...

This does not mean, however, that a balance has not been sought between the protection of animal welfare and freedom of religion.

Both the Jewish and Islamic rituals require the animal to bleed out as much as possible. Scientific research has shown that concerns that stunning might have a negative impact on bleeding are unfounded. In addition, both rituals require that the animal be healthy and in good condition at the time of slaughter and that it should die as a result of loss of blood. As explained in point 1.4.2, electronarcosis is a reversible (non-lethal) stunning method in which the animal, if its throat is not cut, regains consciousness after a short period of time and does not suffer any negative effects from stunning. If the animal’s throat is cut immediately after stunning, its death results solely from the loss of blood. Taking this into account, there is support for the finding of [P.V.]’s report, namely, that the application of non-lethal, reversible stunning in the practice of ritual slaughter is a proportionate measure which respects the spirit of ritual slaughter within the framework of freedom of religion and takes the welfare of the animals concerned fully into account. At a minimum, therefore, an obligation to use electronarcosis for slaughter in accordance with special methods required for religious rites does not disproportionately interfere with freedom of religion. ...

As regards bovine animals (calves and adult cattle), the electronarcosis technique is not sufficiently developed for widespread use under practical conditions at the present time. When these animals are stunned prior to slaughter, a pithing device is used, which causes not only immediate loss of consciousness and numbness, but also tissue damage in the brain. ...

However, the brain damage caused by the pithing device does not immediately result in death. If the animal’s throat is cut immediately after stunning, death will ensue solely as a result of bleeding. This stunning method therefore satisfies the requirement that the animal should die by bleeding alone.

The use of the pithing device immediately after the throat is cut (post-cut stunning) significantly accelerates the animals’ loss of consciousness and has substantial benefits for animal welfare. In addition, this method ensures that the animal is in good condition at the time of slaughter and dies by bleeding. The method therefore respects as much as possible the spirit of ritual slaughter within the framework of freedom of religion, while having regard to the welfare of the animals in question. ...

Lastly, the possibility of importing into Flanders meat and meat-based products from animals slaughtered without prior stunning is not called into question. In this way, believers who wish to carry on consuming meat from animals slaughtered without prior stunning will be free to do so.

It follows from the above that, even if the obligation to use reversible (non-lethal) stunning for small ruminants and small animals for slaughter – and to use post-cut stunning for cattle, pending the development of a viable, reversible (non-lethal) stunning technique – were considered to interfere with freedom of religion, that measure would by no means have a disproportionate effect on the religious laws of the religious communities in question. On the other hand, it would undoubtedly lead to very significant gains for animal welfare. ...

It goes without saying that the new provisions require adaptation by all parties concerned. In order to afford them the necessary time, the obligation will enter into force on 1 January 2019. Moreover, the Flemish minister responsible for animal welfare will appoint someone to assist and support religious communities in discussions throughout the transition towards the implementation of the draft decree to ensure as smooth a transition as possible for all parties concerned.”

26. The draft decree was adopted with 88 votes in favour and one abstention. No member of the Flemish Parliament voted against the draft decree.

27. Walloon Region

28. After competence in animal welfare matters was transferred to the Regions in 2014, two new draft decrees on the prohibition of ritual slaughter were also submitted to the Walloon Parliament in 2015 (draft decree amending the Law of 14 August 1986 on the protection and welfare of animals, with a view to prohibiting the ritual slaughter of animals without prior stunning, Parliamentary Documents, Walloon Parliament, 2014-2015, no. 110/1) and 2016 (draft decree to prohibit slaughter without stunning in Wallonia, Parliamentary Documents, Walloon Parliament, 2016-2017, no. 604/1). The Conseil d’État delivered an opinion on the draft decrees on 20 February 2017, finding once more that repealing the derogation from the prior stunning requirement in the case of ritual slaughter would constitute a disproportionate restriction on freedom of religion and would therefore be incompatible with Article 9 of the Convention (Opinion of the Conseil d’État nos. 60.870/4 and 60.871/4 of 20 February 2017)

29. A new draft decree (Parliamentary Documents, Walloon Parliament, 2016-2017, no. 781/1) was submitted to the Walloon Parliament, subsequently becoming the impugned Decree of the Walloon Region of 4 October 2018 (see paragraph 19 above). The draft decree was reasoned as follows:

“2. The aim of the present draft decree is to organise killing procedures to minimise the stress and suffering caused to animals at the time of killing. It replaces in their entirety the current sections 15 and 16 of the Law of 14 August 1986 on the protection and welfare of animals, most of the provisions of which have not been amended for more than fifteen years, unlike many other provisions that have enabled significant progress to be made in the area of animal welfare. In the meantime, Council Regulation (EC) 1099/2009 of 24 September 2009 on the protection of animals at the time of killing has been adopted and come into force. ...

2.2. [T]he suffering of animals caused by the practice of slaughter without stunning has been conveyed by citizens, politicians, animal welfare associations, veterinary surgeons, associations representing the agricultural sector and the Belgian Federation of Slaughterhouses alike.

2.3. It follows from the above that the provisions contained in Chapter VI of the Law of 14 August 1986 must be reviewed as a whole in order to ensure consistency and compliance of Walloon regional law with Regulation (EC) 1099/2009 as to the practice of animal slaughter, in particular slaughter carried out in a manner prescribed by a religious rite.

Furthermore, the [Walloon] Government means to put an end to the slaughter of farmed animals without stunning in order to avoid any pain and suffering as may be technically avoidable and meet the expectations of civil society, without, however, disproportionately interfering with freedom of religion.

3. ... The third paragraph of section 15 provides that, where the killing of animals is subject to particular methods of slaughter prescribed by religious rites, the stunning process must be reversible, without resulting in the animal’s death. The current exception, which provides that the provisions of Chapter VI of the Law of 14 August 1986 are not applicable to ritual slaughter, is therefore repealed.

This provision speaks to the balance to be struck between animal welfare and freedom of worship. ...

Lastly, section 45 ter has been added to the Law. It establishes a transitional framework – enabling a balance to be struck between animal welfare and freedom of worship – for killings of bovine animals that are subject to particular methods of slaughter prescribed by a religious rite. Stunning is required in any event but, for these animals, the stunning process may take place after slaughter until 31 December 2020. ...

6.1. As to the abolishment of permissible slaughter without stunning in the context of religious rites, the present draft decree does not seek to call into question ritual slaughter but rather the lack of stunning prior to such slaughter. Cultural traditions reflect an inherited, established or customary manner of thinking, acting or behaving, which in fact involves the concept of transmission by a predecessor. Such traditions contribute to maintaining long-standing social bonds between generations. The drafters respect the beliefs and customs of the religious communities in question but are of the view that they must be applied without resulting in additional suffering for slaughtered animals. Moreover, religious communities have regard to the suffering endured by animals at slaughter.

6.2. Many proponents of ritual slaughter without stunning refer to the right to freedom of religion and of religious observance, as laid down in Article 19 of the Constitution and Article 9 of the European Convention on Human Rights. It is clear, however, that this right is not absolute and that society may make it subject to certain rules, depending on the balance of interests among various legal principles. Moreover, there are significant differences of opinion in communities around the world as to whether animals may or may not, in fact, be stunned during ritual slaughter and, if so, how such slaughter should be carried out. ...

6.3. In any event, the protection of animals at the time of slaughter or killing is a matter of public interest. Animal welfare is an EU value enshrined in Article 13 of the Treaty on the Functioning of the European Union. The Constitutional Court and the Conseil d’État have had occasion to confirm that such protection pursues a legitimate aim in the general interest which may result in restrictions on freedoms. ...

6.4. The prohibition of slaughter without stunning, including ritual slaughter, pursues a legitimate aim, necessary in a democratic State. In the drafters’ view, this does not constitute an impediment to freedom of worship. If it were nevertheless deemed to constitute such an impediment, it would have to be regarded as proportionate, contrary to what the various opinions of the Conseil d’État on the matter would seem to suggest.

Thus, the present draft decree by no means affects the ability of believers to obtain halal or kosher meat.

As to previously imported meat, it is not subject to any restrictions under the decree, which would in any event fall foul of Article 26(4) of European Regulation 1099/2009. It is worth pointing out that a number of such imports come from countries where slaughter with stunning is already practiced.

As to Belgian halal or kosher meat, since the practice of electronarcosis will be made applicable to the slaughter of all sheep and goats (and subsequently to all cattle), the prior stunning requirement will not have a discriminatory effect on meat prices.

6.5. It should be stressed, moreover, that the drafters’ approach is supported by the recent opinion of the Walloon Animal Welfare Board, which states that slaughter without stunning is unacceptable and causes the animal avoidable suffering. ...

7. It follows from the foregoing that the drafters of the present draft decree mean to prohibit slaughter without stunning while proposing a proportionate alternative to the affected communities. Where killing is subject to particular methods prescribed by a religious rite, the stunning process must be reversible and therefore cannot result in the animal’s death. Stunning by electronarcosis satisfies this requirement and is already used on sheep in other countries, as mentioned above. However, the method is not yet fully developed for cattle. A transitional period is therefore necessary to perfect the method. The time-limits set out in the decree have been agreed with the slaughterhouse industry. Only if a transitional measure were lacking would the system as a whole be disproportionate. Pending the perfecting of this method, immediate post-slaughter stunning will be required to alleviate the suffering endured by cattle when slaughtered during religious rites. ...”

8. The draft decree was adopted with 66 votes in favour and three abstentions. No member of the Walloon Parliament voted against it.

9. The report submitted by the Environment, Land Development and Transport Committee (Parliamentary Documents, Walloon Parliament, 2016-2017, no. 781/4) shows that an authorised FEBEV representative, an authorised representative of the Walloon Animal Welfare Board, the GAIA association, the Belgian Muslim Executive, the Jewish Central Consistory of Belgium, the Union of Veterinary Surgeons and the Nature et Progrès association were each heard or gave written submissions during the drafting of the report.

10. Brussels-Capital Region

11. A draft order amending the Law of 14 August 1986 on the protection and welfare of animals (Parliamentary Documents, Brussels Parliament, 2021/2022, A-444/1) was submitted to the Brussels Parliament. The draft order was rejected on 17 June 2022: 42 members of the Brussels Parliament voted in favour of the draft order, 38 against, and eight abstained.

12. Draft amendment to the Constitution

13. On 24 November 2023 a draft amendment to the Constitution was approved by the Senate. The amendment proposed adding a new paragraph to Article 7bis of the Constitution, drafted as follows:

“In the exercise of their respective powers, the Federal State, the Communities and the Regions shall ensure the protection and welfare of animals as sentient beings.”

The draft amendment was subsequently sent to the House of Representatives for examination.

2. EUROPEAN LAW

   1. Council of Europe material

3. The European Convention for the Protection of Animals for Slaughter (ETS No. 102), which was opened for signature on 10 May 1979 and entered into force on 11 June 1982, has not been ratified by Belgium. In so far as relevant, it provides:

Article 1

“1. This Convention shall apply to the movement, lairaging, restraint, stunning and slaughter of domestic solipeds, ruminants, pigs, rabbits and poultry.

2. For the purpose of this Convention:

...

Stunning: shall mean any process in conformity with the provisions of this Convention, which when applied to an animal induces a state of insensibility which lasts until it is dead, thus sparing it in any event any avoidable suffering.

Slaughter: shall mean causing the death of an animal after restraint, stunning and bleeding with the exceptions provided for in Chapter III of this Convention.”

Article 2

“...

2. Nothing in this Convention shall, however, prevent Contracting Parties from adopting more stringent rules to protect animals.

...

4. For slaughtering outside or inside slaughterhouses each Contracting Party shall ensure that the animals are spared any avoidable pain or suffering.”

Article 12

“Animals shall be restrained where necessary immediately before slaughtering and, with the exceptions set out in Article 17, shall be stunned by an appropriate method.”

Article 17

“1. Each Contracting Party may authorise derogations from the provisions concerning prior stunning in the following cases:

– slaughtering in accordance with religious rituals;

– emergency slaughtering when stunning is not possible;

– slaughtering of poultry and rabbits by authorised methods causing instantaneous death;

– killing of animals for the purposes of health control where special reasons make this necessary.

2. Each Contracting Party availing itself of the provisions of paragraph 1 of this Article shall, however, ensure that at the time of such slaughter or killing the animals are spared any avoidable pain or suffering.”

3. Recommendation No. R (91) 7 of the Council of Europe’s Committee of Ministers to member States on the slaughter of animals, adopted on 17 June 1991, includes the following provisions:

“The Committee of Ministers ... [r]ecommends to the governments of the member states:

...

ii. to ensure that animals slaughtered outside or inside slaughter-houses are spared any avoidable pain or suffering, in particular by making certain of the skill of persons who are professionally engaged in the restraint, stunning and slaughter of animals;

...

vii. if they authorise slaughter in accordance with religious rites without prior stunning, to take all possible measures to protect the welfare of the animals concerned by ensuring that such slaughter is carried out in appropriate slaughterhouses by trained personnel, who observe as far as possible the provisions in the code of conduct.”

2. European Union law

   1. Primary legislation

3. Article 13 of the Treaty on the Functioning of the European Union (OJ 2016/C 202/01 – “TFEU”), provides:

“In formulating and implementing the [EU]’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the [EU] and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.”

36. Article 10 of the Charter of Fundamental Rights of the European Union (OJ 2012/C 326/02 – “the Charter”) provides:

Freedom of thought, conscience and religion

“1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.”

3. Article 52(1) of the Charter states:

Scope and interpretation of rights and principles

“1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”

2. Secondary legislation

3. The relevant provisions of Council Regulation (EC) 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (Official Journal, 2009, L 303, p. 1) read as follows:

Article 4

Stunning methods

“1. Animals shall only be killed after stunning in accordance with the methods and specific requirements related to the application of those methods set out in Annex I. The loss of consciousness and sensibility shall be maintained until the death of the animal.

The methods referred to in Annex I which do not result in instantaneous death (hereinafter referred to as simple stunning) shall be followed as quickly as possible by a procedure ensuring death such as bleeding, pithing, electrocution or prolonged exposure to anoxia.

2. Annex I may be amended to take account of scientific and technical progress on the basis of an opinion of EFSA and in accordance with the procedure referred to in Article 25(2).

Any such amendments shall ensure a level of animal welfare at least equivalent to that ensured by the existing methods.

3. Community guidelines concerning the methods set out in Annex I may be adopted in accordance with the procedure referred to in Article 25(2).

4. In the case of animals subject to particular methods of slaughter prescribed by religious rites, the requirements of paragraph 1 shall not apply provided that the slaughter takes place in a slaughterhouse.”

Article 26

Stricter national rules

“1. This Regulation shall not prevent Member States from maintaining any national rules aimed at ensuring more extensive protection of animals at the time of killing in force at the time of entry into force of this Regulation.

Before 1 January 2013, Member States shall inform the Commission about such national rules. The Commission shall bring them to the attention of the other Member States.

2. Member States may adopt national rules aimed at ensuring more extensive protection of animals at the time of killing than those contained in this Regulation in relation to the following fields:

(a) the killing and related operations of animals outside of a slaughterhouse;

(b) the slaughtering and related operations of farmed game as defined in point 1.6 of Annex I to Regulation (EC) No 853/2004, including reindeer;

(c) the slaughtering and related operations of animals in accordance with Article 4(4).

Member States shall notify the Commission of any such national rules. The Commission shall bring them to the attention of the other Member States.

...

4. A Member State shall not prohibit or impede the putting into circulation within its territory of products of animal origin derived from animals that have been killed in another Member State on the grounds that the animals concerned have not been killed in accordance with its national rules aimed at a more extensive protection of animals at the time of killing.”

5. COMPARATIVE LAW MATERIAL

6. The following comparative law material is drawn from the parliamentary proceedings in respect of the Decree of the Flemish Region (draft decree amending various provisions of the Law of 14 August 1986 on the protection and welfare of animals, regarding permitted methods of slaughtering animals (Parliamentary Documents, Flemish Parliament, 2016-2017, no. 1213/1, p. 11): Cyprus, Denmark, Finland (Åland province), Germany (subject to temporary exceptions and strict conditions), Iceland, Norway, Slovenia (with an exception for the slaughter of poultry, rabbits and hares by private individuals), Sweden, Switzerland (with the exception of poultry), the United Kingdom and – beyond the States Parties to the Convention – New Zealand have introduced a general ban on slaughter without stunning. In addition, in Estonia, Finland (other provinces), Lithuania, and Slovakia, the practice of post-cut stunning, whereby the animal is stunned at the time when its throat is cut or immediately afterwards, is compulsory for ritual slaughter.

7. Furthermore, in the appendix to application forms nos. 16849/22, 16850/22, 16857/22, 16860/22, 16864/22, 16869/22, 16877/22 and 16881/22, the applicants stated that the Netherlands were considering passing legislation prohibiting slaughter in accordance with religious rites, and that the Netherlands and Poland do not allow the export of meat from animals slaughtered without prior stunning.

THE LAW

1. JOINDER OF THE APPLICATIONS

2. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

3. PRELIMINARY REMARKS

   1. Scope of the case

4. Before the Court, the applicants complained – as they had before the Constitutional Court – of an infringement of their right to freedom of religion in that, as a result of the impugned decrees, it had become difficult, if not impossible, for Jewish and Muslim believers, firstly, to slaughter animals in accordance with the precepts of their religion and, secondly, to obtain meat from animals slaughtered in accordance with those precepts.

5. Having regard to the parties’ observations, the Court observes at the outset that the two decrees complained of by the applicants do not contain a prohibition on ritual slaughter as such. The decrees provide that, subject to the exceptions exhaustively listed therein, the killing of animals, including their ritual slaughter, is permissible only after stunning. They clarify that, where animals are slaughtered in accordance with particular methods required for religious rites, the stunning method applied must be reversible and cannot result in the animal’s death (see paragraphs 16 and 19 above).

6. It is with due regard to this clarification that the Court delivers the present judgment.

7. Third-party intervention by the GAIA association

8. In their observations, all the applicants, with the exception of the applicant in application no. 17314/22, asked the Court to exclude from the case file the third-party intervention by the GAIA association on the grounds that, in its observations, that association had addressed the admissibility and merits of the applications, in breach of the Practice Direction on third-party intervention issued by the President of the Court under Rule 32 of the Rules of Court.

9. The Government expressed no view on the matter.

10. Without considering it necessary to rule on the request to exclude the observations submitted by GAIA under Rule 44 § 5 of the Rules of Court, the Court will take into account only those comments which might be relevant to the assessment of the applicants’ complaints, having regard to the role assigned to third-party interveners, which consists in enlightening the Court without substituting themselves for the main parties to the proceedings (see, mutatis mutandis, Cestaro v. Italy, no. 6884/11, § 127, 7 April 2015).

11. WHETHER THE APPLICANTS HAVE VICTIM STATUS

12. The Government raised two objections of inadmissibility with regard to the victim status of the applicant organisations in application no. 16760/22 and of the applicant – a natural person – who had lodged application no. 17314/22.

13. Whether the applicant organisations have victim status (application no. 16760/22)

    1. The parties’ submissions

14. The Government submitted that the seven organisations representing Muslims in Belgium had not shown that they were victims within the meaning of Article 34 of the Convention, since they were not prevented from organising rites and teaching them to ritual slaughterers, given that the impugned decrees did not call into question ritual slaughter as such.

15. The applicant organisations replied that a religious organisation which alleged a violation of the collective aspect of its members’ freedom of religion could claim to be a victim of that violation, regardless of whether the impugned measure applied to individual believers, the religious authorities, or both. This was certainly so in the present case, in so far as the applicant organisations could no longer organise the rite of ritual slaughter in accordance with the precepts of their religion and could no longer teach that rite to their members, as the decrees in question interfered with its very definition.

16. The Court’s assessment

17. The Court reiterates that under Article 34 of the Convention it may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. For an applicant to be able to claim to be a victim of a violation, there must be a sufficiently direct link between the applicant and the alleged violation. The notion of “victim” is interpreted autonomously and irrespective of domestic rules such as those concerning interest in or capacity to take action. Furthermore, according to the Court’s settled case-law, “victim” status may be granted to an association or trade union only if it is directly affected by the measure complained of (see National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France, nos. 48151/11 and 77769/13, §§ 93-94, 18 January 2018, with further references).

18. In the context of Article 9 of the Convention, the Court has held that a Church or an ecclesiastical body may, as such, exercise on behalf of its adherents the rights guaranteed by that provision (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000-VII; Leela Förderkreis e.V. and Others v. Germany, no. 58911/00, § 79, 6 November 2008; and Association for Solidarity with Jehovah’s Witnesses and Others v. Turkey, nos. 36915/10 and 8606/13, § 87, 24 May 2016).

19. In the present case, the applicant organisations are organisations purporting to represent Belgium’s Muslim communities and national and local religious authorities from Belgium’s Turkish and Moroccan Muslim communities. Their purpose is to organise and teach the Muslim faith. As such, it falls to them to organise the rite, as well as the teaching and certification of ritual slaughterers.

20. The Court takes the view that, to that extent, the organisations purporting to represent Belgian Muslims that lodged application no. 16760/22 can claim to be “victims” of the alleged violation, within the meaning of Article 34 of the Convention. The first objection raised by the Government must therefore be dismissed.

21. Whether the individual applicants have victim status

22. In their additional observations and submissions on just satisfaction, the Government objected for the first time that the applicant Mr Benizri (application no. 17314/22) could not claim to be a victim within the meaning of Article 34 of the Convention. As Mr Binizri resided in the Brussels-Capital Region, where the impugned decrees were not applicable, he had not established that he had been “directly affected” by them.

23. The Court sees no need to examine whether the Government are estopped from raising this objection under Rule 55 of the Rules of Court (see, in this connection, Khlaifia and Others v. Italy [GC], no. 16483/12, § 52, 15 December 2016) since the question of “victim” status within the meaning of Article 34 of the Convention goes to the Court’s jurisdiction and can be examined by it of its own motion (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 93, 27 June 2017).

24. The Court reiterates that, in order to claim to be the victim of a violation, within the meaning of Article 34 of the Convention, a person must be directly affected by the impugned measure. Thus, the Convention does not envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention. However, it is open to a person to contend that a law violates his or her rights, in the absence of an individual measure of implementation, if he or she is required either to modify his or her conduct or risks being prosecuted or if he or she is a member of a class of people who risk being directly affected by the legislation (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010, with further references).

25. In the present case, the Court notes that Mr Benizri (application no. 17314/22) and Mr Guigui (application no. 16871/22) reside in the Brussels-Capital Region where, at the date of adoption of the present judgment, ritual slaughter without stunning is not prohibited (see paragraph 21 above). Therefore, unlike residents of the Flemish and Walloon regions, these applicants are not required to modify their conduct on pain of administrative or criminal proceedings.

26. Moreover, Mr Guigui did not argue that the entry into force of the impugned decrees had in any way affected his observance of the Jewish religion or that his access to kosher meat was thereby affected as a resident of the Brussels-Capital Region. As to Mr Benizri, he relied on his status as a Belgian national and resident to argue generally and without substantiating his allegations that the impugned decrees had had repercussions throughout Belgium by significantly reducing the supply of kosher meat. However, he did not demonstrate how his personal situation as a resident of the Brussels-Capital Region had been affected.

27. The Court therefore finds that Mr Benizri and Mr Guigui have not established that they are members of a class of people who risk being directly affected by the impugned decrees, which are not applicable in the Brussels-Capital Region. The Court would point out that the mere fact that their capacity to take action before the Constitutional Court was not impugned in the domestic proceedings does not suffice to establish their victim status before the Court, as the notion of “victim” is interpreted autonomously in the Convention system (see, mutatis mutandis, Kalfagiannis and Prospert v. Greece (dec.), no. 74435/14, § 47, 9 June 2020). It follows from the foregoing considerations that the applicants Mr Benizri and Mr Guigui cannot claim to be victims of an infringement of their rights under Articles 9 and 14 of the Convention.

28. Accordingly, applications nos. 16871/22 and 17314/22 are incompatible ratione personae with the provisions of the Convention and must be dismissed pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

29. As to the other individual applicants (in applications nos. 16849/22, 16850/22, 16857/22, 16860/22, 16864/22, 16869/22, 16877/22, 16881/22, and Mr Batakli, Mr Chahbi and Mr Ugurlu in application no. 16760/22) who reside either in the Flemish Region or in the Walloon Region, the Court holds that their applications are compatible ratione personae with the provisions of the Convention.

30. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

31. The applicants submitted that the prohibition of the ritual slaughter of animals without prior stunning constituted an unjustified interference with their right to respect for freedom of religion, as guaranteed by Article 9 of the Convention, which provides:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

3. Admissibility

   1. Whether Article 9 of the Convention is applicable

4. The applicants complained, first, that the impugned decrees imposed a ban on the slaughter of animals in accordance with the precepts of their religion and, second, that it was difficult, if not impossible, for them to obtain meat from animals thus slaughtered.

5. The Court reiterates that freedom of religion as guaranteed in Article 9 of the Convention encompasses the freedom to manifest one’s belief alone and in private but also to practice it in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A, and Leyla Şahin v. Turkey [GC], no. 44774/98, § 105, ECHR 2005-XI).

6. The Court has previously held that the ritual slaughter of animals falls within the scope the right to manifest one’s religion as a matter of “observance” within the meaning of Article 9 of the Convention (see Cha’are Shalom Ve Tsedek, cited above, § 74). It has also held that dietary restrictions or rules may fall within the scope of religious practice (see Vartic v. Romania (no. 2), no. 14150/08, § 35, 17 December 2013, and Erlich and Kastro v. Romania, nos. 23735/16 and 23740/16, § 22, 9 June 2020). It follows that Article 9 of the Convention is applicable to the present case.

7. Conclusion as to admissibility

8. The Court notes that the complaint under Article 9 of the Convention is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

9. Merits

   1. The parties’ submissions

(a) The applicants

(i) Application no. 16760/22

68. The individual applicants in application no. 16760/22 are all of Muslim faith and the applicant associations are organisations purporting to represent Belgium’s Muslim communities as well as national and local religious authorities from Belgium’s Turkish and Moroccan Muslim communities. They alleged that Article 9 of the Convention protected their right to observe the rite of dhabihah. They strongly denied that stunning was but a detail that did not affect ritual slaughter. Moreover, it was not for the Government to determine what constituted a legitimate manifestation of religion. Furthermore, the requirement to stun the animals prior to slaughter interfered with the applicants’ right to manifest their religion, in particular by preventing compliance with dietary and religious rules during the Feast of Sacrifice. The present situation was therefore different from the situation in issue in Cha’are Shalom Ve Tsedek (cited above).

69. The applicants did not dispute that the impugned interference was prescribed by law but they submitted that it did not pursue a legitimate aim for the purposes of paragraph 2 of Article 9 of the Convention. In that connection, they argued that the true aim of the decrees in question was not to protect animal welfare but rather to extend the stunning obligation to Muslim ritual slaughter in a discriminatory manner. The regional legislatures had never examined in good faith how animal welfare might be improved at slaughter, in particular as concerned industrial meat production. Had the goal truly been animal welfare, other measures would have been taken.

70. In any event, the applicants pointed out that the Convention did not recognise animal welfare as a legitimate aim that might justify interference with the freedom to manifest one’s religion. It did not bestow any rights upon animals and its scope of application was limited to human beings. The question was therefore not one of weighing human rights against the interests of animals or of extending the protection of morals to encompass the protection of animal welfare.

71. Furthermore, the applicants submitted that the interference in question did not meet a pressing social need and was in any event unnecessary in a democratic society. They argued that this measure was not an appropriate means of achieving the alleged aim of protecting animal welfare and that other means were available that were less restrictive of freedom of religion. The scientific studies on which the parliamentary proceedings had been based contained inaccuracies, uncertainties and assumptions. The prior stunning of animals caused serious suffering as well and ritual slaughter concerned only a fraction of the total number of animals slaughtered in Belgium. Moreover, the applicants argued that States could by no means be afforded a wide margin of appreciation, as there was a broad consensus among the States Parties to the Convention to allow ritual slaughter without prior stunning. Lastly, they submitted that importing meat was not a solution.

(ii) Applications nos. 16849/22, 16850/22, 16857/22, 16860/22, 16864/22, 16869/22, 16877/22, 16881/22

72. The applicants in the eight applications mentioned above are all of Jewish faith. They alleged that the blanket ban on slaughter without stunning constituted an interference with their right to freedom of religion in that it prohibited the performance of a religious rite and thus prevented the observance of dietary precepts prescribed by the Jewish religion. The prohibition had significant effects on the exercise of religious freedom which could not be mitigated by the theoretical and uncertain possibility of obtaining meat from the Brussels-Capital Region or abroad. The reversibility of the stunning in question did not allow for a balance to be struck between freedom of religion and animal welfare, since any stunning of the animal meant that the resulting meat was not kosher.

73. The situation at issue was therefore different from the one in Cha’are Shalom Ve Tsedek (cited above), which had concerned the refusal to grant approval to an association to practice ritual slaughter. What had been at issue in that case was a regulation of ritual slaughter that did not deprive practising Jews of the ability to obtain meat that was compatible with religious prescriptions. The measures in issue in that case therefore differed in nature and scope from those in the present case.

74. Furthermore, the applicants argued that the interference pursued none of the legitimate aims listed in Article 9 § 2 of the Convention, since the justification for the prohibition of ritual slaughter without stunning was based solely on the protection of and respect for animal welfare. That ground, however, could not be linked to any of the aims pursued by the provision in question, since they were all directly or indirectly geared towards preserving the rights and interests of persons. To link the aim pursued to public morals would thus pervert the letter and spirit of the Convention and constitute a radical paradigm shift by asserting the primacy of the views of a segment of the population concerned about animal welfare to justify negating an essential aspect of the religious freedom of another part of the population.

75. Lastly, the applicants were of the view that the interference was neither justified nor proportionate. The Court’s scrutiny should be strict and rigorous in this context, as the impugned ban entailed an extremely serious interference with an essential aspect of freedom of religion. States could therefore not be afforded a wide margin of appreciation. Moreover, it was not established that the impugned measure was the one least damaging to the fundamental right for the purpose of achieving the aim pursued or that the shehitah caused the animals greater suffering, quite the contrary. The impugned ban disregarded the cultural and traditional specificities of a vulnerable group, which set a particularly troubling precedent. Furthermore, in the applicants’ view, the lack of consensus, even within the Belgian State, spoke in favour of giving less weight to the domestic policy-maker and called into question the soundness of the approach adopted in the impugned decrees.

(b) The respondent Government

76. The Government submitted that the impugned decrees did not constitute interference with the applicants’ freedom of religion. Referring to the Cha’are Shalom Ve Tsedek (cited above, § 82) judgment, they argued that the right to freedom of religion guaranteed by Article 9 of the Convention could not extend so far as to encompass the specific aspect of stunning in the context of ritual slaughter.

77. In the alternative, the Government submitted that, were the Court to find that there was an interference, such interference was in any event compatible with paragraph 2 of Article 9 of the Convention. The decrees in question pursued an objective of general interest, namely, to prohibit any avoidable animal suffering. They thus pursued a legitimate aim – the protection of animal welfare – which could be linked both to the protection of morals and to the protection of the rights and freedoms of those whose conception of life encompassed animal welfare. Referring to the parliamentary proceedings documenting a sociological study carried out in Belgium and to the virtually unanimous outcome of the votes in the parliaments in question, the Government emphasised the heightened sensitivity to animal welfare in contemporary society and the broad social consensus in favour of the decrees complained of. They inferred from this that although the Court had not yet recognised animal welfare as one of the permissible legitimate aims under paragraph 2 of Article 9 of the Convention there was nothing to prevent it from doing so, and such recognition would in any event not contradict the letter and spirit of that provision or constitute a decision incompatible with a more effective protection of human rights.

78. The Government further submitted that there was a reasonable relationship of proportionality between the measure complained of and the aim pursued. Referring to the scientific research and parliamentary proceedings conducted in this case, the Government alleged that the measure was apt to ensure animal welfare and was the one best suited to reducing the animal’s suffering at the time of killing. Serious harm to animal welfare could not be avoided by any other measures of lesser scope. The Government also denied the applicants’ allegation that the measures adopted for the purpose of improving animal welfare lacked consistency, listing other measures adopted by the regional legislatures. In this connection, they pointed out that these legislatures could not be criticised for acting within the limits of their powers.

79. Only eight member States of the EU permitted slaughter without prior stunning. There was therefore no broad consensus accepting ritual slaughter without stunning among the States Parties to the Convention, which spoke in favour of a wide margin of appreciation for States. The impugned measure was compatible with religious tolerance and pluralism in that it met a pressing social need and was proportionate to the aim pursued, especially considering that the decrees in question permitted the use of non-lethal, reversible stunning and allowed for the throat to be cut immediately after stunning.

80. Furthermore, the Government alleged that there were diverging views among those of Muslim or Jewish faith as to whether or not prior stunning which did not result in the animal’s death was compatible with the particular methods of slaughter prescribed by the religious rites of the Muslim and Jewish faiths. Lastly, the Government pointed out that the impugned measure did not entail the prohibition or restriction of trade in meat from animals slaughtered without prior stunning, in particular with the Brussels-Capital Region.

81. The third-party interveners

(a) The Government of Denmark

81. The Danish Government stated that stunning prior to ritual slaughter had been mandatory in Denmark since February 2014. In their view, the Court should follow the assessment made by the CJEU (see paragraphs 7-8 above), which was in line with the Court’s case-law, in order to guarantee the necessary consistency between the two systems. Moreover, the Danish Government submitted that the requirement of stunning prior to religious slaughter pursued the legitimate aims of protecting public health and order. Regard should also be had to the States’ margin of appreciation, in particular their aptitude to protect animal welfare, and to the limited scope of the prior stunning requirement. This requirement did not prevent the applicants from eating meat from animals slaughtered in accordance with the religious rules considered by them to be applicable. In view of the lack of consensus among the Contracting States on how to balance the aim of protecting animal welfare with the exercise of freedom of religion, the Court should give substantial weight to the decision-making process that had led to the domestic legislation in question and to the legislatures’ weighing-up of the interests at stake. In the Danish Government’s view, it followed from the above considerations that the requirement of stunning prior to ritual slaughter was justified in the light of legitimate aims and was proportionate in relation to them.

(b) The GAIA association

82. The GAIA association considered that the prohibition of ritual slaughter without stunning did not constitute interference with the applicants’ freedom of religion, since the measure complained of was of limited scope and did not prohibit the performance of any other aspects of the religious rite (positioning of the animal’s head, prayer, keeping the knife out of the animal’s sight, etc.). It submitted that the sole purpose of the measure was to prohibit needless suffering in order to preserve animal welfare, which was an objective and justified aim, and that it did not seek to discriminate against a community on the basis of any religious practice. The GAIA association alleged that access to halal meat was not a concern in Flanders and Wallonia and the applicants had not demonstrated that access to kosher meat had become more difficult after the entry into force of the impugned decrees. It further pointed to increasing awareness of the issue of animal welfare in society.

83. The Court’s assessment

(a) Whether there has been an interference

83. As the Government pointed out (see paragraph 76 above), in the Cha’are Shalom Ve Tsedek (cited above, §§ 82-83) judgment, the Court took the view that the right to freedom of religion guaranteed by Article 9 of the Convention did not extend to the right to take part in person in the performance of ritual slaughter and in the subsequent certification process, given that the applicant association and its members were not in practice deprived of the possibility of obtaining and eating meat considered by them to be compatible with religious prescriptions. It concluded from this that the refusal to grant approval to the applicant association did not constitute an interference with its freedom to manifest its religion.

84. However, the Court agrees with the applicants (see paragraphs 68 and 73 above) that the situation in the present case differs from the one in Cha’are Shalom Ve Tsedek (cited above). Whereas that case concerned a rule designed to regulate ritual slaughter by granting official approval to bodies authorised to slaughter animals, the effect of the measure complained of in the present case is to prohibit ritual slaughter unless the animal is stunned beforehand.

85. The Government submitted that, in so far as the decrees in question do not prohibit ritual slaughter as such but merely target a single aspect of the ritual act – the absence of prior stunning –, the applicants’ beliefs in this regard did not attain the necessary level of cogency and importance for an interference to be established (see paragraph 76 above).

86. In this connection, the Court reiterates that, as guaranteed by Article 9 of the Convention, the right to freedom of thought, conscience and religion denotes only those views that attain a certain level of cogency, seriousness, cohesion and importance. However, provided this condition is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 81, ECHR 2013, and S.A.S. v. France [GC], no. 43835/11, § 55, ECHR 2014). It is a matter of fact that the Court is ill-equipped to delve into discussion about the nature and importance of individual beliefs, for what one person holds as sacred may be absurd or anathema to another and no legal or logical argument can be invoked to challenge a believer’s assertion that a particular belief or practice is an important element of his or her religious duty (see Skugar and Others v. Russia (dec.), no. 40010/04, 3 December 2009).

87. It is therefore not for the Court to decide whether stunning prior to slaughter is in keeping with the dietary precepts of Muslim and Jewish believers. The fact that there may be internal debate or divergent views in this regard within the Muslim and Jewish religious communities, as alleged by the Government (see paragraph 80 above), cannot have the effect of depriving the applicants of the enjoyment of the rights guaranteed by Article 9 of the Convention (see, to similar effect, İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 134, 26 April 2016).

88. It will suffice for the Court to note that it is apparent from the parliamentary debates leading to the adoption of the two decrees in question that the absence of stunning prior to slaughter constitutes an aspect of the religious ritual which attains a certain level of cogency, seriousness, cohesion and importance, at least for certain believers – such as the applicants – of the Jewish and Muslim faiths (see, to similar effect, mutatis mutandis, S.A.S v. France, cited above, § 56).

89. In these circumstances, the Court is prepared to accept that there has been an interference with the applicants’ freedom of religion, as guaranteed by Article 9 of the Convention (see, to similar effect, paragraph 55 of the judgment of the CJEU of 17 December 2020 in Centraal Israëlitisch Consistorie van België and Others (hereinafter referred to as “the CJEU judgment”), C-336/19, EU:C:2020:1031, and the judgments of the Belgian Constitutional Court nos. 118/2021 and 117/2021, point B.18.3.).

(b) Whether the interference was justified

(i) Whether the interference was provided for by law

90. The Court notes that the interference is expressly provided for by legislation, namely, by section 15, as amended by the Flemish decree, in the Flemish Region, and, in the Walloon Region, by Article D.57 § 1 introduced in the Walloon decree (see paragraphs 16 and 19 above). The applicants did not dispute that these provisions satisfied the criteria of accessibility and foreseeability laid down in the Court’s case-law under Article 9 § 2 of the Convention. The Court sees no reason to find otherwise.

(ii) Whether the interference pursued a legitimate aim

91. The Government submitted that, for the purposes of Article 9 § 2 of the Convention, the aim of preventing any avoidable suffering at slaughter by animals intended for human consumption fell under the protection of morals and of the rights and freedoms of those who valued animal welfare as part of their conception of life (see paragraph 77 above). The Court notes that the Constitutional Court likewise appealed to these two legitimate aims in its examination (see point B.19.3 of the judgments of the Constitutional Court, cited above). The applicants contested that argument (see paragraphs 69 and 74 above).

92. The Court reiterates that, for it to be compatible with the Convention a limitation of the individual’s freedom to manifest his or her religion or beliefs must, in particular, pursue an aim that can be linked to one of those listed in this provision (see S.A.S. v. France, cited above, § 113). The enumeration of the exceptions to this freedom, as listed in Article 9 § 2, is exhaustive and their definition is restrictive (ibid.; see also Svyato-Mykhaylivska Parafiya v. Ukraine, no. 77703/01, § 132, 14 June 2007, and Nolan and K. v. Russia, no. 2512/04, § 73, 12 February 2009).

93. In the present case, the Court is called upon for the first time to rule on whether the protection of animal welfare can be linked to one of the aims referred to in paragraph 2 of Article 9. In these circumstances, having regard to the parties’ disagreement on this point (see paragraphs 69, 74 and 77 above), the question of the legitimacy of the aim pursued by the interference in question calls for careful analysis by the Court.

94. The Court notes at the outset that, contrary to EU law, under which animal welfare is an established objective of general interest (see paragraphs 35 and 37 above), the Convention does not seek to protect animal welfare as such. It should thus be noted that paragraph 2 of Article 9 of the Convention does not contain an explicit reference to the protection of animal welfare in the exhaustive list of legitimate aims capable of justifying interference with the freedom to manifest one’s religion.

95. However, the Court has acknowledged on a number of previous occasions that the protection of animals is a matter of general interest protected by Article 10 of the Convention (see PETA Deutschland v. Germany, no. 43481/09, § 47, 8 November 2012, and Tierbefreier e.V. v. Germany, no. 45192/09, § 59, 16 January 2014). Moreover, in Friend and Others v. the United Kingdom ((dec.), nos. 16072/06 and 27809/08, § 50, 24 November 2009), which concerned a ban on fox hunting, the Court took the view, in the light of Article 11 of the Convention, that such a ban pursued the legitimate aim of protecting morals, in the sense that it was designed to eliminate the hunting and killing of animals for sport in a manner which the legislature judged to cause suffering and to be morally and ethically objectionable. The Court has thus previously accepted that the prevention of animal suffering may justify interference with a right guaranteed by Article 11, in the interests of protecting morals.

96. In so far as the present case concerns Article 9 of the Convention and has arisen in a very different context, the Court would emphasise the following. Contrary to the applicants’ submissions (see paragraph 70 above), the protection of public morals, to which Article 9 § 2 refers, cannot be understood as seeking solely to protect human dignity in the sphere of inter-personal relations. In this connection, the Court observes that the Convention is not indifferent to the living environment of those it seeks to protect (see, in particular, and among other authorities, Mangouras v. Spain [GC], no. 12050/04, § 86, ECHR 2010, and Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007-V (extracts)), and in particular to animals, the protection of which has previously attracted the Court’s attention (see Friend and Others, cited above). The Convention cannot, therefore, be construed as promoting the absolute upholding of the rights and freedoms it enshrines, without regard to animal suffering, on the grounds that Article 1 of the Convention recognises rights and freedoms solely in respect of persons.

97. The Court would point out, moreover, that the concept of “morals” is inherently evolutive. That which might have been considered morally acceptable in a given era may cease to be so after a certain period of time (see, in a different context, Dudgeon v. the United Kingdom, 22 October 1981, § 60, Series A no. 45).

98. In this connection, the Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (for a case involving Article 9 of the Convention, see Bayatyan v. Armenia [GC], no. 23459/03, § 102, ECHR 2011). This “living instrument” doctrine concerns not only the rights and freedoms accorded to persons by the Convention but also the reasons justifying the limitations that might be imposed on them, in view of societal and legislative developments since the Convention was adopted in 1950 (see, to similar effect, paragraph 77 of the CJEU judgment, cited in paragraph 7 above, concerning the interpretation of the Charter).

99. In this connection, the Court takes note of the fact that, in the Constitutional Court’s view, the promotion of the protection and welfare of animals as sentient beings can be regarded as a moral value which is shared by many people in both the Flemish and Walloon regions (see point B.19.3. of the judgments of the Constitutional Court). This is attested, if need be, by the impugned decrees’ adoption by a very large majority of the members of the two legislative bodies in question (see paragraphs 26 and 29 above). The Court sees no reason to question these considerations, which are clearly expressed and reasoned in the preparatory documents for the two decrees in issue (see paragraphs 25 and 28 above).

100. Moreover, it can be seen from the comparative law material (see paragraphs 39‑40 above) that other States Parties to the Convention have enacted legislation to the same effect as the impugned decrees, thus confirming the growing importance of animal welfare considerations in a number of member States of the Council of Europe. Accordingly, the Court also sees no reason to contradict the CJEU (see paragraph 77 of the CJEU judgment, cited above) and the Constitutional Court (see point B.20.2. of the judgments of the Constitutional Court, cited above), both of which held that the protection of animal welfare is a moral value to which increasing importance is attached in contemporary democratic societies and that it should be taken into account in assessing restrictions on the outward manifestation of religious beliefs.

101. It follows from the foregoing considerations that the Court is entitled to take account of the growing importance attached to the protection of animal welfare, including when examining, as in the present case, the legitimacy of the aim pursued by a restriction on the freedom to manifest one’s religion.

102. It thus finds that the protection of animal welfare can be linked to the concept of “public morals”, the protection of which constitutes a legitimate aim within the meaning of paragraph 2 of Article 9 of the Convention.

103. Consequently, there is no need to ascertain whether, as the Constitutional Court held, the measure in question may also be regarded as seeking to protect the rights and freedoms of those whose conception of life encompasses animal welfare (see, to similar effect, mutatis mutandis, Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, § 272, 8 April 2021).

(iii) Whether the interference was necessary in a democratic society

(α) Applicable general principles

104. Under Article 9 § 2 of the Convention, any interference with the right to freedom of religion must be “necessary in a democratic society”. An instance of interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among many other authorities, Bayatyan, cited above, § 123; Fernández Martínez v. Spain [GC], no. 56030/07, § 124, ECHR 2014; and İzzettin Doğan and Others, cited above, § 105).

(β) Applicable margin of appreciation

105. The Court reiterates the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see, for example, Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005-IX). This especially so where questions concerning the relationship between the State and religions are at stake (see, mutatis mutandis, Cha’are Shalom Ve Tsedek, cited above, § 84; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996-V; and Leyla Şahin, § 109, and S.A.S. v. France, § 129, both cited above).

106. The Court observes, moreover, that the impugned ban contained in the two decrees in question was the result of a deliberate choice on the part of the regional legislatures, following a carefully considered parliamentary process. The Court notes that, in similar situations, it has had occasion to point out that it was faced with a “choice of society” and had to “exercise a degree of restraint in its review of Convention compliance, since such review [would] lead it to assess a balance that [had] been struck by means of a democratic process within the society in question” (see S.A.S. v. France, cited above, §§ 153-154; see also Belcacemi and Oussar v. Belgium, no. 37798/13, §§ 53-54, 11 July 2017, and Dakir v. Belgium, no. 4619/12, §§ 56-57, 11 July 2017).

107. In circumstances such as those of the present case, which, on the one hand, concern relations between the State and religions and, on the other, do not reflect a clear consensus within the member States but nevertheless reveal a gradual evolution in favour of greater protection of animal welfare (see the preparatory documents cited in paragraphs 25 and 28 above and the comparative-law material contained in paragraphs 39-40 above), the national authorities must certainly be afforded a margin of appreciation, which cannot be a narrow one. This margin cannot be unlimited, however, if freedom of religion, as enshrined in Article 9 of the Convention, is not to be stripped of its substance and effectiveness. The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see İzzettin Doğan and Others, cited above, § 114, and Osmanoğlu and Kocabaş v. Switzerland, no. 29086/12, § 93, 10 January 2017).

(γ) Whether the measures in question were necessary in a democratic society

108. In the present case, unlike EU law, under which animal welfare is an established objective of general interest (see paragraphs 35 and 37 above), the Convention does not seek to protect animal welfare as such. It is therefore not a matter, in the present case, of weighing up two rights of equal value under the Convention (see, mutatis mutandis, Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway, no. 45487/17, § 118, 10 June 2021; contrast Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, and Hurbain v. Belgium [GC], no. 57292/16, § 211, 4 July 2023, where rights of equal value under the Convention were in conflict). In fact, it is for the Court to assess whether the interference with the applicants’ freedom to manifest their religion is justified in principle and whether it is proportionate with regard to the protection of public morals, to which the protection of animal welfare can be linked, having regard to the margin of appreciation enjoyed by the national authorities in this area (see, to similar effect, Leyla Şahin, § 110, and S.A.S v. France, § 131, both cited above).

109. To that end, the Court will first focus on the quality of the parliamentary and judicial scrutiny of the impugned decrees in so far as they entailed an interference with freedom of religion. Thus, the Court has previously held that the quality of the parliamentary and judicial review of the necessity of a measure is of particular importance, in particular for determining the operation of the relevant margin of appreciation (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013, with further references).

110. Firstly, as to the quality of the parliamentary scrutiny, which is of particular importance when a general rule is in issue (see Animal Defenders International, cited above, §§ 108 and 113; M.A. v. Denmark [GC], no. 6697/18, § 148, 9 July 2021; and L.B. v. Hungary [GC], no. 36345/16, § 130, 9 March 2023), the Court notes that the decrees in question were adopted following a wide-ranging consultation with representatives of various religious groups, veterinary surgeons and animal welfare associations (see, in particular, the CJEU’s findings to this effect with regard to the Flemish decree in paragraph 79 of the CJEU judgment, cited above) and that considerable efforts were made by the federal, Flemish and Walloon legislatures, in turn, over a lengthy period, to determine how best to reconcile the aim of protecting animal welfare with respect for freedom of religion (see paragraphs 22-30 above). The regional legislatures sought to weigh up the competing rights and interests through a duly considered legislative process.

111. It is also apparent from the preparatory documents for the decrees in question (see paragraphs 25 and 28 above) that the decisions of the Flemish and Walloon legislatures were expressly reasoned in the light of the requirements of religious freedom, since the legislatures examined the impact of the measure on that freedom and carried out a lengthy proportionality assessment, in particular (contrast L.B. v. Hungary, cited above, §§ 137-138, and Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 79, ECHR 2005-IX).

112. Secondly, as regards judicial scrutiny, where the domestic courts have, in accordance with the principle of subsidiarity which governs the Convention, ruled on the case before them by providing sufficiently detailed reasons in the light of the principles set out in its case-law, the Court will require strong reasons to substitute its own assessment for that of the domestic courts (see M.A. v. Denmark, cited above, § 149; Halet v. Luxembourg [GC], no. 21884/18, § 161, 14 February 2023; and, for a case concerning Article 9 of the Convention, Jehovah’s Witnesses v. Finland, no. 31172/19, § 91, 9 May 2023).

113. In the present case, the Court observes that its own examination in the light of the Convention was preceded by a two-tier review. Faced with a novel issue concerning, in particular, the interpretation of EU law, the Constitutional Court requested a preliminary ruling from the CJEU in the case involving the Flemish decree (see paragraph 6 above). In this connection, the Court has had occasion to underscore the importance, for the protection of fundamental rights in the EU, of the judicial dialogue between the domestic courts and the CJEU (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 212, and Jehovah’s Witnesses, cited above, §§ 85-87).

114. In the present case, the CJEU examined the matter in dispute under paragraph 1 of Article 10 of the Charter, read also in the light of Article 9 of the Convention, finding that a reversible stunning process that could not result in the animal’s death was compatible with paragraph 1 of Article 10 of the Charter.

115. Following the CJEU judgment (see paragraphs 7-8 above), the Constitutional Court upheld the constitutionality of the two decrees (see paragraphs 9-12 above) on the basis of reasoning which, in the Court’s view, clearly cannot be regarded as superficial in the light of the requirements of Article 9 of the Convention.

116. In this connection, the Court can only note that both the CJEU and the Constitutional Court took full and detailed account of the requirements of Article 9, as interpreted by the Court, in their respective examinations. Such a two‑tier review is in keeping with the spirit of subsidiarity that underpins the Convention, the importance of which was reaffirmed in Protocol No. 15, which added an explicit reference to that principle in the Preamble to the Convention. Accordingly, the Court cannot disregard these pre-existing examinations in the review it is now called upon to perform in accordance with Article 19 of the Convention. It is true that the CJEU was able to rely on its judgment of 17 December 2020 concerning Article 13 of the TFEU, which established animal welfare as an objective of general interest recognised by the EU (see paragraphs 35 and 37 above), whereas that welfare is not guaranteed as such by the Convention (see paragraph 108 above). However, as the Court has already explained (see paragraphs 94‑102 above), the protection of animal welfare can be linked to public morals, within the meaning of Article 9 § 2 of the Convention, and can to that extent justify a restriction on the freedom to manifest one’s religion.

117. In this connection, the Court observes that the two decrees in question are based on a scientific consensus that stunning the animal prior to killing is the optimal means of reducing its suffering at the time of killing (see, to similar effect, the CJEU judgment, cited above, paragraph 72, and the judgments of the Belgian Constitutional Court, cited above, point B.21.1). It sees no serious reason to call this finding into question.

118. The Court has recently reiterated that in order to be considered proportionate, a measure must first be regarded as not limiting the individual’s rights under Article 9 beyond what is necessary to achieve the legitimate aim or aims pursued, which means ensuring that it or they cannot be achieved by any less intrusive or radical means (see 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], request no. P16-2023-001, Conseil d’État of Belgium, § 114, 14 December 2023, with further references). The Court has further held that, in such matters, the national authorities are afforded a margin of appreciation for the purposes of striking a fair balance between the various interests at stake (ibid.).

119. In the present case, the Court notes more specifically that the impugned decrees provide that, where animals are slaughtered in accordance with special methods required for religious rites, the stunning method applied must be reversible and cannot result in the animal’s death. On the basis of scientific studies and wide-ranging consultations with those concerned, the legislature, as can be seen from the parliamentary proceedings, concluded that no less radical measure could sufficiently achieve the objective of reducing harm to animal welfare at the time of killing (see paragraphs 25 and 28 above). Finding no serious evidence in the case file before it which might call that conclusion into question, the Court notes that the Flemish and Walloon legislatures thus sought a proportionate alternative to the prior stunning obligation, taking into consideration the right claimed by persons of the Muslim and Jewish faiths to manifest their religion in a context where growing importance was attached to the prevention of animal suffering in the Flemish and Walloon regions. They took care to adopt a measure which did not go beyond what was necessary to achieve the aim pursued.

120. It is not for the Court to determine whether this alternative satisfies the precepts of the religion to which the applicants adhere (see paragraph 87 above). However, it can be seen from the above, as the Court has already observed (see paragraphs 110-111 above), that the authorities concerned sought to weigh up and strike a fair balance between the rights and interests at stake (see Association for Solidarity with Jehovah’s Witnesses and Others v. Turkey, nos. 36915/10 and 8606/13, § 103, 24 May 2016). The Court therefore finds that the measure complained of falls within the margin of appreciation enjoyed by the national authorities in this area (see paragraphs 105-107 and 109 above).

121. Admittedly, the Brussels-Capital Region has not, at the date of adoption of the present judgment, abolished or limited the exemption provided for the ritual slaughter of animals (see paragraphs 15 and 31 above) and differs in this regard from the Flemish and Walloon regions. This consideration may cast doubt on the importance attached to animal welfare in Belgium which the Government emphasised before the Court. Be that as it may, this finding cannot in itself lead to the conclusion that the two decrees in question are incompatible with Article 9 of the Convention. Belgium is a federal State, as already noted above (see paragraph 13), and the Court has always respected the specific features of federalism, so long as they are compatible with the Convention (see Osmanoğlu and Kocabaş, cited above, § 99, and Anderlecht Christian Assembly of Jehovah’s Witnesses and Others v. Belgium, no. 20165/20, § 47, 5 April 2022). Consequently, the applicants cannot base their argument on the mere fact that the legislation in Brussels remains different from that passed by the Flemish and Walloon legislatures.

122. The Court would emphasise, if need be, that it is not called upon to determine whether the Convention requires the stunning of animals prior to slaughter but to ascertain in the present case whether, in providing for such a measure, the Flemish and Walloon legislatures were in breach of Article 9 of the Convention.

123. Lastly, as to the second part of the applicants’ complaint regarding the difficulty, if not impossibility, of obtaining meat that is in conformity with their religious beliefs, the Court notes that the Flemish and Walloon regions do not prohibit the consumption of meat from other regions or countries in which stunning prior to slaughter is not a legal requirement. Moreover, the applicants have not shown before the Court that access to meat slaughtered in accordance with their religious beliefs has become more difficult since the entry into force of the impugned decrees.

124. Having regard to all the foregoing considerations, the Court concludes that, in adopting the decrees which had the effect of prohibiting the slaughter of animals without prior stunning in the Flemish and Walloon regions, while requiring reversible stunning for ritual slaughter, the domestic authorities did not overstep the margin of appreciation they enjoyed in the present case. They took a measure which was justified in principle and can be regarded as proportionate to the aim pursued, namely, the protection of animal welfare as an element of “public morals”.

125. Accordingly, there has been no violation of Article 9 of the Convention.

126. ALLEGED VIOLATION OF ARTICLE 14 OF THE cONVENTION, READ IN CONJUNCTION WITH ARTICLE 9

127. The applicants further complained that they had been discriminated against in the exercise of their freedom of religion by reason of the impugned decrees. They relied on Article 14 of the Convention, in conjunction with Article 9, the former provision reading as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

1. Admissibility

   1. Whether Article 14 of the Convention is applicable

2. The Government submitted that Article 14 of the Convention was not applicable since the decrees in issue did not constitute interference with freedom of religion or, at the very least, an infringement of that freedom. They pointed out that the impugned measures concerned stunning, not ritual sacrifice as such.

3. The applicants contested this view.

4. The Court reiterates that, for Article 14 to be applicable, it is necessary, but also sufficient, for the facts of the case to fall within the wider ambit of one or more of the Convention Articles (see Beeler v. Switzerland [GC], no. 78630/12, § 48, 11 October 2022). Such is the case here, since the Court has recognised above that Article 9 of the Convention is applicable and, moreover, has accepted that the measures complained of interfered with the rights protected under that provision (see paragraph 89 above). The Government’s preliminary objection in this regard must therefore be dismissed.

5. Allegation of discrimination on the basis of a difference in treatment between ritual slaughter and pest control

6. In their additional observations and submissions on just satisfaction, the Government submitted that the allegation of discrimination based on a difference in treatment between ritual slaughter and pest control, as put forward by the applicants in application no. 16760/22, should be declared inadmissible in that it had been made by the applicants for the first time in their observations in reply to those of the Government.

7. The Court notes that the applicants in application no. 16760/22 complained for the first time, in their observations in reply to those of the Government dated 20 January 2023, that they had been discriminated against on account of an unjustified difference in treatment between ritual slaughter and pest control, the latter being exempt from the prior stunning obligation (see paragraphs 16 and 19 above). This complaint was not raised by them on the application form. It is a new complaint, based on different facts from those set out in the initial application (on the concept of “complaint”, see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 109-122, 20 March 2018, and Fu Quan, s.r.o. v. the Czech Republic [GC], no. 24827/14, § 137, 1 June 2023). Since it was first raised by the applicants on 20 January 2023, whereas the impugned judgments of the Constitutional Court were delivered on 30 September 2021, this complaint is out of time and must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

8. Conclusion as to admissibility

9. The Court notes, moreover, that the remainder of the complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

10. Merits

    1. The parties’ submissions

(a) The applicants

(i) Application no. 16760/22

133. The applicants submitted that the impugned measures constituted direct or, at the very least, indirect discrimination for two reasons: firstly, on the grounds that the legislation in question exempted hunting and fishing and, secondly, because it forced Muslims to eat imported meat, whereas the great majority of consumers were able to eat fresh, locally sourced meat.

134. Regarding hunting and fishing, the applicants explained that these activities were similar to ritual slaughter from an animal welfare perspective. Therefore, treating these situations differently for no objective reason amounted to discrimination. Moreover, the difference in treatment was based solely on religion: the measures targeted the Muslim community and the Feast of the Sacrifice in particular. Yet unlike hunting and fishing, the practice of a religious rite such as ritual slaughter was protected by the Convention. The Government ought therefore to have adduced weightier reasons for failing to exempt ritual slaughter from the stunning requirement. In the applicants’ view, the Government could not on the one hand accept to disregard animal welfare in the name of practical considerations relating to hunting while on the other attaching greater importance to animal welfare than to the right to observe one’s religion.

135. Regarding the difference in treatment, on the ground of religion, between Muslim consumers of meat and other meat-eaters as a result of the former’s having to import meat from other countries in which ritual slaughter was authorised, the applicants complained that this made halal meat scarcer and therefore more expensive. Moreover, it forced them to accept the interpretation of the requirements of the dhabihah in the country of export without being able to ensure that they were complied with.

(ii) Applications nos. 16849/22, 16850/22, 16857/22, 16860/22, 16864/22, 16869/22, 16877/22, 16881/22

136. Firstly, the applicants, as practising Jews, complained that they were treated differently from anglers and hunters even though they were in the same position in the light of aim pursued by the measure in question, which was to preserve animal welfare. The interference resulting from the impugned ban, however, was far more drastic for persons of Jewish faith – in that it affected the enjoyment of an essential aspect of freedom of religion – than it was for hunters or anglers whose hobbies did not fall directly within the purview of a Convention right but who nevertheless had the benefit of an exemption from the prior stunning obligation.

137. Secondly, they were also discriminated against as a result of the blanket application of the impugned ban, without distinguishing the situation faced by practising Jews, despite the fact that the latter were a distinct in relation to both the general population and practising Muslims, since only practising Jews were required to observe the shehita, which was stricter than the dietary requirements of Islam.

(b) The respondent Government

138. Referring to the judgment of the Constitutional Court, the Government argued that Jews and Muslims were not in fundamentally different situations, such that their identical treatment could not be in breach of the principle of non-discrimination. As to Jews and Muslims in relation to the general population, the Government submitted that, contrary to the applicants’ allegations, Jewish and Muslim believers were treated differently from the general population. The impugned measures provided for an alternative stunning process where killing was subject to special methods of slaughter prescribed by religious rites.

139. As to the alleged difference in treatment between Jewish and Muslim believers, on the one hand, and anglers and hunters, on the other, the Government submitted that the exemption of hunting and recreational fishing from the scope of the regulation in question was justified by the fact that, by their very nature, hunting and recreational fishing could not technically be practiced on animals that had been stunned beforehand. These activities were carried out in a separate context, where the conditions of killing were very different from those employed for farmed animals and were the subject of special legislation. Moreover, the exemption of these activities from the obligation to stun the animal was also entailed by EU Regulation no. 1099/2009 (see paragraph 38 above). Therefore, the situation of hunters and anglers was not similar to that of Jewish and Muslim believers.

140. In conclusion, the Government emphasised that there was no form of exclusion at work in the impugned provisions but rather the will to create the conditions for living together harmoniously. Moreover, the applicants were not required to give up all forms of ritual slaughter but only to adapt one aspect thereof so that the rite could carry on in line with the growing sensitivity to animal welfare in society.

141. The third-party interveners

(a) The Danish Government

141. The Danish Government pointed out that, in Denmark, the prohibition of slaughter without prior stunning applied to all forms of slaughter, except in the case of hunting and fishing, along with slaughter during cultural and sports events. Referring to the CJEU judgment (see paragraphs 7-8 above), which they urged the Court to follow, the Danish Government submitted that the situations to which the applicants referred were not similar and could therefore be treated differently. Even assuming the situations were similar, the difference in treatment would in any event fall within the margin of appreciation enjoyed by the Contracting States, having due regard to its limited scope, which did not prevent the applicants from eating meat from animals slaughtered in accordance with their religious beliefs. The difference in treatment was thus objectively and reasonably justified.

(b) The GAIA association

142. The GAIA association submitted that ritual slaughter was a different situation from the activities of hunting and fishing. If they were not to be rendered meaningless, these activities could not be practised on animals that had been stunned beforehand. Moreover, GAIA argued that animals killed in slaughterhouses for human consumption were not res nullius but were “entrusted to the care of mankind” and, for that reason, public morals and ethics required that avoidable suffering be prohibited.

143. The Court’s assessment

(a) Applicable general principles

143. In the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations. However, only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. Furthermore, not every difference in treatment will amount to a violation of Article 14. A difference of treatment based on a prohibited ground is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Savickis and Others v. Latvia [GC], no. 49270/11, § 181, 9 June 2022).

144. The requirement to demonstrate an analogous position does not mean that the comparator groups have to be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017). The elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question (ibid., § 121).

145. Moreover, a failure to make a distinction in the way in which situations which are essentially different are treated may also constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII, and Škorjanec v. Croatia, no. 25536/14, § 53, 28 March 2017 (extracts)).

(b) Application to the present case

(i) The applicants’ position as practising Jews and Muslims compared with that of hunters and anglers

146. The applicants complained that they were treated differently from hunters and anglers, without objective justification, in so far as the latter were excluded from the scope of the legislation in question and were not required to stun animals before killing them, even though their activities also had an impact on animal welfare.

147. The Court observes at the outset that it is not its task to rule on the compatibility of hunting and fishing with animal welfare, a matter which goes beyond the scope of the present case. Secondly, even assuming that the difference in treatment complained of was based on a ground of discrimination prohibited by Article 14, the applicants have not shown that they are in an analogous or relevantly similar situation to hunters and anglers. The situation of practising Jews and Muslims who wish to consume meat resulting from ritual slaughter differs from that of hunters and anglers who kill animals. Moreover, the conditions of killing are significantly different in either case. As noted by the CJEU (see paragraphs 91-93 of the judgment cited in paragraphs 7-8 above), since ritual slaughter is performed on farmed animals, their killing takes place in a separate context from that of the wild animals slaughtered in the context of hunting and recreational fishing. The same applies to the fishing of farmed fish, which takes place in an aquatic environment that is fundamentally different from that of slaughterhouses. Given that the applicants are not in an analogous or relevantly similar situation to that of hunters and anglers, it is not necessary to examine whether there is an objective and reasonable justification for the difference in treatment complained of (see, for example, Fábián, cited above, §§ 133-34).

(ii) The applicants’ situation as practising Jews and Muslims compared with that of the general population

148. All the applicants also complained that they were treated no differently from the general population, who did not adhere to religious dietary precepts.

149. Contrary to the applicants’ allegations, the Court notes, as the Government did (see paragraph 138 above), that practising Jews and Muslims are treated differently from individuals who do not adhere to religious dietary precepts. Where killing is subject to special methods of slaughter prescribed by religious rites, the impugned decrees specifically provide for an alternative stunning process: they provide that stunning should be reversible and non-lethal in such cases (see paragraphs 16 and 19 above). There is therefore no lack of distinction, in the present case, in the manner in which different situations are treated.

150. Moreover, in so far as the applicants’ arguments in fact amounted to maintaining that the prior stunning obligation infringed their freedom of religion, the Court has already addressed those arguments and found that there has been no violation of Article 9 of the Convention (see paragraphs 83-125 above).

(iii) The situation of practicing Jews among the applicants compared with that of practising Muslims

151. Lastly, as to the situation of practising Jews compared with that of practising Muslims (a complaint raised in applications nos. 16849/22, 16850/22, 16857/22, 16860/22, 16864/22, 16869/22, 16877/22, 16881/22), it is not for the Court, as an international Court, to rule on dietary precepts in religious matters, especially when they are the subject of debate (see paragraph 87 above). In any event, like the Constitutional Court (see point B.44.2 of the judgments of the Constitutional Court), the Court is of the view that the mere fact that the dietary precepts of the Jewish religious community differ in nature from those of the Muslim religious community is not sufficient for it to find that Jewish and Muslim believers are in relevantly different situations in relation to the impugned measure with regard to freedom of religion. Since the situations complained of cannot be regarded as relevantly different, there is no need to examine whether there was an objective and reasonable justification for the alleged lack of differentiation.

(iv) Conclusion as to the complaints alleging a violation of Article 14 of the Convention

152. In the light of the foregoing considerations, there has been no violation of Article 14 of the Convention, read in conjunction with Article 9.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Dismisses the preliminary objection concerning the victim status of the applicant organisations in application no. 16760/22 and declares the application admissible, with the exception of the complaint concerning a difference in treatment between ritual slaughter and pest control, which it declares inadmissible;
3. Declares applications nos. 16849/22, 16850/22, 16857/22, 16860/22, 16864/22, 16869/22, 16877/22, 16881/22 admissible and applications nos. 16871/22 and 17314/22 inadmissible;
4. Holds that there has been no violation of Article 9 of the Convention;
5. Holds that there has been no violation of Article 14 of the Convention, read in conjunction with Article 9.

Done in French, and notified in writing on 13 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Arnfinn Bårdsen
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge Koskelo, joined by Judge Kūris;
(b) concurring opinion of Judge Yüksel.

A.B.
H.B.

CONCURRING OPINION OF JUDGE KOSKELO,

JOINED BY JUDGE KŪRIS

1. I am in full agreement with the present judgment, except for one point in the reasoning, which is not decisive in this case but concerns a matter of general importance.

2. The passage at issue is contained in paragraph 118 of the judgment, where it is suggested that a measure cannot satisfy the test of proportionality under the Convention, in this case under Article 9 § 2, unless the legitimate aim pursued cannot be achieved by less restrictive or less intrusive means. That statement is problematic because it clearly contradicts the position taken by the Court in its case-law, including in a series of recent judgments by the Grand Chamber. It is also inconsistent with the key concepts of margin of appreciation and subsidiarity, particularly in the context of legislative measures.

3. In the case of Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, 22 April 2013), which concerned legislative interference with freedom of expression under Article 10 of the Convention, the Court stated as follows (§ 110):

“The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the State could prove that, without the prohibition, the legitimate aim would not be achieved. Rather, the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it (James and Others v. the United Kingdom, § 51; Mellacher and Others v. Austria, § 53; and Evans v. the United Kingdom [GC], § 91, all cited above).”

Accordingly, the key point of reference for the Court’s analysis is whether the relevant margin was exceeded, and not whether a less restrictive policy could have been chosen.

4. Similarly, in the case of Vavřička and Others v. the Czech Republic ([GC], nos. 47621/13 and 5 others, 8 April 2021), which concerned compulsory vaccination and thus legislative interference with rights enshrined in Article 8 of the Convention, the Court expressly noted as follows, by way of clarification (§ 310):

“[U]ltimately, the issue to be determined is not whether a different, less prescriptive policy might have been adopted, as has been done in some other European States. Rather, it is whether, in striking the particular balance that they did, the Czech authorities remained within their wide margin of appreciation in this area. It is the Court’s conclusion that they did not exceed their margin of appreciation and so the impugned measures can be regarded as being ‘necessary in a democratic society’.”

Thus, the Court made it clear that the term “necessary”, as employed in Convention provisions such as Article 8 § 2, does not entail that the Court’s assessment of whether the requirements of proportionality have been met involves a consideration of the availability of less restrictive options. Instead, the focus of the assessment depends on the scope of the margin to be afforded to the domestic authorities in the context in question.

5. Most recently, in the case of L.B. v. Hungary ([GC], no. 36345/16, §126, 9 March 2023), also concerning an interference with rights protected under Article 8 – this time in the field of data protection, resulting from the application of mandatory domestic legislation – the Court, citing Animal Defenders International, as above, again stated that “the central question as regards such measures is not whether less restrictive rules should have been adopted or, indeed, whether the State could prove that, without the impugned measure, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it”. Moreover, it repeated, and thus emphasised, that position by stating that “the central question is not whether less restrictive rules should have been adopted, but whether the legislature acted within the margin of appreciation afforded to it in adopting the general measure and striking the balance it did” (§ 130).

6. Further in the same vein, one can mention the case of Gaughran v. the United Kingdom (no. 45245/15, § 95, 13 February 2020), where the Court, citing Animal Defenders International, as above, underlined that “the test of proportionality is not that another less restrictive regime could be imposed. The core issue is whether, in adopting the measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it”.

7. These statements in the Court’s case-law represent a clear and coherent position, which is consistent with the doctrine of the margin of appreciation and with the principle of subsidiarity which it reflects. Indeed, the very concept of a margin the scope of which varies depending on the particular context, and with it the substantive aspect of subsidiarity, would be seriously undermined or undone if the Court were to adopt as a general principle an approach according to which no measure could meet the requirements of proportionality unless the Court is satisfied, on the evidence to be submitted by the respondent State, that no less restrictive or intrusive measure could achieve the legitimate aim pursued by a given legislative policy. While such an assessment may be justified where the margin of appreciation is narrow, it cannot be relied on as a standard of general application, which would amount to setting aside any margin of appreciation for the domestic authorities.

8. Among the examples from the case-law cited in support of the opposite view figure judgments such as those in Glor v. Switzerland (no. 13444/04, § 94, ECHR 2009), Association Rhino and Others v. Switzerland (no. 48848/07, § 65, 11 October 2011), and Biblical Centre of the Chuvash Republic v. Russia (no. 33203/08, § 58, 12 June 2014). The first and third of these Chamber judgments are also cited in paragraph 114 of the Advisory Opinion relied on in paragraph 118 of the present judgment in support of the proposition made therein.

9. It is important to note, however, that in Glor (cited above), the Court’s assessment related to an allegation of discrimination in a context where it held that the margin of appreciation available to the State was “considerably reduced” (§ 84). In Association Rhino and Others (cited above), the Court did not expressly address the question of the scope of the margin of appreciation afforded to the State in the circumstances, but it should not be overlooked that the complaint in that case, raised under Article 11 of the Convention, arose from the dissolution of the applicant association. Similarly, the complaint in Biblical Centre of the Chuvash Republic (cited above), raised under Article 9, concerned the dissolution of a religious community. In other words, the subject matter in the latter two cases concerned very drastic and severe measures affecting the core of the right protected under the provision in question. By contrast, if applied in general terms, the position expressed in those judgments would not be reconcilable with the notion of a margin of appreciation, nor with the clearly articulated case-law cited in paragraphs 3-6 above.

10. In the present case, the Court expressly acknowledges that the margin of appreciation to be afforded to the respondent State cannot be a narrow one (see paragraph 107 of the judgment). There is no discernible reason why the approach to proportionality in the context of Article 9 should be different, and stricter – irrespective of the scope of the margin – than in the context of the other qualified rights, such as Articles 8 or 10. In my view, it is therefore not consistent with the Court’s case-law to suggest, in the circumstances of the present case, that the requirement that there be “no less restrictive measure” would or should constitute an integral part of the proportionality test to be applied.

11. It is of course an entirely separate matter that, where the domestic authorities, whether on the grounds of domestic law or policy, have conducted their own assessment in such a way as to examine alternative measures and determine whether less restrictive or intrusive measures could satisfy the legitimate aims pursued, the demonstration of such an analysis is likely to make it easier for the Court to conclude that the respondent State has indeed remained within its margin of appreciation. The present case can be seen in that light. Accordingly, I have not had any serious difficulty agreeing with the reasons and conclusions in this case, apart from the general point of principle discussed above.

[Judge Kūris, while fully supporting Judge Koskelo’s opinion, maintains his objections to the Court’s self-restriction to a process-based review, as expounded in his concurring opinion in L.B. v. Hungary (cited in paragraph 5).]

CONCURRING OPINION OF JUDGE YÜKSEL

1. As regards the applicant’s complaint under Article 9 of the Convention, I concur with the finding that, in the particular circumstances of the present case, there has not been a violation of that Article. However, I still have some remarks on the reasoning and approach adopted in the judgment, for the reasons set out below.

2. The case concerns decrees under Belgian domestic law requiring the prior stunning of animals before slaughter in pursuit of animal welfare. The applicants, being of the Muslim and Jewish faiths, complained that such prior stunning would prevent them from carrying out ritual slaughter in accordance with their religious precepts, amounting to an interference and thus a violation of their freedom of religion under Article 9 of the Convention (see paragraph 42 of the judgment). The crux of the matter comes down to two questions: (i) whether considerations of animal welfare can constitute a legitimate aim for the purposes of Article 9 § 2 of the Convention and (ii) whether, as a matter of fact, the impugned measure did not go beyond what was necessary in a democratic society.

3. As regards the legitimacy of the aim pursued, in the light of the judgment’s acknowledgment of the Convention as a living instrument, capable of adapting to evolving societal ideas and morality, and owing to the growing importance attached to the protection of animal welfare (see paragraphs 98 and 100 of the judgment), I agree that the Convention can be interpreted as encompassing animal welfare as a legitimate aim for the purposes of Article 9 § 2.

4. It appears that the CJEU and the Constitutional Court concentrated their assessment on determining whether the contested decrees constituted the optimal or least radical measures for achieving the stated aim (see paragraph 72 of the CJEU judgment, as cited in paragraph 7 of the judgment, and point B.21.3 of the Constitutional Court judgment, as cited in paragraph 10 of the judgment; see also paragraph 115 of the judgment). Given that animal welfare has a basis in EU law under Article 13 of the TFEU and Regulation No. 1099/2009, this approach is perhaps unsurprising. By contrast, animal welfare lacks an explicit legal basis in the Convention, necessitating a differently focused proportionality assessment.

5. As regards the impugned measure, for the Court then, in accordance with the principle of subsidiarity and following our case-law, the central question is not whether less restrictive rules should have been adopted, but whether the legislature acted within the margin of appreciation afforded to it in adopting the general measure and striking the balance it did (see, in a different context, L.B. v. Hungary [GC], no. 36345/16, § 130, 9 March 2023). Referring also to the opinion of my colleague, Judge Koskelo, this question is distinct from the judgment’s assertion that the Court is required to ensure that the legitimate aim could not be accomplished through any less intrusive means (see paragraph 118 of the judgment). Rather, the Court must assess the legislative choices which lay behind the impugned interference and whether the legislature weighed up the competing interests at stake, which includes an examination of the quality of the parliamentary and judicial review of the necessity of the measure (see, in a different context, L.B. v. Hungary, cited above, § 130; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, 22 April 2013; and M.A. v. Denmark [GC], no. 6697/18, § 148, 9 July 2021; see also paragraph 109 of the judgment).

6. In light of the above, it is my concern that what is presented as the central question in this judgment is whether or not the impugned measure was the least prejudicial to the applicants’ Article 9 rights. It is stated in paragraph 118 that to consider a measure proportionate presupposes that it is the least intrusive or radical measure to achieve the stated aim. This naturally frames the proportionality assessment in this judgment around the least restrictive/necessity aspect. This is also confirmed in paragraph 119 of the judgment which finds the impugned measure to be the least radical means to achieve the stated aim.

7. I am concerned that this approach seems to venture into determining which aspects of ritual slaughter can or cannot be dispensed with, considering that the question as to whether prior stunning is permissible under Islamic or Jewish ritual slaughter is disputed (see paragraph 6.2 of the draft decree submitted to the Walloon parliament (Parliamentary Documents, Walloon Parliament, 2016-2017, No. 781/1), as cited in paragraph 28 of the judgment). In so doing, the Court may be seen to be ruling on matters that should be strictly left to the discretion of believers and religious scholars; namely, what process of ritual slaughter is halal or kosher “enough”. To take a position on this matter would be to contradict the established case law principle that “it is not the Court’s task to evaluate the legitimacy of religious claims or to question the validity or relative merits of interpretation of particular aspects of beliefs or practices” (see Abdullah Yalçın v. Turkey (No. 2), no. 34417/10, § 27, 14 June 2022). It would also go against the Court’s own acknowledgment that it is not for the Strasbourg Court to decide whether the stunning prescribed by the impugned legislation does or does not conform to religious precepts (see paragraph 120 of the judgment).

8. Against this background, it is my view that the proportionality assessment of the impugned legislation should focus on whether the domestic authorities struck a fair balance between the stated aim, on the one hand, and the applicants’ freedom of religion, on the other hand. While the judgment does, very briefly, refer to a fair balance (see paragraph 120 of the judgment), I believe that it is still too focused on whether or not the prescribed stunning was the least restrictive measure for the purpose of achieving the stated aim.

9. The Court has continuously stressed the importance of a balancing exercise when assessing the proportionality of an interference with a Convention right in pursuit of a legitimate aim. In this sense, according to our case-law arising in similar contexts, an interference must strike a fair balance between competing rights and interests (see, for example, Abdullah Yalçın (No. 2), cited above § 30; see also, Jakóbski v. Poland, no. 18429/06, § 50, 7 December 2010, and Korostelev v. Russia, no. 29290/10, § 48, 12 May 2020).

10. In this connection, while I can take the view that the domestic authorities did strike a fair balance between the right of the applicants to manifest a religious belief and the protection of public morals, whilst acting within their margin of appreciation (see paragraphs 118 and 123 of the judgment), I would emphasise the need for a more robust engagement with the “balancing exercise” conducted by the domestic authorities. I believe that it is this exercise that should have marked the beginning and been the focal point of the Court’s proportionality assessment in the present case, in line with the Court’s established case-law.

APPENDIX

List of cases:

No.| Application no.| Case name| Lodged on| Applicant
Year of registration or birth
Registered office or place of residence
Country of registration or nationality| Represented by
---|---|---|---|---|---
1.| 16760/22| Executief van de Moslims van België and Othersv. Belgium| 28/03/2022| EXECUTIEF VAN DE MOSLIMS VAN BELGIË
2008
Brussels
Belgium

COÖRDINATIERAAD VAN DE ISLAMITISCHE INSTELLINGEN VAN BELGIË
2008
Brussels
Belgium

INTERNATIONALE VERENIGING DIYANET VAN BELGIË
1982
Saint-Josse-ten-Noode
Belgium
ISLAMITISCHE FEDERATIE VAN BELGIË
1986
Schaerbeek
Belgium

RASSEMBLEMENT DES MUSULMANS DE BELGIQUE
2008
Brussels
Belgium
UNIE VAN MOSKEEËN EN ISLAMITISCHE VERENIGINGEN VAN LIMBURG
2004
Maaseik
Belgium

UNION DES MOSQUÉES DE LA PROVINCE DE LIÈGE
2004
Liège
Belgium

Hasan BATAKLI
1967
Herstal
Belgian

Tassar CHAHBI
1966
Maaseik
Belgian

Semsettin UGURLU
1962
Quaregnon
Belgian| Joos ROETS
2.| 16849/22| Gurnicky v. Belgium| 30/03/2022| Jacques GURNICKY
1957
Nalinnes
Belgian| Patrice SPINOSI
3.| 16850/22| Gluckman v. Belgium| 30/03/2022| Samuel GLUCKMAN
1966
Antwerp
Belgian| Patrice SPINOSI
4.| 16857/22| Moskovits v. Belgium| 30/03/2022| Nelly MOSKOVITS
1968
Antwerp
Belgian| Patrice SPINOSI
5.| 16860/22| Sternv. Belgium| 30/03/2022| Joseph STERN
1974
Antwerp
Belgian| Patrice SPINOSI
6.| 16864/22| Sobelv. Belgium| 30/03/2022| Mindel SOBEL
1993
Antwerp
Belgian| Patrice SPINOSI
7.| 16869/22| Gutfreund v. Belgium| 30/03/2022| Alain GUTFREUND
1957
Antwerp
Belgian| Patrice SPINOSI
8.| 16871/22| Guiguiv. Belgium| 30/03/2022| Albert GUIGUI
1944
Brussels
Belgian| Patrice SPINOSI
9.| 16877/22| Gruzman v. Belgium| 30/03/2022| Yakov GRUZMAN
1957
Antwerp
Belgian| Patrice SPINOSI
10.| 16881/22| Perlv. Belgium| 30/03/2022| Maurice PERL
1981
Antwerp
Belgian| Patrice SPINOSI
11.| 17314/22| Benizriv. Belgium| 30/03/2022| Yohan-Avner BENIZRI
1982
Brussels
Belgian| Jonathan WALTUCH