Animal welfare and the evolution of public morality – Requirement to stun animals prior to ritual slaughter is Convention-proof

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Despite its name, the European Convention on Human Rights (ECHR) also protects non-human beings. On several occasions, the European Court of Human Rights (ECtHR) has recognized that the protection of animals constitutes ‘a matter of general interest’ guaranteed by Article 10 (freedom of expression) (ECtHR, 8 November 2012, PETA Deutschland v Germany, para 47; 16 January 2014, Tierbefreier E.V. v Germany, para 59). Moreover, in a case on fox hunting, the Court has accepted, in paragraph 50, that the prevention of animal suffering may – on the grounds of protecting morals – justify interference with Article 11 (freedom of association, in this case, the applicant’s right to assemble with other huntsmen). Recently, and for the first time, the Court presented a similar reasoning regarding the freedom of religion. In a case on ritual slaughter (13 February 2024), the Court accepted in a unanimous judgment that the protection of animal welfare can be linked to ‘public morality’, which constitutes a legitimate aim for which the state might justifiably restrict Article 9 ECHR (freedom of religion). In this case, the Court accepted that it was consistent with the Convention for states to legislate that animals should be stunned before being ritually slaughtered.

At issue in this case were two Belgian decrees (i.e., national regulations), one by the Flemish Region in July 2017 and the other by the Walloon Region in October 2018. Both decrees prohibited the slaughter of animals without prior stunning. At the same time, and this is an important new element, they provided for reversible stunning (which enables bringing the animals back to conscience within five minutes after the stunning took place) in cases of ritual slaughter. In 2018 and 2019 the applicants, organisations representing Muslims in Belgium and Belgian nationals of the Muslim and Jewish faiths, lodged an application with the Constitutional Court to set aside those decrees. That Court made preliminary references to the Court of Justice of the European Union (CJEU) in the case of the Flemish Decree. Sitting as a Grand Chamber, the CJEU found in its judgment of 17 December 2020, Centraal Israëlitisch Consistorie van België and others, C-336/19, that a reversible non-lethal stunning process was compatible with Article 10(1) of the EU Charter of Fundamental Rights (freedom of thought, conscience and religion). In September 2021 the Belgian Constitutional Court, in two judgments, dismissed the applicants’ appeals against the decrees. Subsequently, they brought their case before the ECtHR. While according to regular slaughter prescriptions (Article 4(4) of Regulation n° 1099/2009 on the protection of animals at the time of killing), animals must be stunned before being killed, in the case of religious slaughter, the religious requirement is that the animals must not be stunned before being slaughtered. However, scientific studies have demonstrated that un-stunned ritual slaughter according to the Jewish and Islamic tradition causes many problems for the animals, such as stress, pain and suffering in advance of and during slaughtering. The latter was the very reason for the Belgian decrees: to mitigate the suffering of animals during ritual slaughter.

Animal welfare and public morality

It was the first time that the ECtHR had to rule on the question whether the protection of animal welfare can be linked to public morality as one of the legitimate aims in the second paragraph of Article 9 ECHR (para 92). In line with previous case law, the Court observes about the protection of public morals that it: ‘cannot be understood as referring solely to the protection of human dignity in relations between individuals.’ […]. ‘Accordingly, the Convention cannot be interpreted as promoting the absolute enjoyment of the rights and freedoms which it enshrines without regard to animal suffering […]’ (para 95, and cases cited therein; our own English translations, here and hereafter). So, protecting animals from suffering may be incorporated into the Convention’s protections.

Moreover, the Court observes that the concept of ‘morality’ is ‘inherently evolving’ and the Convention is ‘a living instrument that must be interpreted in the light of present-day conditions and the concepts prevailing in democratic States today’ (para 97). For the latter, the Court refers to the fact that many people in the Flemish and Walloon Regions regard promoting the protection and welfare of animals as sentient beings as a moral value (para 98). Animal welfare is increasingly taken into account in several Council of Europe member States, while the CJEU regards this as an important ethical value of contemporary societies (para 99). Therefore, the Court concludes that: ‘[…] the protection of animal welfare can be linked to the concept of ‘public morals’, which constitutes a legitimate aim within the meaning of paragraph 2 of Article 9 of the Convention’ (para 101). Thus, animal welfare, as part of a growing public morality, may be taken into account to a greater extent in the context of ritual slaughter.

Subsequently, the Court considers a number of aspects. The decrees are the result of a deliberate choice made by the regional legislatures, at the end of a carefully considered parliamentary process (para 109). In previous case law, the Court has indicated that it was confronted with a ‘societal choice’ and that it had to ‘exercise restraint in its review of the conventionality of a choice made democratically within the society in question’ (e.g., regarding the full-face veil in public places, in France and Belgium, see ECtHR, 1 July 2014, S.A.S. v France, paras 153-154; 11 July 2017, Belcacemi and Oussar v Belgium, paras 53-54; 11 July 2017, Dakir v Belgium, paras 56-57). In addition to these democratic choices, there is an important legal-procedural aspect: both the CJEU and the Constitutional Court have, in the context of their respective review, taken detailed account of the requirements of Article 9 ECHR. This twofold review is in keeping with the spirit of subsidiarity that permeates the Convention (para 115). In sum, both the democratic process and the dual levels of judicial scrutiny legitimize the decrees.

Reversible stunning and animal suffering

The Court then turns to an important new aspect of the present decrees. Where animals are slaughtered in accordance with religious rites, the stunning process applied is reversible and does not result in the death of the animal (the cause of death remains the bleeding out). These days, scientific data proves (p. 49) that the animals are not killed as a result of the stunning (by electronarcosis), which makes prior (reversible) stunning less debatable. According to the Court, the Flemish and Walloon legislatures have – on the basis of scientific studies and extensive consultation with interested parties – sought an alternative stunning method (i.e., reversible stunning) to ritual slaughter. In doing so, the legislatures banned ritual slaughter without stunning, but not ritual slaughter ‘as such’ (i.e., imposing technical conditions on ritual slaughter, in the aftermath of the CJEU judgment, see Elien Verniers, p. 103-104). Thus, they have taken into consideration the right claimed by persons of the Muslim and Jewish faiths to manifest their religion in the light of the growing importance attached to the prevention of animal suffering in these regions. The Court concludes there has been no violation of Article 9 ECHR, in view of the wide margin of discretion which Member States have (para 123).

In the eighteenth century, the status that should be assigned to animals, was still a matter for philosophers to discuss. In 1789, Jeremy Bentham (1748-1832) presented this issue in a forceful and inescapable way: ‘The question is not, Can they reason? Nor, Can they talk?, but Can they suffer?’ (Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by J.H. Burns and H.L.A. Hart (Methuen, London/New York 19821 283 (chapter 17)). The 21st century is quite different from the 18th in regard to animal welfare. The change in ethical thinking regarding animal welfare has resulted in declarations and legislation at the national, international and EU level. Our moral values towards animals have gradually come to be accepted as part of public morality.

So far, however, religion and its manifestations, and more particularly the touchy topic of ritual slaughter were presented as a permissible exception, despite the suffering of animals as a result of this religious practice. The possibility of reversible stunning has now enabled accommodating both sides of this matter in an evolving context, leading to a new approach in the present landmark judgment of the ECtHR. Does this mean that humans must give in to non-humans, and that the freedom to manifest one’s religion must yield to animal welfare? No, it does not. After all, ritual slaughter is not banned as such and still permitted under the contested decrees. But – in the Flemish and Walloon Regions – the animals must be stunned before being slaughtered, whether it is in the name of religion or not.

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