The conflict between the right to religious freedom and the duty to guarantee animal welfare

By Ana Garnelo Fernández-Trigales. Lawyer. Training and Equality Commission of the Ponferrada Delegation of the León Bar Association.

The author analyzes the controversy between religious freedom in articles 10 of the Charter of Fundamental Rights of the European Union and 9 of the European Convention on Human Rights versus the duty to guarantee animal welfare in article 13 of the Treaty on the Functioning of the European Union. , collected in a ruling of the European Court of Human Rights of February 13, 2024 (Executief van de Moslims van België and Others v. Belgium).

The year 1948 marks a milestone in the history of human rights with the proclamation of the Universal Declaration of Human Rights, by the General Assembly of the United Nations in Paris, on December 10.

Through this instrument, the fundamental human rights that must be protected throughout the world are established for the first time; inspiring and paving the way for the enactment of more than seventy human rights treaties that are permanently applied today at the global and regional levels. This is because it understands - according to its own preamble - that freedom, justice and peace in the world are based on the recognition of the intrinsic dignity and equal and inalienable rights of all members of the human family; that ignorance and contempt for human rights have given rise to acts of barbarism that are outrageous to the conscience of humanity; that it is essential that human rights be protected by a regime of law, so that man is not forced to the supreme resource of rebellion against tyranny and oppression; and that it is essential to promote the development of friendly relations between nations.

Such is the relevance of human rights that a global consensus has been reached when it comes to defining them as inalienable rights, which do notor they should be deleted except in certain situations and with due procedural guarantees.

Human rights are also equal and non-discriminatory as stipulates article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights".

Human rights, of which all people are owners, include both rights and obligations for theThe States that, by virtue of international law, must respect and protect them.

In its Article 18 the Universal Declaration of Human Rights proclaims that "Every person has the right to freedom of thought, conscience and religion; This right includes the freedom to change his religion or belief, as well as the freedom to manifest his religion or belief, individually and collectively, both in public and private, in teaching, practice, worship and observance.".

This precept is reflected in article 16 of our Constitution, by virtue of which the ideological, religious and cult freedom of individuals and communities is guaranteed with no further limitation, in its manifestations, than that necessary for the maintenance of public order. protected by law; in such a way that no one can be forced to declare about their ideology, religion or beliefs. It is also established that no confession will have a state character and that the public powers will take into account the religious beliefs of Spanish society and will maintain the consequent relations of cooperation with the Catholic Church and other confessions.

This is the context in which the ruling of the European Court of Human Rights must be analyzed, which has recently endorsed the prohibition of animal sacrifice with kosher and halal rituals, used for human consumption among Jewish and Muslim believers, in response to a lawsuit filed by thirteen Belgian nationals and seven non-governmental organizations from the same country representing Muslim communities, as well as Muslim religious authorities and Belgian nationals of Jewish confession.

The ruling declares that there is no violation of article 9 of the European Convention on Human Rights - which proclaims freedom of religion - nor of article 14 of the same text - which includes the prohibition of discrimination - by prohibiting the slaughter of animals without prior stunning. in the Flemish and Walloon regions, while allowing reversible stunning for ritual sacrifices.

The Court itself recognizes that this is the first time that it has been proposed that the protection of animal welfare can be linked to one of the objectives of Article 9 of the Convention.

This is the case of Belgium, which in 1986 passed a law on the protection and welfare of animals that establishes that, except in cases of force majeure or necessity, vertebrates cannot be sacrificed without being anesthetized or stunned. And this requirement did not apply, however, to sacrifices for religious rites.

In 2014, following a legislative reform, animal welfare became a regional competence and the Flemish and Walloon Regions ended the exception that allowed the ritual slaughter of animals without stunning.

Both decrees were based on the scientific consensus that prior stunning was the optimal means to reduce the suffering of the animal at the time of sacrifice, so that legislators had sought a proportionate alternative to the obligation of prior stunning, since it provided for that, if the animals were sacrificed according to special methods required by religious rites, the stunning process used would be reversible, without causing the death of the animal.

On February 13, 2024, the European Court of Human Rights issued a ruling that supports the prohibition of the slaughter of animals without prior stunning with halal and kosher rituals, typical of the Muslim and Jewish religions, in the regions mentioned.

The text makes it clear that the European Court of Human Rights has adopted this position in favor of the legislation on animal welfare in these territories despite the fact that European standards, which require stunning animals to prevent their suffering, consider the religious reasons an exception.

The slaughter of animals for meat production, widespread as a production mechanism, is a complex process that consists of several phases: ante-mortem inspection, stunning, slaughter, post-mortem inspection, controls and airing. The entire process must be carried out following good practices regarding the hygiene of the process, veterinary controls and the method of slaughter, including the stunning phase, which consists of the loss of consciousness of the animal prior to bleeding and is the basis of the humanitarian sacrifice, since it reduces their suffering.

Prior stunning is included as an obligation in European Council Regulation 1099/2009, of September 24, 2009, regarding the protection of animals at the time of slaughter. However, there are exceptions related to particular methods of slaughter prescribed by religious rites, including the halal rite and the kosher rite. Both rites coincide in the need for the animal to be alive before cutting the neck to promote bleeding.

Given this situation of controversy, the figure of reversible stunning appears, this concept being understood as stunning that does not result in the death of the animal. Given this, Flanders and Wallonia, with the possibility of legislating on animal welfare, modified their laws in 2017 and 2018, respectively, mandating reversible stunning even in cases of religious rites.

The Jewish and Muslim communities questioned the validity of the regulations, alleging the violation of the right to religious freedom, which is recognized in article 10 of the Charter of Fundamental Rights of the European Union and in article 9 of the European Convention on Rights. Humans.

Thus, we find ourselves facing a scenario in which an obvious conflict of interest occurs. On the one hand, the right to religious freedom which implies the observance of certain rites and, on the other, the duty to guarantee animal welfare, expressly mentioned in article 13 of the Treaty on the Functioning of the European Union.

There have been three courts that have intervened to resolve this conflict: the Constitutional Court of Belgium, the Court of Justice of the European Union and the European Court of Human Rights. The three judicial bodies have agreed on the result: a regulation that requires the stunning of animals prior to their sacrifice does not violate the right to religious freedom when its objective is to guarantee their maximum well-being during the death process.

The European Court of Human Rights, in a ruling of February 13, 2024 and despite the fact that while European Union law expressly recognizes animal welfare as an objective of general interest, the European Convention on Human Rights does not, understands that protection of animals is recognized through the legitimate objective of protection of «public morality», understanding that the notion of morality is constantly evolving and that, in today's society, animal welfare constitutes an ethical value to which contemporary democratic societies attribute increasing importance.

This way protects the approval of similar standards by the rest of the member countries of the European Union and the Council of Europe; legislation that already exists in States such as Slovenia, Finland, Sweden or Denmark.