In the Strasbourg Club: Executief van de Moslims van België and others v Belgium

Eva Brems

‘Stop internationalization now!’ I am shouting at my laptop screen, laughing. This is banter of course. The Strasbourg Club just realized that we are having a meeting with Dutch speakers only – four in the room in Ghent, plus three online. The joke is that this will be the new normal after the nationalist extremists take power in the next election. Bad humor maybe, and a poor masquerade of the helplessness that we regularly feel as human rights experts when contemplating some future scenarios.

After deciding that we will do this in Dutch this time, we start our discussion.

Chloe introduces Executief van de Moslims van België and Others v Belgium, a judgment that unanimously finds that the ban on the religious slaughter of animals without prior stunning in Flanders and Wallonia does not violate the Convention. As a matter of fact, she is struggling to find the right words in Dutch to talk about a judgment we read in French, while we usually discuss human rights in English. But she has interesting things to say: ‘Compared to the other religious slaughter case (Cha’are Shalom ve Tsedek v France), an important difference is that the legitimate aim justifying the rights restriction in the Belgian case is not public order or public health, but animal welfare, which is brought under the protection of morals’.  Leonore jumps in, ‘don’t we all agree that this is justified? I mean: many people care a lot about animals.’ There is general nodding as Leonore points to the popularity of civil society organisations and even political parties focusing on animal welfare. Still, similar nodding follows when Chloe adds ‘Yes, but… we all witnessed the debates on this issue in our country, didn’t we? I am sure that for some people these bans are really about animal welfare. But I am also sure that a great many people support such measures because they don’t want the Muslim minority to have any so-called “privileges.”’ Many hands are raised, ready as we are with our anecdotal evidence in support of that statement. But Chloe has a further point to make: ‘On the one hand I am happy to see that “the protection of morals” is presented here as an open category that can accommodate widely shared values that were not so much on the agenda at the time the Convention was drafted. This can be handy also in future cases, and it may be better than over-stretching the “rights of others.” Think of values relating to climate and nature, which we may not always want to phrase in anthropocentric terms.’ ‘Good point, Chloe’, I comment. ‘But, but, but…’ – she has more to say- ‘but at the same time, it is striking that creativity in the legitimate aims department seems to be most easily at hand when restrictions of Muslim minorities’ rights are being justified; I am thinking of “living together” in S.A.S. v France of course’. Vigorous nodding.

Then Olivier takes the floor: ‘I would like to discuss the disagreement between the majority ruling and the separate opinion of Judges Koskelo and Küris about the proportionality test. I interrupt him: ‘indeed, they are making such a good point. Paragraph 117 of the judgment seems to suggest that “less restrictive means” reasoning is the standard proportionality test of the Court, which is manifestly not true – I have written a paper about this, with Laurens. And I don’t get how they link the reference to “less restrictive means” reasoning with a reference to the margin of appreciation. What I teach my students is that “less restrictive means” reasoning signals strict scrutiny and a very narrow margin…’. Olivier shakes his head: ‘What I see here is something else, a clash between a procedural and a substantive version of proportionality reasoning, and different ways of mobilizing the margin of appreciation. In the separate opinion, this is a substantive margin of appreciation, signalling a lesser degree of scrutiny in the proportionality test as applied by the Court. But the majority judgment is all about procedural review: they apply a procedural version of the “less restrictive means” test: if the state can show that it has looked into less restrictive means, that contributes to the finding that the procedure was solid, which is rewarded by a larger margin of appreciation. This intervention brings the discussion to a more theoretical level – many of us are frowning. But when the point sinks in, we agree.

‘I wonder if this is a case where procedural review is taken too far?’ Leonore suggests. ‘I mean, is this not a typical example of it becoming a box-checking exercise? This is about an intervention in minority religions, and the Court is happy that there have been talks with the representatives of the Belgian Muslims and Jews, but that seems to be regardless of the weight that was actually given to their views’. I agree with this: ‘I was struck by the first sentence of paragraph 119’, I submit, ‘where the Court says it is not up to them to say if the measure of reversible stunning is compatible with religion or not’, regardless of this, the proposal of such “alternative” is taken as evidence of good balancing by the national authorities. But isn’t the compatibility with religious rules the crux of the matter?’ ‘But Eva, you don’t want the Court to be interpreting religion, do you?’ Rick intervenes. ‘Oh dear of course not’, I am quick to respond, no, what I mean is that the applicant’s assessment of the compatibility of a measure with their religion is the crux of the matter, and the Court does not seem to see it that way’.

I start telling an anecdote that goes back to my days as an MP for the Green Party – which was at the time very much troubled by religious slaughter because the party wanted to protect animal welfare, but did not want to compromise the human rights of religious minorities. In a roundtable with representatives from the Muslim and Jewish communities, I learned that compromises on stunning were not entirely excluded for some Muslim scholars, but that they were completely out of the question for Jewish religious doctrine. ‘The point is’, I conclude my story, ‘that for some believers, religious practice is compromised by any kind of stunning of the slaughtered animal, so that at least for these people, the alternative the Court makes so much of, does not make any difference with a complete ban on religious slaughter. I bet that there are some of these people among the applicants.’ 

‘I see what you mean’, Rick adds, ‘reading the judgment I had the feeling that the Court was not paying all that much respect to the very serious religious interests at stake here, for Jews as well as for Muslims, and which were until recently almost self-evidently respected across Europe’. ‘That is the effect of procedural review, isn’t it’, Tom follows up, ‘the Court takes some distance from the interests at stake in the balancing exercise, and this comes at the expense of language paying due respect to the human rights that are at stake’. Chloe continues this line of reasoning: ‘I felt that animal welfare got more attention than religious freedom, though maybe that is because it is a new interest to be recognized in this context. But still, the focus on the increasing importance of animal welfare in Europe seems to obscure the context of the decreasing importance of the protection of religious minority rights for many European governments.’ ‘The comparison with hunting’, Leonore interjects, ‘is a bit too easily dismissed by the Court, I feel. The way I see it, the exception for hunting sort of reveals that the commitment to animal welfare is not all that strong’. ‘Indeed’, shouts Rick, ‘let’s not forget that the animals are still killed after all’. As most of us are vegetarians, we see this as a very relevant point. Next, I start to share what I learned about Islamic doctrine’s emphasis on animal welfare, but Chloe rightly stops this short: ‘Do you know we have been talking for almost an hour? And that we have four more cases to discuss?’  

Excellent point.

We conclude the discussion with a quick straw vote that shows that all of us are hoping for this case to be reconsidered by the Grand Chamber.