Both before the Court of Justice of the European Union (CJEU) and the Belgian Constitutional Court, a coalition of Muslim and Jewish groups and individuals have fought Belgian regional regulations that effectively ban religious slaughter. They lost in both instances. Hopes were not high that the European Court of Human Rights (ECtHR) would be much different. Accordingly, including in the context of the ECtHR’s prior case law on religious slaughter, the Strasbourg Court’s decision of 13 February 2024 in Executief van de Moslims van België v Belgium disappoints in its unwillingness to engage properly with Europe’s guarantees of religious freedom.

Background

The Belgian regions of Flanders (2017) and Wallonia (2018; a codification of an earlier, 2017 decree) both mandate stunning before the killing of ruminants. The relevant decrees contain blanket exceptions allowing unstunned slaughter for hunting, fishing, or pest control. For religious slaughter they contain an ‘exception’ which still requires a form of stunning. However, Jewish law and some interpretations of Islamic law prohibit stunning an animal prior to slaughter in any form.

The guarantee under Article 9 ECHR of the freedom to manifest one’s religion may be infringed by law as necessary in a democratic society for the protection of public morals, public order, or the rights and freedoms of others. The ECtHR’s task was to decide whether the restrictions at issue were necessary to achieve their aim and whether the consequent infringement of the rights of Muslims and Jews was proportionate.

Belgium claimed, with justification, that animal welfare is a legitimate aim in a democratic society. With far less justification, it also suggested that the stunning element was not particularly religiously essential (see, eg [84]). Yet no Talmudic and Hadith expertise was claimed by Belgium’s lawyers. With sweeping force but without evidence to this point, Belgium further claimed that no other measure could possibly preserve animal welfare and that the need to protect animals meant that the absolutist measure was thus proportionate.

The ECtHR’s decision

The ECtHR accepted that it is not for Belgium to dictate what part of religious slaughter is sacred [85]; the adherents in the litigation and their coherent, serious, and important belief regarding the manner of religious slaughter are protected by Article 9 [87]. The Court also concluded that the evolving notion of ‘public morals’ could come to encompass animal welfare [100] and that States could choose to, within their margin of appreciation, emphasise the protection of animals [106].

However, when it came to proportionality and necessity, the Court merely cried out ‘subsidiarity’. It entirely deferred to the defending State’s conclusions as to the availability of less restrictive measures and assured us that the regional parliaments had thoroughly done their homework [118]. The ECtHR, like the CJEU and the Belgian Constitutional Court before it, fell back on the availability of meat from unstunned slaughter in the Brussels region (where there is no such ban) or from other states [122].

The ECtHR also readily agreed that no discrimination was present since hunting was nothing like religious slaughter, again without providing reasons.

Analysis

Deference to national authorities are trite virtues of European law, but they do not erase the requirement for evidence. The Court simply nodding to a State which claims to have done its homework, makes European human rights judicial control nugatory. Belgium barely bothered with justification, instead advancing arguments that touched onto points of theology.

Like the CJEU before it, the ECtHR also adds a potential sunset clause to its own ruling. The paragraph 122 justification of the possibility of foreign procurement clearly falls away if and when States in a domino effect start imposing similar bans. This also means that the rights of minorities in any one State become dependent on whether or not other States produce such products.

The judgment with its emphasis on the individual’s consumption of the meat also fails to engage with a core part of the Article 9 protection. To those professing the faiths at issue, both consumption of the meat produced in accordance with the rites, and access to the rites themselves, are part of their religious expression. To put it in a comparative perspective: Catholic freedom of religious expression (the Communion with Christ) would be infringed if the Consecration of the Host were banned locally, but the consumption of Consecrated Hosts carried out elsewhere were guaranteed.

Further, courts are concerned that proportionality analysis may turn judicial review into a legislative process. Yet, it is possible to shift too far into the other direction. Where an infringement erases a significant right, proportionality must be properly tested and evident discrimination must be second-guessed. The ECtHR has let the essence of a core right be sacrificed without a single searching question. This may be good politics, but it is abysmal human rights law, and it is rightfully being appealed to the Grand Chamber.