By Dr. Matthijs de Blois, Senior Fellow, thinc.
Introduction
For the third time in Dutch legal history an attempt is made to prohibit ritual slaughter of un-stunned animals. The first attempt, during the German occupation of the Netherlands between 1940 and 1945, was ‘successful’. One of the first laws adopted by the German occupying (Nazi-) authorities was the prohibition of the slaughter of un-stunned animals, which was obviously an anti-Semitic measure to prohibit the Jews from performing the shechitah [1]. The second attempt was the Private Members Bill introduced by a representative of the Dutch Party for the Animals, Ms. Thieme in 2008. That Bill was adopted by the Second Chamber of the Dutch Parliament (Tweede Kamer = Lower House), butrejected by the Senate (Eerste Kamer) in 2012, because the proposal made an unjustified interference with the freedom of religion. Now a third attempt has been made by Ms. Thieme in a new Private Members Bill introduced in 2018, which is currently pending before Parliament.[2] As its predecessor it aims at the abolishment of the Jewish and Islamic slaughter of un-stunned animals. The proposal is motivated by notions of animal welfare. But it raises serious questions concerning the freedom of religion.
The freedom of religion also protects the freedom to observe religious commandments concerning the slaughter of animals.[3]
According to Article 18 of the Universal Declaration of Human Rights, Article 9 of the European Convention on Human Rights, Article 18 of the International Covenant on Civil and Political Rights and Article 10 of the EU Charter of Fundamental Rights, the freedom of religion does not only protect the freedom to have or adopt a religious conviction, but also the freedom to act in conformity with divine commandments. These provisions protect the freedom to manifest one’s religion ‘in worship, teaching, practice and observance’.[4] The term observance, that was used in the Universal Declaration of Human Rights, the ‘mother text’ of many of the subsequent human treaties, was included at the request of a Jewish organization to protect practices like shechitah.[5] The European Court of Human Rights accepted in its judgment in the case of Cha’are Shalom ve Tsedek v. France that the practice of ritual slaughter is a manifestation of religion through observance: ‘The Court next reiterates that Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance (…). It is not contested that ritual slaughter, as indeed its name indicates, constitutes a rite or “rite” (the word in the French text of the Convention corresponding to “observance” in the English), whose purpose is to provide Jews with meat from animals slaughtered in accordance with religious prescriptions, which is an essential aspect of practice of the Jewish religion (…). It follows that the applicant association can rely on Article 9 of the Convention with regard to the French authorities’ refusal to approve it, since ritual slaughter must be considered to be covered by a right guaranteed by the Convention, namely the right to manifest one’s religion in observance, within the meaning of Article 9.’[6] In a more recent judgment the Court of Justice of the European Union interpreted Article 10 of the EU Charter of Fundamental Rights in a similar way.[7] Moreover, the Human Rights Committee, that supervises the implementation of the International Covenant on Civil and Political Rights, held in its General Comment 22: ‘The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations’. Finally, the exceptions on the prohibition of un-stunned slaughter for slaughter practices in conformity with Jewish and Islamic religious prescriptions in both Dutch[8] and European law[9] have been introduced because of the need to protect religious freedom. For example, in the Preamble of Regulation (EC) 1099/2009 we read: ‘(…) it is important that derogation from stunning animals prior to slaughter should be maintained, leaving, however, a certain level of subsidiarity to each Member State. As a consequence, this Regulation respects the freedom of religion and the right to manifest religion or belief in worship, teaching, practice and observance, as enshrined in Article 10 of the Charter of Fundamental Rights of the European Union.’ As a consequence, Article 4 (4) of the Regulation provides: ‘In the case of animals subject to particular methods of slaughter prescribed by religious rites, the requirements of paragraph 1 [the prohibition of un-stunned slaughter] shall not apply provided that the slaughter takes place in a slaughterhouse.’ The Regulation allows in Article 26 for stricter national rules to protect the welfare of animals. In our view, however, these rules cannot justify the abolishment of the exception that was included because of respect for the freedom of religion as enshrined in Article 10 of the Charter of Fundamental Rights of the European Union.
The abolishment of religious slaughter cannot be justified by the limitation clauses of the articles on religious freedom.
The MP who introduced the Private Members Bill does not deny that the freedom of religion is at stake. She assumes however, that the prohibition of ritual slaughter can be justified by the limitation clauses of the relevant treaty provisions. In that connection she focusses on Article 9 (2) of the European Convention on Human Rights, which allows for limitations of the freedom of religion, provided they are ‘prescribed by law and (…) 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.’ In that connection she first submits that the proposal could be justified to protect public order. This, because in her view according to (Dutch) national and European law animal welfare is seen as a legitimate objective of general interest. It is however a misunderstanding that general interest and public order are synonymous. Otherwise virtually all measures considered by the legislature to be in the general interest could justify an interference of religious freedom. Public order in the Convention has a more restricted meaning, namely the maintenance of peace in society. It is unlikely that this will be the result of the proposed legislation. On the contrary. Rather than peace, the prohibition of religious traditions that have existed for millennia will create unrest in society. The second ground referred to by the initiator of the Bill as justification for the ban is the protection of morals. According to her, the protection of animal welfare is part of present-day morals. She pointed at the fact that already since the nineteen-twenties the Dutch legislator has assumed that humanity required the obligatory stunning of animals. She overlooks however that already the first legislative measure to prescribe the stunning of animals to be slaughtered, was accompanied by a provision that exempted the Jewish religious slaughter from the prohibition. Therefore it is doubtful whether a one-sided view of what morality entails can serve as a justification of the proposed measure. Also the protection of religious minorities was and is part and parcel of the morality in society. Even if any ground can be found in or among those enumerated in Article 9 (2), it is in addition required that the limitation on that ground is necessary in democratic society. The initiator fails to substantiate this in the Explanatory Report, notwithstanding the fact that this requirement is in general the main criterion for the European Court of Human Rights when it has to judge if a limitation of one of the freedoms of the European Convention is justified. It is the framework within which – in this case – the balancing between the freedom of religion of human beings and the opposing interest of animal welfare has to take place. Religious minorities have the right to live in conformity with divine commandments that have existed for millennia. In a pluralistic democracy this is essential. Religious minorities should be able to feel that they are part of society. Moreover it has to be taken into account that the religious commandments concerning the slaughter of animals, both in Judaism and Islam, include measures to protect animal welfare. All this has to be weighed against the interest not of human, but of animal welfare, that in the view of the initiator, requires that animals are stunned before slaughter. Experts are however not unanimous that this is indeed the case. Moreover, in the framework of the balancing we should not only take into account the animal-welfare aspects of ritual slaughter, but also of the so-called ‘industrial slaughter’ where stunning is the practice, but in an massive setting. The size of the ‘industrial slaughter’ in the Netherlands is enormous, about 700 Million animals a year. It can be imagined that a practice on this scale will yield a percentage of malpractices, with negative consequences for animal welfare. The size of the ritual slaughter is in comparison very small, it is not more than a fraction, almost negligible. Already in that light a prohibition of only the religious slaughter is not proportional. The, possible, small gains in terms of animal welfare do not justify a serious interference with religious freedom. It should be kept in mind that human rights have not been enacted in the law to protect the ideas and practices of the majority, but those of minorities.
Conclusion
It remains to be seen whether the proposal of Ms. Thieme will ever become law. Hopefully the argument that it is an unjustified interference with the freedom of religion, which is protected by various international instruments as well as by the Constitution of the Netherlands, will convince members of Parliament to reject it. The introduction of the Bill, so short after the rejection of a similar proposal five years before, is already causing great concern, especially in Jewish and Muslim communities. That concern is understandable. The proposal is also part of a broader tendency in the public opinion in the Netherlands to restrict more and more the freedom of religion, which by atheists is labeled as a privilege of believers. The focus is not only on ritual slaughter, but also the right to circumcise infant boys and the freedom of religious schools to teach doctrines that are opposed to the dominant secular humanism. Similar tendencies in other European countries have already resulted in legislation. For example, in two of the three regions of Belgium (Flanders and Wallonia) ritual slaughter of un-stunned animals is now prohibited by law. A judicial review action against the Flemish legislation has been submitted to the Belgian constitutional court. This court has suspended the case, pending a preliminary ruling of the Court of Justice of the EU on the compatibility of the legislation with European law.[10] In our opinion the Court of Justice has good reasons to conclude that the Flemish legislation is contrary both to Regulation (EC) 1099/2009 and Article 10 of the EU Charter of Fundamental Rights. A judgment upholding the freedom of religion will also have a positive effect on the Dutch debate.
See also [11].
[1] Jewish religious slaughter. See Restrictions on Kosher Ritual Slaughter for Reasons of “Preventing Cruelty to Animals”: The First Ant-Jewish Regulations – July 31, 1940, Shoah Resource Center, The International School for Holocaust Studies, www.yadvashem.org
[2] TK [ Annex to the Acts of the Second Chamber of Parliament] 2017-2018, 34908 nrs.1,2 and 3.
[3] See on this, in general, Pablo Lerner and Alfredo Mordechai Rabello, ‘The Prohibition of Ritual Slaughtering (Kosher Shechita and Halal) and Freedom of Religion of Minorities’, Journal of Law and Religion Vol. XXII (2006-2007) 3, pp. 1-62, at pp. 19-20.
[4] Emphasis added.
[5] A. Verdoodt, Naissance et signification de la Déclaration universelle des droits de l’homme, Editions Nauwelaerts, Louvain-Paris, 1964, p. 178.
[6] European Court of Human Rights 27 June 2000, Jewish Liturgical Association Cha ‘are Shalom ve Tsedek v. France, ECHR 2000-VII, par. 73 and 74.
[7] Court of Justice of the European Union, judgment of the Grand Chamber of 29 May 2018 in case C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW e.a. tegen Vlaams Gewest, par. 43, 44 en 45.
[8] TK 2007-2008, 31 389, nr, 3, p. 51.
[9] See European Convention for the Protection of Animals for Slaughter (1979). Explanatory Report, http://conventions.coe.int/treaty/en/Reports/Html/102.htm, on Article 17, p. 5 and Regulation (EC) 1099/2009, OJ L 303, 18.11.2009. See Preamble.
[10] Case C-336/19.
[11] Matthijs de Blois, Dierenrechten versus godsdienstvrijheid [Animal rights versus freedom of relgion], in: Henk Post en Gerhard van der Schyff (red.) Godsdienstvrijheid in de Nederlandse rechtsorde. Nationale en Europese perspectieven [Freedom of Religion in the legal order of the Netherlands. National and European Perspectives], Oisterwijk: Wolf Legal Publishers 2014, pp. 341-364.
