U-I-140/14

Reference no.:
U-I-140/14
ECLI:
ECLI:SI:USRS:2018:U.I.140.14
Act:
Animal Protection Act (Official Gazette RS, No. 38/13 – official consolidated text) (APA), 2nd Para. of Art. 25
Operative provisions:
The second paragraph of Article 25 of the Animal Protection Act (Official Gazette RS, No. 38/13 – official consolidated text) is not inconsistent with the Constitution.
Abstract:
Unhindered access to the meat of ritually slaughtered animals for the purposes of the daily consumption thereof and especially during Kurban Bayram is an essential and significant part of the Islamic faith. The challenged provision hinders such access, as it results in the supply of halal meat depending exclusively on import from abroad. The second paragraph of Article 25 of the Animal Protection Act hinders the fulfilment of key religious duties and thus interferes with the freedom of religion of members of the Islamic faith.
 
The constitutionally imposed protection of animals from cruelty also includes the efforts of the legislature to prevent, ease, or alleviate unpleasant feelings of pain, stress, and fear that people cause animals. From that aspect, the requirement that the well-being of animals be protected stems from morals and is a constitutionally admissible objective of an interference with freedom of religion.
 
In matters of difficult scientific questions, the Constitutional Court cannot be an arbiter. In such matters, it grants the legislature some leeway. The Constitutional Court may then only examine the appropriateness and necessity of the disputed measure for attaining the pursued objective if from the claims in the petition it is manifest that the extreme limits of the legislature’s margin of appreciation were exceeded.
 
The Animal Protection Act establishes high criteria for the protection of animals in a generally binding, internally consistent, and religiously neutral manner. The challenged regulation prohibits not only Islamic ritual slaughter but also any slaughter of unstunned animals.
 
The fact that the prohibition of the ritual slaughter of unstunned animals prevents the inflicting of pain that can be avoided is of decisive importance in the process of balancing the benefits of the challenged limitation and the weight of the challenged limitation. Thereby, the second paragraph of Article 25 of the Animal Protection Act protects a key moral obligation in the Slovene cultural environment and concurrently does not excessively interfere with the right to freedom of religion. The consequences of the challenged provision for freedom of religion are namely limited.
 
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[The text published below is a summary prepared for the annual report.]
 
Freedom of Religion and the Ritual Slaughter of Animals
 
By Decision No. U-I-140/14, dated 25 April 2018 (Official Gazette RS, No. 35/18), upon a petition of the Slovene Muslim Community and a natural person, the Constitutional Court decided on the constitutionality of the second paragraph of Article 25 of the Animal Protection Act (the APA), which determines that animals must be stunned also during ritual slaughter. The central question in the case at issue was whether the challenged statutory provision is inconsistent with the freedom of religion determined by the first paragraph of Article 41 of the Constitution. The petitioners (a religious community whose objective is to preserve Islamic values and a natural person who is a Muslim) alleged that it is unconstitutional that the second paragraph of Article 25 of the APA determines the obligatory prior stunning of all animals for slaughter, without providing an exception for Islamic ritual slaughter. Allegedly, the challenged provision prevents Muslims from enjoying a supply and consumption of halal meat on a daily basis, and in particular on the occasion of Kurban Bayram, which is an Islamic religious holiday.

The Constitutional Court accepted the petitioners’ reasoning that regular consumption of the meat of animals slaughtered in conformity with Islamic rules and the consumption and donation of the meat of animals slaughtered in such manner during Kurban Bayram entails fulfilment of important religious duties that are reasonably connected with the essence of the religious belief at issue. Therefore, both are protected by the right to freedom of religion determined by the first paragraph of Article 41 of the Constitution. Since the challenged provision renders access to the meat of ritually slaughtered animals difficult, and thus also the daily consumption thereof and full and unhindered celebration of Kurban Bayram, it hinders the performance of key religious duties. Therefore, according to the Constitutional Court, it interferes with the freedom of religion of the members of Islamic faith.
 
However, the Constitutional Court stressed that when assessing the admissibility of limitations of the right to freedom of religion determined by the first paragraph of Article 41 of the Constitution it is necessary to take into consideration, in view of the fifth paragraph of Article 15 of the Constitution, the objectives determined by the second paragraph of Article 9 of the ECHR, due to which interference with freedom of religion may be admissible. The objective of the second paragraph of Article 25 of the APA is to ensure the well-being of animals. Within the context of the case at issue, this means the protection of animals from torture, which is expressly required by the fourth paragraph of Article 72 of the Constitution. The definition of the constitutionally required “protection of animals from torture” also requires that the legislature strive to prevent, ease, or alleviate unpleasant feelings of pain, stress, and fear that people cause animals. The objective of the requirement that animals be stunned prior to slaughtering, i.e. to ensure the well-being of animals, is a part of morals, as an ensemble of rules that characterise and direct the conduct of people based on conceptions of good and bad. In view of the second paragraph of Article 9 of the ECHR, morals are an admissible reason for interfering with freedom of religion.

When assessing the proportionality of this measure, the Constitutional Court established that the measure is appropriate and necessary, i.e. that the prior stunning of animals can effectively ease the pain and fear of animals, and that no milder means of achieving that objective exist that would interfere with freedom of religion to a lesser extent. The legislature has also already carried out such an assessment. Since the legislature based that assessment, which concerns a complex scientific field, on scientific bases and did not exceed the furthermost limits of its discretion, the Constitutional Court accepted it. Within the framework of assessing proportionality in the narrower sense, the Constitutional Court decided that the constitutional weight of the benefits gained from the second paragraph of Article 25 of the APA is significant. The absence of the rule in question in the second paragraph of Article 25 of the APA would signify that unstunned animals can be slaughtered, which would expose animals that are to be slaughtered to additional pain, stress, and suffering from the moment their neck is cut to the moment they lose consciousness. On the other tip of the scale, however, access to halal meat is rendered more difficult, which has additional weight in conjunction with the importance of the donation and consumption of such meat during the celebration of Kurban Bayram in conformity with religious obligations. The consequences of the challenged provision for freedom of religion are limited already due to its religious neutrality; furthermore, access to halal meat is merely rendered more difficult for Muslims and it is not rendered impossible, as – according to one petitioner – the ritual slaughter of animals during Kurban Bayram can be ordered abroad. Hence, the fact that the prohibition of the ritual slaughtering of unstunned animals entails a prohibition on inflicting pain that can be avoided was of decisive importance in the process of balancing the benefits of the challenged limitation and the weight of the challenged limitation. Thereby, an important moral obligation in the Slovenian cultural environment is protected. Consequently, the state is permitted to prohibit conduct that is incompatible with the fundamental rules and moral framework of the society, provided that concurrently it does not excessively interfere with the right to freedom of religion. The Constitutional Court thus decided that the challenged regulation is not unconstitutional as it does not excessively interfere with the right to freedom of religion determined by the first paragraph of Article 41 of the Constitution.
 
Password:
1.5.51.1.13.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation is in conformity - With the Constitution.
5.3.17 - Fundamental Rights - Civil and political rights - Freedom of conscience.
3.7 - General Principles - Relations between the State and bodies of a religious or ideological nature.
3.16 - General Principles - Proportionality.
5.5.53 - Fundamental Rights - Collective rights - Protection of Animals from Cruelty „(72/4)“.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
Legal basis:
Art. 21, Constitutional Court Act [CCA]
Note:
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Document in PDF:
The full text:
U-I-140/14
25 April 2018
 
 
DECISION
 
At a session held on 25 April 2018 in proceedings to review constitutionality initiated upon the petition of the Slovene Muslim Community, Ljubljana, represented by Dr Andraž Teršek, Kamnik, and of Edin Kumalić, Ljubljana, the Constitutional Court
 
decided as follows:
 
The second paragraph of Article 25 of the Animal Protection Act (Official Gazette RS, No. 38/13 – official consolidated text) is not inconsistent with the Constitution.
 
REASONING
 
 
A
 
1. The petitioners allege that the second paragraph of Article 25 of the Animal Protection Act (hereinafter referred to as the APA) is inconsistent with Articles 7 and 41 of the Constitution “in conjunction” with Articles 1, 2, and 14 of the Constitution and Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR). They explain that the petitioner the Slovene Muslim Community was established in order to preserve Islamic values among Muslims in Slovenia, and also to connect with Muslims around the world. Its members are allegedly Slovene nationals who are Muslims. The petitioner Edin Kumalić filed the petition as a Muslim (i.e. a person of the Islamic faith). The petitioners allege that the ritual slaughter of animals without prior stunning is an essential part of the Islamic faith, and hence also of freedom of religion and in the interest of religious worship by Muslims in Slovenia, whom the petitioner represents. The inadmissibility of prior stunning is allegedly very clearly expressed in the fundamental Islamic source [i.e. the Quran]. Allegedly, Islam prescribes the consumption of the meat of animals slaughtered in a special manner. The petitioners extensively describe the content and sources of Islamic religious rules that allegedly prohibit the stunning of animals prior to their slaughter and regulate ritual slaughter. In such framework, they draw attention to the religious holiday Kurban Bayram, when one sacrificial animal should be slaughtered per household (a camel, a cow, a sheep, or a goat). The second paragraph of Article 25 of the APA allegedly directly unconstitutionally interferes with the constitutional rights and interests of the petitioner and Muslims in Slovenia, whom the petitioner represents.
 
2. The petitioners allege that the constitutional right to the free functioning of an organised religious community and to the free profession of faith includes the freedom to decide on the “what” and “how” of the religion. They opine that religious rituals fall within the core of freedom of religion and of religious worship. The substantive definition of religious belief and the manner of its expression are allegedly inseparable. The petitioners draw attention to the fact that the substance of faith and religious worship must be established according to subjective criterion – by taking into account the self-determination and self-definition of the organised religious community and its believers.
 
3. In the opinion of the petitioners, there is no legitimate objective for prohibiting the ritual slaughter of unstunned animals. Allegedly, the state expressed merely in passing the argument as to the protection of animals from cruelty, and did not provide substantive grounds therefor. The petitioners consider the “cultural conditioning” of the substance of the free functioning of a religious community and the freedom to privately and publicly profess religious beliefs to be inconsistent with Articles 7 and 41 of the Constitution. Allegedly, the state can thereby only achieve that Muslims in Slovenia will perform their rites abroad. Allegedly, Muslims in Slovenia who consider and experience the ritual slaughter of unstunned animals to be a component of their religion are treated unequally under the challenged provision.
 
4. The petitioners stress that ritual slaughter is carried out professionally, in a controlled manner, and in an authorised facility. They opine that the Constitution does not contain provisions on the specific legal protection of animals, and even less do animals enjoy constitutional rights. Allegedly, the constitutional order is based on the concept of animals’ well-being, which only protects animals from unnecessary damage, pain, and suffering. The petitioners refer to the case law of the Federal Constitutional Court of the Federal Republic of Germany (hereinafter referred to as the BVerfG). The petitioners draw attention to the fact that it is only legitimate to discuss special, [allegedly] animal-friendly, methods of carrying out slaughter. They express concerns as to the traceability and appropriateness of religiously suitable meat products that are available in supermarkets for Muslims in Slovenia. In the assessment of the petitioners, the challenged provision does not follow from the legal order of the European Union (hereinafter referred to as the EU) and does not entail harmonisation with the legislation of comparable European states.
 
5. The petitioners present a brief selection of positions from the veterinary literature from which it allegedly follows that a correctly carried out ritual slaughter without stunning can be painless and that, from the aspect of the suffering of the animal, it does not differ significantly from slaughter after stunning. With respect to the freedom of the functioning of religious communities, the petitioners refer to specialist literature and (above all) to Decision of the Constitutional Court No. U-I-92/07, dated 15 April 2010 (Official Gazette RS, No. 46/10, and OdlUS XIX, 4). They claim that the state must not assess the value acceptability of the substance of a faith.
 
6. The National Assembly submitted a reply to the petition. It stresses that the purpose of the challenged provision is to prevent the unnecessary suffering of animals during slaughter. It states that the protection of animals is imposed by the Constitution. Allegedly, the second paragraph of Article 25 of the APA does not interfere with the rights of the petitioners determined by Article 7 and 41 of the Constitution. In the opinion of the National Assembly, it cannot result in Muslims in the Republic of Slovenia not consuming meat acquired in accordance with religious rules. If the availability of meat acquired through the slaughter of unstunned animals is poor, it is allegedly not the state that is responsible. Allegedly, the second paragraph of Article 25 of the APA does not prohibit the import of meat acquired in accordance with the religious rules to which the petitioners refer.
 
7. The Government submitted an opinion as regards the petition. It states that Council Regulation (EC) No. 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ L 303, 18 November 2009 – hereinafter referred to as the Protection Regulation) allows Member States wider protection of animals in the field of ritual slaughter. The Government draws attention to the fact that in the thirteen years during which the previous regulation was in force (which allowed exceptional permission for ritual slaughter without stunning), only one application for such manner of slaughter was submitted. Allegedly, multiple slaughterhouses with a halal certificate are operative in the Republic of Slovenia.[1] The Government advocates that a distinction should be made between the performance of ritual slaughter, on the one hand, and the consumption of meat and other products made from animals slaughtered in accordance with religious rules, on the other. Since the petitioners allegedly do not perform the registered activity of processing food products, it allegedly does not demonstrate legal interest for a review of the constitutionality of the rules regulating ritual slaughter. As regards the consumption of halal[2] meat, the Government claims that the challenged regulation does not prevent the import thereof from EU Member States or third countries. In practice, due to the issued certificates, also Slovene food processors can allegedly ensure a supply of these products. Allegedly, states should not interfere with private-law systems for the certification of these products precisely in order to secure the autonomy of religious communities.
 
8. Allegedly, the second paragraph of Article 25 of the APA does not limit religious freedom. It is allegedly motivated by protection of the well-being of animals. The Government describes in detail the available methods and techniques for slaughtering animals and the main risks to the well-being of animals during slaughter (i.e. the pain and the infliction of fear in conjunction with the duration of the period until the animal loses consciousness). Allegedly, scientific research shows that, during slaughter, animals experience tremendous pain, which cannot be entirely avoided by merely choosing the correct tool and method of slaughter. The purpose of stunning prior to slaughter is allegedly to ensure that while carrying out the slaughter the animal is unconscious and does not feel the pain. The Government explained the difference between stunning methods that cause immediate death and simple stunning methods  that must be followed by a special slaughter procedure (usually by bleeding to death); the latter can either be irreversible (i.e. the animal can no longer wake up from unconsciousness and would, after a certain period of time, die merely due to the application of the stunning technique – even without bleeding to death) or reversible (if the animal does not bleed to death, it could become conscious again and function normally). In any event, according to the Protection Regulation, stunning should always cause the momentary loss of consciousness before the brain is able to feel the pain. In connection therewith, the Government underlines that animals that are not stunned prior to slaughter lose consciousness much later (on average, after more than a minute and in certain instances even more than two minutes after their neck has been cut). This is the extra amount of time during which the animal is exposed to pain, fear, and stress related to its slaughter. The Government alleges that the petitioners either incorrectly quote specialist literature or refer to outdated or otherwise deficient literature.
 
9. The Constitutional Court served the reply of the National Assembly and the opinion of the Government on the petitioners. Only one petitioner, namely the Slovene Muslim Community, responded. It explains that it considers two out of seven halal certificates disputable. It describes how Muslims in Slovenia have to go to Croatia during Kurban Bayram in order to obtain halal meat from a slaughterhouse located there. It expresses doubt as to whether it is possible to scientifically precisely measure the amount of pain that animals experience.
 
 
B – I
 
The Procedural Requirements and the Scope of Assessment
 
10. In light of the content of their petition, the petitioners in fact only challenge the part of the second paragraph of Article 25 of the APA that reads as follows: “Notwithstanding the fourth paragraph of Article 4 of Regulation 1099/09/EC, the stunning of animals must also be carried out in ritual slaughter.” They challenge the mentioned provision because by preventing the performance of Islamic religious slaughter in the Republic of Slovenia, i.e. slaughter that under Islamic rules must be carried out without stunning (hereinafter referred to as ritual slaughter), it allegedly prevents Muslims living in Slovenia from enjoying a supply and consumption of halal meat on a daily basis, and [in particular] on the occasion of Kurban Bayram.[3] Hence, the petitioners dispute the regulation that, in accordance with point c of the second paragraph of Article 26 of the Protection Regulation, departs to a permitted degree from the fourth paragraph of Article 4 of the Protection Regulation[4] and the requirement of the first paragraph of Article 4 of the Protection Regulation[5] – and thereby also extends the requirements of all rules determined by the Protection Regulation that regulate the stunning of animals before slaughter to all slaughter in slaughterhouses, without an exception for ritual slaughter. The petitioners allege, mutatis mutandis, that in accordance with the Constitution, Muslim believers have the possibility to obtain halal meat from slaughterhouses in Slovenia both for consumption on a daily basis, and, on the occasion of Kurban Bayram, for consumption and the appropriate division of the meat into thirds (see Paragraph 14 of the reasoning of this Decision).[6] In their opinion, this can be achieved by abrogating the challenged prohibition on slaughtering unstunned animals insofar as it also applies to Islamic ritual slaughter. 
 
11. All of the above entails that the petitioners propose a review of the constitutionality of the second paragraph of Article 25 of the APA insofar as it requires the prior stunning of animals as regards slaughter in slaughterhouses,[7] without an exception for ritual slaughter[8] carried out in accordance with the Islamic religion.[9] [10]
 
12. The two petitioners are a religious community whose objective is to preserve Islamic values and a natural person who is a Muslim. Anyone who demonstrates legal interest may lodge a petition for the initiation of a procedure for the review of constitutionality (the first paragraph of Article 24 of the Constitutional Court Act, Official Gazette RS, No. 64/07 – official consolidated text and 109/12 – hereinafter referred to as the CCA). In accordance with the second paragraph of the cited Article, legal interest is deemed to be demonstrated if a regulation or general act issued for the exercise of public authority whose review has been requested by the petitioner directly interferes with his or her rights, legal interests, or legal position. Since the petition was filed by two petitioners, in order to fulfil the condition of having a legal interest for a substantive review of the second paragraph of Article 25 of the APA, it would suffice that at least one of them demonstrates such legal interest. However, both petitioners, who allege an interference with their [right to] religious freedom, also enjoy this human and constitutional right.[11] The challenged provision regulates certain actions and conduct that according to the convincing allegation of the petitioners are a part of the system of obligations and prohibitions of the Islamic faith, or the Islamic faith has an influence thereon. Therefore, it is impossible to deny that there is a direct interference with their legal position.
 
13. The Constitutional Court accepted the petition to initiate proceedings for the review of the constitutionality of the challenged part of the second paragraph of Article 25 of the APA and, since the conditions determined by the fourth paragraph of Article 26 of the CCA were fulfilled, it proceeded to decide on the merits of the case.
 
 
B – II
 
The Substantive Starting Points and Some Methodological Issues
 
14. In cases such as the case at issue, the Constitutional Court cannot question the substance of religious teachings, rules, and beliefs such as they are presented in proceedings by members of a religious community. Firstly, it is irrelevant to the review of the Constitutional Court whether the presented religious regulations are adopted by all members of a certain religion or only individual groups or fractions within that religion.[12] Secondly, and even more importantly, the Constitutional Court inherently cannot be an arbiter in matters concerning religious teachings. In this respect, it must observe the autonomy of the religious community. Therefore, in the proceedings at issue, the Constitutional Court deemed the alleged content of the Islamic religious rules as true and authentic; the petitioners presented it in a substantiated and understandable manner as binding.[13] Consequently, the Constitutional Court proceeded from the assumption that (also) the following allegations of the petitioners plausibly represent the content of Islamic rules: that Islam only allows consumption of the meat of animals that were ritually slaughtered without being stunned beforehand, and that an integral part of the religious holiday Kurban Bayram is the slaughter of a sacrificial animal without prior stunning, after which one third of the meat obtained in such manner is distributed among the poor, one third among relatives, neighbours, and friends, and one third can be retained by the household that carried out or requested the slaughter of the animal.
 
15 The petitioners refer to Articles 7 and 41 of the Constitution in conjunction with Articles 1, 2, and 14 of the Constitution and Article 9 of the ECHR.
 
16. In paragraph 111 of Decision No. U-I-92/07, the Constitutional Court established the general methodological guidelines for deciding in cases in which questions relating to freedom of religion and the constitutional position of religious communities arise. When a statutory provision is challenged with regard to aspects that are simultaneously the content of some of the constitutional principles determined by Article 7 of the Constitution[14] and the right determined by Article 41 of the Constitution (in particular, with regard to the aspect of the right of religious communities to operate freely), first a review of conformity with Article 41 of the Constitution must be carried out. This right is the foundation of the entire regulation of the position of religious communities and has in this sense priority over constitutional principles that determine the position of religious communities in relation to the state. If the statutory measure passes the review of constitutionality determined by Article 41 of the Constitution, it is necessary to also carry out, within the framework of the allegations of the applicant or petitioner, a review of conformity with the first and second paragraphs of Article 7 of the Constitution, i.e. those aspects thereof that – although their origin and purpose are to protect the right determined by Article 41 of the Constitution – are not the direct content of that right. These are in particular the requirements as to the neutrality of the state and the equality of religious communities.
 
17. The reference of petitioners to Articles 1, 2, and 14 of the Constitution is so generalised and void that the Constitutional Court does not need to carry out a review from the aspect of the mentioned constitutional provisions.[15] With respect to Article 7 of the Constitution, the petitioners only invoke the aspect of the free functioning (i.e. autonomy) of religious communities, which is an independent component of the right determined by Article 41 of the Constitution (to which the petitioners also refer in this framework). The Constitutional Court thus established the conformity of the second paragraph of Article 25 of the APA with the first paragraph of Article 41 of the Constitution, which reads as follows: “Religious and other beliefs may be freely professed in private and public life.”
 
18. The mentioned provision (in conjunction with the second and third paragraphs of Article 41 of the Constitution) safeguards freedom of religion (freedom of conscience or religious beliefs). From the aspect of the outward manifestation of internal personal decisions (the so-called forum externum),[16] freedom of religion guarantees the right to the free profession of religious beliefs or religious affiliation (e.g. by spreading religious truth) and the right to the free exercise of one’s religious beliefs (i.e. the performance of actions that are an integral part of a religion – observance, ceremonies, rituals, other rules of conduct that follow from religious teachings, the fulfilment of religious duties, associating in communities, etc.).[17] Article 41 of the Constitution protects those types of conduct that are outwardly perceivable and to a significant degree connected with the religious beliefs of individuals, without which the freedom of religion of individuals becomes significantly compromised. Therefore, the generally binding and religiously neutral statutory obligations and prohibitions intended for the protection of other common human values entail a limitation of the human right at issue only when they refer to those manifestations of religious beliefs that attain the mentioned quality threshold. The obligations and prohibitions of conduct that do not attain the mentioned quality threshold cannot entail an interference with freedom of religion.[18]
 
19. Within freedom of religion, also the collective dimension thereof is protected; this encompasses the interaction between believers who share the same religious beliefs (in particular, in the form of rituals), with whom they associate in religious communities.[19] Not only individuals who compose religious communities, but also religious communities themselves have the right to freely and according to their own rules profess religious beliefs and perform religious rites.[20]
 
20 The first paragraph of Article 9 of the ECHR substantively ensures freedom of religion in an equal manner as the first paragraph of Article 41 of the Constitution. However, it should be borne in mind that the limitations on freedom of religion under the second paragraph of Article 9 of the ECHR are only admissible due to exhaustively stated objectives (i.e. public safety, the protection of public order, health, or morals, or the protection of the rights and freedoms of others). Therefore, when assessing the admissibility of the limitations on the right to freedom of religion determined by the first paragraph of Article 41 of the Constitution, it is necessary that the Constitutional Court take into consideration, in view of the fifth paragraph of Article 15 of the Constitution, stricter regulation of the admissible objectives due to which an interference with freedom of religion is admissible.
 
 
B – III
 
The Review of the Challenged Provision
 
21. The petitioners substantiate their claim as to the inconsistency of the second paragraph of Article 25 of the APA with the first paragraph of Article 41 of the Constitution with the allegation that the challenged provision prevents Muslims (those who concur with the religious position stated by the petitioners) from enjoying a daily supply and consumption of halal meat, as well as from a supply of halal meat for the occasion of Kurban Bayram, which is an Islamic religious holiday, in order to consume such meat or to divide it into thirds.
 
22. The Islamic faith as presented by the petitioners, within the framework of the rules of daily consumption of food, limits the consumption of meat to halal meat of animals that were slaughtered without prior stunning. Furthermore, Islamic religious significance is also found in the celebration of Kurban Bayram; as regards this [religious holiday], for the purposes of the present review, the petitioners (only) underline access to the meat of one sacrificial animal slaughtered without stunning once a year for every Muslim household, in order for the households to be able to use that meat in conformity with religious rules (consumption of one third and donation of two thirds). The petitioners demonstrated that these rules are significantly and essentially connected with Islamic affiliation. The Constitutional Court deemed regular consumption of the meat of animals slaughtered in conformity with Islamic rules and the consumption and donation of meat of animals slaughtered in such manner during Kurban Bayram to entail the fulfilment of religious duties that are reasonably connected with the essence of the religious belief at issue. Therefore, both are protected by the right to freedom of religion determined by the first paragraph of Article 41 of the Constitution.
 
23. The Constitutional Court accepted [the claim] that unhindered access to the meat of ritually slaughtered animals for the purposes of the daily consumption thereof and especially for enabling the full and unhindered celebration of Kurban Bayram in environments where believers live is an essential and significant part of the Islamic faith. The challenged provision hinders such access, as it results in Muslims being obliged to supply themselves with halal meat of animals that are ritually slaughtered without stunning abroad. Since the second paragraph of Article 25 of the APA hinders the fulfilment of key religious duties, it interferes with the freedom of religion of members of the Islamic faith.
 
24. A statutory regulation that interferes with a human or constitutional right is only constitutionally admissible if it is based on a constitutionally admissible objective. Furthermore, in accordance with the established constitutional case law, it is always also necessary to assess whether an interference, even if it pursues an admissible objective, is consistent with the principles of a state governed by the rule of law (Article 2 of the Constitution), namely with that principle that prohibits excessive interferences by the state (the general principle of proportionality). The Constitutional Court performs an assessment of whether the interference is possibly excessive on the basis of the so-called strict test of proportionality. This test comprises a review of three aspects: (1) whether the assessed interference is appropriate for attaining the pursued objective; (2) whether the interference is even necessary in order to attain the objective, and (3) whether the weight of the consequences of the assessed interference with the affected human right is proportionate to the value of the pursued objective or the benefits that will ensue as a result of the interference (the principle of proportionality in the narrower sense). Only an interference that passes all three aspects of the test is constitutionally admissible.[21]
 
25. The Government states that the well-being of animals is the constitutionally admissible objective of the assessed interference. Allegedly, slaughter without prior stunning causes animals significantly greater suffering than the slaughter of animals that were previously stunned. Allegedly, the reason for that is the longer period of time during which the unstunned animal remains conscious (two minutes or even longer). The time the animal is exposed to pain, stress, and fear is allegedly this amount of time longer.
 
26. The fourth paragraph of Article 72 of the Constitution determines that the protection of animals from cruelty shall be regulated by law. The protection of animals is regulated by the APA. The lack of normative regulation of the protection of animals would entail a violation of the fourth paragraph of Article 72 of the Constitution.[22] From the fact that the Constitution requires legislative regulation of the protection of animals, it logically follows that the protection of animals is a constitutionally protected value and that it entails the substance of the constitutionally admissible public interest, which can also justify interferences with human and constitutional rights (the third paragraph of Article 15 of the Constitution).[23] Actually, the Slovene constitutional order does not require that animals enjoy equal legal protection as human beings, but it does require that they be protected. The task of interpreting the fourth paragraph of Article 72 of the Constitution in accordance with tradition, the outlook of society, and the general level of development of social consciousness is, on the basis of the statutory reservation, conferred on the legislature and reflected in Article 3 of the APA. Therefore, in the Constitution it is prohibited, without a justifiable reason, to make animals suffer or to inflict illness or death thereon, or to cause them suffering that is avoidable without serious technical issues or disproportionate costs. The definition of the constitutionally required “protection of animals from cruelty” also includes the efforts of the legislature to prevent, ease, or alleviate unpleasant feelings of pain, stress, and fear that people cause animals. The Constitutional Court understands (the potentially very broad) term “well-being of animals” such that for the purposes of the present Decision this term refers precisely to the results of the mentioned endeavours – i.e. the protection of animals from cruelty.
 
27. The requirement that prior to slaughter animals be stunned stems from morals as an ensemble of rules that characterise and direct the interpersonal relations between people based of conceptions of good and bad.[24] In modern times, it is not possible to interpret morals so narrowly as to only assess in light thereof relations between people in the literal sense of the word, but not, for instance, the actions of people in relation to animals and the natural environment. In modern society, concern for the well-being of animals and nature is an aspect of morals.[25] In the context of the case at issue, a rule that protects living beings that can suffer from avoidable suffering protects public morals.
 
28. Within the framework of a review of the appropriateness of an interference with a right, the Constitutional Court reviews whether the interference can actually attain the pursued objective. Within the framework of the review of the necessity of the interference, the Constitutional Court reviews whether the interference is necessary in the sense that the same objective cannot be attained either without a measure in general or by means of a milder measure that would less intensively interfere with the affected right.
 
29. By claiming that there is no difference between slaughter without stunning and slaughter with stunning (taking into account the criterion of the suffering of animals), the petitioners oppose the conclusion that the interference with their freedom of religion is appropriate. If prior stunning does not reduce the animal’s pain and fear compared to professionally executed religious slaughter without stunning, then the obligation of prior stunning is incapable of attaining the objective (i.e. to secure the well-being of animals).
 
30. In matters of difficult scientific questions, the Constitutional Court cannot be an arbiter. The question of the perception of pain in animals is an expert question falling within animal physiology. In such matters,[26] the Constitutional Court must, on the one hand, grant the legislature[27] some leeway. On the other hand, such entails that it may only examine the appropriateness and necessity of the disputed measure for attaining the pursued objective (in a complex scientific or expert field) if from the claims in the petition it is manifest that the extreme limits of the legislature’s margin of appreciation were exceeded.
 
31. In view of the assessment conducted by the legislature (regarding which the Government reasonably explained in the reply to the petition that it was scientifically based and not, for instance, an entirely political decision), the petitioners failed to demonstrate that by stunning an animal prior to slaughter it is not possible to increase the well-being of the animal compared to slaughter without stunning, or that it is possible to obtain an at least equal effect with regard to the well-being of the animal in another manner (i.e. without an interference or by a milder interference with the freedom of religion of Muslims). As a result, the reviewed measure is appropriate and necessary for achieving the pursued objective.
 
32. In order to assess proportionality in the narrower sense, it is decisive whether protection of the well-being of animals (and thus also the protection of morals) outweighs the damage, i.e. that the second paragraph of Article 25 of the APA hinders the access of Muslims in the Republic of Slovenia – those who concur with the position expressed by the petitioners – to halal meat and thus interferes with their freedom of religion.
 
33. The protection of animals from cruelty (the fourth paragraph of Article 72 of the Constitution) is a constitutional value.[28] In practice, protection of the well-being of animals is ensured thereby as an important moral obligation. The APA establishes high criteria for the protection of animals in a generally binding, internally consistent, and religiously neutral manner. The second paragraph of Article 25 of the APA prohibits not only Islamic ritual slaughter but also any slaughter of unstunned animals in slaughterhouses (see paragraph 10 of the present Decision).
 
34. Within the framework of balancing proportionality in the narrower sense, the constitutional weight of the benefits gained from the second paragraph of Article 25 of the APA is great. The absence of the rule determined by the second paragraph of Article 25 of the APA in the legal order would signify that, in exception, unstunned animals can be slaughtered, which would expose animals to be slaughtered in such manner to additional pain, stress, and suffering from the moment their neck is cut to the moment they lose consciousness. On the other scale, however, access to halal meat is rendered more difficult, which has additional weight in conjunction with the importance of the donation and consumption of such meat during the celebration of Kurban Bayram in conformity with religious obligations. The consequences of the challenged provision for religious freedom are limited already due to its religious neutrality. Furthermore, access to halal meat is merely rendered more difficult for Muslims and not rendered impossible. According to the first petitioner, the ritual slaughtering of animals during Kurban Bayram can be ordered abroad.
 
35. The fact that the prohibition of the ritual slaughter of unstunned animals entails a prohibition on inflicting pain that can be prevented is of decisive importance in the process of balancing the benefits of the challenged limitation and the weight of the challenged limitation. Thereby, the challenged rule protects an important moral obligation in the Slovene cultural environment. Consequently, the state is permitted to prohibit conduct that is incompatible with the fundamental rules and the moral framework of the society, provided that concurrently it does not excessively interfere with the right to freedom of religion.
 
36. The challenged regulation therefore does not excessively interfere with the right to freedom of religion determined by the first paragraph of Article 41 of the Constitution. In view of the above, the second paragraph of Article 25 of the APA is not inconsistent with the Constitution.
 
 
C
 
37. The Constitutional Court adopted this Decision on the basis of Article 21 of the CCA, composed of: Dr Jadranka Sovdat, President, and Judges Dr Matej Accetto, Dr Dunja Jadek Pensa, Dr.Dr. Klemen Jaklič, Dr Rajko Knez, Dr Etelka Korpič – Horvat, Dr Špelca Mežnar, Dr Marijan Pavčnik, and Marko Šorli. The Decision was adopted unanimously. Judges Accetto, Jadek Pensa, Jaklič, Knez, Mežnar, and Pavčnik submitted concurring opinions.
 
Dr Jadranka Sovdat
President
 
 

[1] A halal certificate is a private document attesting that the meat has been acquired in a manner consistent with the rules of the Islamic faith.
[2] The expression “halal” designates that which is admissible or allowed under traditional Islamic law. In relation to meat, the Constitutional Court uses the word “halal” within the meaning of the practice that the petitioners deem consistent with the rules of the Islamic faith. In that sense, halal meat is the meat of animals that were slaughtered without prior stunning. Therefore, the fact that a slaughterhouse has a halal certificate does not necessarily imply that the meat [produced there] is halal meat as referred to by the petitioners and the Constitutional Court.
[3] The Slovene language does not have a special expression for the mentioned Islamic holiday of sacrifice, therefore the Constitutional Court – as well as the petitioners – use the Bosnian term (e.g., in Arabic, Eid al-Adha, in Turkish, Kurban bayrami, etc.).
[4] This provision determines that in the case of animals subject to particular methods of slaughter prescribed by religious rites, the requirement of prior stunning shall not apply provided that the slaughter takes place in a slaughterhouse.
[5] This provision determines that animals shall only be killed after stunning in accordance with the methods and specific requirements related to the application of those methods set out in Annex I of the Protection Regulation. The loss of consciousness and sensibility shall be maintained until the death of the animal. The methods referred to in Annex I which do not result in instantaneous death (i.e. methods of so-called simple stunning) shall be followed as quickly as possible by a procedure ensuring death such as bleeding, pithing, electrocution, or prolonged exposure to anoxia.
[6] On page 25 of the petition the petitioners explain that the religion restricts Muslims as to which type of food they may consume and prescribes which days in the year meat of a ritually slaughtered animal must be distributed among the poor, neighbours, and friends, and a part of it retained.
[7] In accordance with point (k) of Article 2 of the Protection Regulation, ‘slaughterhouse’ means any establishment used for slaughtering terrestrial animals which falls within the scope of Regulation (EC) No. 853/2004 of 29 April 2004 laying down specific hygiene rules for the hygiene of foodstuffs (OJ L 139, 30 April 2004).
[8] Actually, in point 30 of Article 5 of the APA, slaughter of an animal is defined as the killing of an animal for human consumption, whereas ritual slaughter is defined as the slaughter of an animal involving a religious ritual. The Protection Regulation defines a religious rite in point (g) of Article 2 as a series of acts related to the slaughter of animals and prescribed by a religion.
[9] In accordance with the Protection Regulation, and hence also in accordance with the second paragraph of Article 25 of the APA, stunning is always carried out beforehand (see footnote 5). Also in the Slovene legal order it is necessary to directly apply, on the basis of the principle of the primacy of EU law, the definition of stunning as set out in point (f) of Article 2 of the Protection Regulation (i.e. any intentionally induced process which causes loss of consciousness and sensibility without pain, including any process resulting in instantaneous death), and not the (substantively essentially similar) definition set out in point 12 of Article 5 of the APA, which entered into force prior to the accession of the Republic of Slovenia to the EU. 
[10] “Animals” within the meaning of point (c) of Article 2 of the Protection Regulation are vertebrate animals excluding reptiles and amphibians. In line with recital 11 and the second subparagraph of the first paragraph of Article 1 of the Protection Regulation, this Regulation only applies to fish to the extent that it determines the requirements laid down in the first paragraph of Article 3, i.e. that they shall be spared any avoidable pain, distress, or suffering during their killing and related operations (but it does not prescribe stunning prior to “slaughter”). Hence, the challenged regulation refers to mammals and birds.
[11] In paragraph 81 of Decision No. U-I-92/07, the Constitutional Court stated that the freedom to profess and practice one's religious beliefs is ensured to individuals and also religious communities or associations, regardless of whether they have a legal personality or not. In paragraph 91 of the mentioned Decision, it stated that also religious communities have the right to freely and in accordance with their own rules profess religious beliefs and carry out religious practices.
[12] Cf. Paras. 54 and 55 of BVerfG Judgment No. 1 BvR 1783/99, dated 15 January 2002.
[13] Cf. ibidem, Para. 56.
[14] These are the principle of the separation of the state and religious communities (the first paragraph of Article 7 of the Constitution), the principle of the freedom of activity of religious communities, and the principle of the equality of religious communities (the second paragraph of Article 7 of the Constitution). However, the principle of the separation of the state and religious communities determined by the first paragraph of Article 7 of the Constitution in the broader sense comprises three elements: (1) the religious or ideological neutrality of the state, (2) the autonomy of religious communities in their field of functioning, and (3) an equal attitude of the state towards all religious communities as regards their rights. The autonomy and equality of religious communities are in fact components of the broader principle of the separation of the state and religious communities, but they can also be considered separately and they are, accordingly, determined as special constitutional principles in the second paragraph of Article 7 of the Constitution (Paras. 95 and 99 of the reasoning of Decision No. U-I-92/07).
[15] See the insufficiently concretised reference of the petitioners to Articles 1, 2, and 14 of the Constitution (pp. 17 and 24 of the petition). On page 24 of the petition, as regards the principle of equality determined by Article 14 of the Constitution, the petitioners merely summarises the general position of the Constitutional Court in Decision No. U-I-92/07.
[16] In the present Decision, the Constitutional Court considers freedom of religion exclusively from that perspective.
[17] Decision No. U-I-92/07, Paras. 81 and 84 of the reasoning.
[18] Ibidem, Para. 84.
[19] Ibidem, Para. 87.
[20] Ibidem, Para. 91.
[21] Decision of the Constitutional Court No. U-I-18/02, dated 24 October 2003 (Official Gazette RS, No. 108/03, and OdlUS XII, 86), Para. 25 of the reasoning.
[22] Order of the Constitutional Court No. U-I-137/04, dated 9 September 2004, Paragraph 13.
[23] In Paragraph 25 of the reasoning of Decision No. U-I-52/16, dated 12 January 2017 (Official Gazette RS, No. 5/17), the Constitutional Court stated that in accordance with the established interpretation of the third paragraph of Article 15 of the Constitution, the public interest can be a separate, independent, constitutionally admissible objective of a limitation of human rights.
[24] Cf. the definition of morals in Slovar slovenskega knjižnega jezika [Dictionary of Slovene Literary Language] and in the lexicon of M. Pavčnik (Ed.), Pravo [Law], 2nd edition, Cankarjeva založba, Ljubljana 2003, p. 189. Cf. also M. Pavčnik, Teorija prava, Prispevek k razumevanju prava [Theory of Law: A Contribution to Understanding Law], 5th revised edition, Ius Software and GV Založba, Ljubljana 2015, p. 274, where it is stated that the interpretation of a law in practice must also necessarily be a moral act. If one is aware of that and recognises it, it is necessary that we do not disregard the natural differences between law and morals and act accordingly. It is also necessary that we only take into account generally accepted moral conceptions that can be categorised [...]. The morality of the law requires that one rise above individual cases and generalise them (the principle of equality!).
[25] C. M. Zoethout, Ritual Slaughter and the Freedom of Religion: Some Reflections on a Stunning Matter, Human Rights Quarterly, No. 3 (2013), p. 668.
[26] Also the BVerfG stated the same in Judgment No. 1 BvR 1783/99, Para. 39 of the reasoning, precisely as regards the doubts of the scientific community as to whether stunned animals are exposed to significantly less suffering and pain than unstunned animals; it stressed that as regards the assessment of the appropriateness and necessity of the means for achieving the legislative objectives, the legislature has a certain leeway (Einschätzungsspielraum) – also as regards the assessment of “the factual basis of the statutory regulation.”
[27] Both the Slovene legislature and the EU legislature. Not only the APA, but also the Protection Regulation stems from assessment of the appropriateness of prior stunning to relieve the distress of animals (although the Protection Regulation, once the balancing of interests is completed, in and of itself gives priority to the right to ritual slaughter).
[28] As regards an animal as an important value, see the significant monography N. Visković, Životinja i čovjek: prilog kulturnoj zoologiji, Književni krug, Split 1996.
 
 
U-I-140/14
14 May 2018
 
 
Concurring Opinion of
Judge Dr Marijan Pavčnik
 
 
COEXISTENCE OF CONSTITUTIONAL VALUES
 
The Slovene Constitution prohibits animal cruelty, and the baseline of its values is human dignity, on which the entire constitutional structure is built.[1] Human dignity requires us to also protect, insofar as possible, the well-being of animals.[2] “Humans are not responsible only for themselves,” wrote Tine Hribar, “but for all living beings.”[3]
 
Human dignity and the dignity (well-being) of animals are two values with different weights. On the one hand, in the name of human dignity we also have to be responsible for the dignity (well-being) of animals; on the other hand, protection of the well-being of animals is not absolute. On the principled level, it would be beneficial if also the Slovene legislation defined that an animal is not an object, as is included in the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch − ABGB) and in the German Civil Code (Bürgerlichen Gesetzbuch − BGB). Special rules apply to animals; rules about objects only apply thereto insofar as there are no special rules governing animals.[4] In principle, such implementation would be consistent with the Constitution and would only strengthen the conviction that cruelty to animals should be avoided as much as possible.
 
In the Slovene constitutional regulation, the protection of animals from cruelty is regulated by law (see the fourth paragraph of Article 72 of the Constitution), which must interpret cruelty (suffering) in a constitutionally consistent manner on a case-by-case basis. There is a variety of cases; often they are the result of tradition, civilisation, and the legal culture. Individual cases must be distinguished from one another if they significantly differ.
 
Knowing that, one should be even more sensitive when there is a conflict between the well-being of animals and the freedom to profess one’s religious beliefs (relating to different religions). In such a conflict, it cannot be stated a priori that one of the two values is so intense that the other must completely take it into account. Protection of the well-being of animals is constitutionally admissible all the way to the point where the interference with the profession of religious beliefs is such that it would render impossible its essential elements (see, in particular, points 23, 26, and 33–35 of the reasoning). It thereby enabled that both values that clashed coexist and are implemented within constitutionally admissible limits.[5] If there is no appropriate harmony, also human dignity, which is the baseline of constitutional values, is compromised.
 
Harmony among constitutional values has also a moral dimension to it. Also the second paragraph of Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms expressly refers to morals among the grounds for limiting freedom to manifest one’s religion. A moral rule must not force on others coexistence that only a part of society accepts. The moral conceptions that are referred to are those that are general and embedded in the constitutional and cultural environment. These values also include the well-being of animals, which is protected by the Animal Protection Act (hereinafter referred to as the APA). The principled starting point of the Act is that no one should cause the suffering, illness, or death of an animal without good reason (Article 3). One aspect of the prohibition of causing suffering is also obligatory stunning prior to ritual slaughter as determined by the second paragraph of Article 25 of the APA.
 
These are the main reasons why I voted in favour of the Decision and the reasoning thereof in the present case.
 
 
                                                          
                                                                                           Dr Marijan Pavčnik
                                                                                                      Judge
 

[1] See M. Pavčnik, Krhkost človekovega dostojanstva [The Fragility of Human Dignity], Pravnik, Nos. 9–10 (2011), pp. 533 et seq. Reprinted in: M. Pavčnik, Argumentacija v pravu [Argumentation in Law], 3rd edition, GV Založba, Ljubljana 2013, pp. 349−361.
[2] As regards animals being the subject of important values, see N. Visković, Životinja i čovjek, Književni krug, Split 1996. Cf. also S. Stucki, Grundrechte für Tiere, Nomos, Baden-Baden 2016, pp. 395 et seq.
[3] T. Hribar in: Gradivo za slovensko ustavo [Material for the Slovene Constitution], Časopis za kritiko znanosti, No. 108 (1988), p. 46.
[4] "Tiere sind keine Sachen; sie werden durch besondere Gesetze geschützt. Die für Sachen geltenden Vorschriften sind auf Tiere nur insoweit anzuwenden, als keine abweichenden Regelungen bestehen." (ABGB, Para. 285a, amendment from 1988; a substantively equal solution was also adopted in the BGB, Para. 90a, amendment from 1990.) Cf. M. Juhart in: M. Juhart, M. Tratnik, R. Vrenčur, Stvarno pravo [Property Law], GV Založba, Ljubljana 2007, p. 63.
[5] As regards the implementation (and coexistence) of constitutional values on a principled level, see the significant essay by A. Novak, Predpostavke načela sorazmernosti v ustavnosodnem odločanju [The Prerequisites to the Principle of Proportionality in Constitutional Judicial Decision-Making], in M. Pavčnik, A. Novak (Eds.), (Ustavno)sodno odločanje [(Constitutional) Judicial Decision-Making], GV Založba, Ljubljana 2013, pp. 103−181.
 
 
U-I-140/14
14 May 2018
 
 
Concurring Opinion of Judges Dr Matej Accetto, Dr Dunja Jadek Pensa, and Dr Rajko Knez, joined by Judge Dr Jadranka Sovdat
 
 
We concur that the second paragraph of Article 25 of the Animal Protection Act (hereinafter referred to as the APA) is not inconsistent with the Constitution, but we only concur to a certain extent with the reasons for such decision. In this concurring opinion, we wish to express our view regarding two things in particular: firstly, the question that the suffering of animals concerns, which is unavoidably present in every single process of their killing, and the responsibility of humans to refrain from actions that unnecessarily cause such suffering; and secondly, the search for the answer to the constitutional aspects related to this question within the framework of the constitutionally ensured freedom of religion, i.e. the aspects that the petitioners refer to. Our view on how to resolve this dilemma differs from the positions evident in the reasoning of the Decision.
 
 
I
 
The petition describes in detail ritual slaughter and its importance according to the religious teachings referred to by the petitioners. Without a doubt, the petitioners are striving to secure a space in which freedom of religion would be ensured in the process of killing animals in Slovene slaughterhouses, which would enable their religious rules, instead of the legislated ones, to be observed, and thereby also that the religious significance of ritual slaughter would be respected. However, it is not evident from the petition that the petitioners themselves would wish to carry out ritual slaughter in the territory of the Republic of Slovenia or to cooperate in carrying such out. This is where the understanding of the constitutional criticism in the petition as expressed in the decision stems from; the petition is focused on a specific unconstitutional effect of the challenged provision, which stems from the Constitution allegedly requiring “that Muslim believers have the possibility to obtain halal meat from slaughterhouses in Slovenia both for consumption on a daily basis, and, on the occasion of Kurban Bayram, for consumption and the appropriate division of the meat into thirds.”[1] Only in this sense can the challenged regulation – which is not insignificant for the supply of halal meat – concern the petitioners directly and personally, which is a condition for a petition to be admissible. Therefore, we concur with the understanding of the petition as follows from the decision, which in our opinion is crucial for determining the constitutional issue in this case. Therefore, as we understand it, it is necessary to reply to the claim in the petition that the challenged provision – contrary to the Constitution – prevents Muslim believers from obtaining halal meat from Slovene slaughterhouses (for daily supply and consumption, as well as for the occasion of Kurban Bayram, which is an Islamic religious holiday, in order to consume such meat or to accordingly divide it into thirds).
 
Furthermore, we concur that the mentioned criticism must be assessed from the aspect of the right determined by the first paragraph of Article 41 of the Constitution.[2] We also completely accept the positions expressed in Decision of the Constitutional Court No. U-I-92/07, dated 15 April 2010 (Official Gazette RS, No. 46/10, and OdlUS XIX, 4), which determine the substance of the mentioned fundamental freedom. We accept that from the perspective of the outward manifestation of internal personal decisions (the so-called forum externum),[3] freedom of religion guarantees the right to the free profession of religious beliefs or religious affiliation (e.g. by spreading religious truth) and the right to the free exercise of one’s religious beliefs (i.e. the performance of actions that are an integral part of one’s religion – observance, ceremonies, rituals, other rules of conduct that follow from religious teachings, the fulfilment of religious duties, associating in communities, etc.).[4] Furthermore, we concur that Article 41 of the Constitution protects those types of conduct that are outwardly perceivable and to a significant degree connected with the religious beliefs of individuals, without which the freedom of religion of individuals is significantly compromised. These two starting points determine the outward limits of the space that should enable the free expression of religious beliefs and that authorities are therefore obliged to respect. We also entirely accept the criteria that the Constitutional Court adopted in Decision No. U-I-92/07, namely for the assessment of religiously neutral statutory obligations and prohibitions that by striving for the protection of common human values can affect the co-determination of the space for implementing freedom of religion. Let us in this respect stress the Constitutional Court’s position that these norms only entail a limitation of freedom of religion when they refer to those manifestations of religious beliefs that are reasonably connected with the essence of religious beliefs and without which the freedom of religion of individuals becomes significantly compromised. Therefore, as follows from Decision No. U-I-92/07, obligations and prohibitions of conduct that do not attain this standard cannot entail an interference with freedom of religion.[5]
 
These criteria, which in the case at issue remained unchanged, were crucial to us. They were crucial because they tilted our assessment towards the position that the challenged provision in fact does touch upon the limits of the space of freedom to express religious beliefs, but because of that provision, in the circumstances of the case at issue, the free expression of religious beliefs (the so-called forum externum)[6] is not significantly compromised. Taking this criterion into account, we assessed that this provision does not entail a limitation of freedom of religion. To us, this was decisive in voting for the operative provisions of the Decision. In this part, our opinion essentially differs from that of our colleagues who saw a limitation of freedom of religion in the challenged provision. More on this follows below. Let us reiterate at this point that we understood – equally as stated in the Decision – that the petitioners claim that the challenged provision unconstitutionally prevents the supply of halal meat from Slovene slaughterhouses. Hence, in this part, our opinion does not diverge from the reasons stated in the Decision.
 
 
II
 
We concur with the majority that the APA introduced, in a religiously neutral manner, high standards regarding animal protection.[7] Furthermore, we concur that the challenged provision is religiously neutral. However, in contrast to the majority, we opine that the challenged provision of the second paragraph of Article 25 of the APA does not entail a prohibition that significantly reduces the free expression of religious beliefs. Not because we deny the significance that this provision has for the Muslims who live in the Republic of Slovenia and accept and practice the religious beliefs described in the petition, but because in our assessment this provision does not attain the required standard in accordance with the positions determined already in Decision No. U-I-92/07, which the Constitutional Court also this time accepted as the starting point of its review. As stressed by the National Assembly and the Government in their replies, the purpose of the challenged provision is to prevent the – in their opinion – unnecessary suffering of animals during slaughter and to protect the well-being of animals in this field of human conduct. The well-being of animals is a religiously neutral common human value whose constitutional foundation lies in the second sentence of the third paragraph of Article 72 of the Constitution, and also the reviewed Act is religiously neutral, including the provision of the second paragraph of Article 25 of the APA. Actually, this provision expressly regulates religious slaughter, but nevertheless it must be understood in conjunction with the fourth paragraph of Article 4 of the Protection Regulation,[8] which was adopted at the EU level and which as regards religious slaughter allows for a departure from the general rules on the slaughtering of animals. In such framework, the challenged provision, in accordance with the expressed intention of the legislature, expresses only that the Republic of Slovenia excludes the possibility of that exception; therefore, it cannot be understood as a provision that focuses on substance of a religious nature.
 
Actually, we concur with the petitioners that animals do not have constitutional rights, however they absolutely cannot be treated like objects, which in relation to humans only have an instrumental role and only serve their interests. The development of the legal protection of the dignity or well-being of animals, including the expressions of such value in the constitutional order, certainly is and will be a gradual and long process. One legal expression of this development is the principle of caution, which is a principle that has been important for a long time in the field of the protection of the environment,[9] and which has recently also been stressed in relation to the well-being of animals as sentient beings,[10] a principle in accordance with which the absence of complete scientific certainty is not a reason to postpone measures preventing serious threats to the protected value.[11] We thus consider the intention of the legislature concerning the slaughter of animals in slaughterhouses to limit the suffering of animals to the greatest extent during slaughter to be an expression of its decision regarding regulation of the legal protection of the well-being of animals that was adopted within the limits of its margin of appreciation.
 
What was important for our assessment of the challenged provision was that it is religiously neutral and based on a religiously neutral common human value. As such, in accordance with the above repeated starting points from Decision No. U-I-92/07, it would only entail a limitation of freedom of religion in the event it referred to those manifestations of religious beliefs that are reasonably connected with the essence of religious belief and without which the freedom of religion of individuals becomes significantly compromised.[12] For us, it was essential that due to the herein assessed effect of the challenged provision on the expression of religious beliefs this is not compromised, and certainly it is not significantly compromised. Allow us to explain.
 
In accordance with the allegations of the petitioners as is evident in the submitted applications and as they are also summarised in the Decision, the challenged provision prevents Muslim believers from obtaining halal meat from Slovene slaughterhouses for daily supply and consumption, as well as for the occasion of Kurban Bayram, which is an Islamic religious holiday, in order to consume such meat or to accordingly divide it into thirds. Hence, it only indirectly refers to the fulfilment of religious duties.
 
We do not deny that the challenged statutory provision may render the access of individuals to halal meat difficult to a certain extent. However, the import and sale of halal meat are not prohibited in the Republic of Slovenia – just the opposite is true; within the framework of respect for the rules of the internal EU market and taking into account the fourth paragraph of Article 26 of the Protection Regulation, the state even must allow such. Thus, this does not only concern the fact that access is currently possible, but that it is also ensured that a prohibition or limitation of such trade is not even allowed (except in the event of a possible change in the EU rules and then also in the rules of Slovenia [regarding such]). Hence, under the regulation in force, it is allowed that halal meat is also available in Slovenia to Muslims and other buyers. Even if that requires additional activities to organise and execute such importation, the tasks associated therewith, e.g. the supervision and traceability of the distribution and sale of halal meat imported in such manner, and the costs related thereto,[13] only have an indirect and insufficient connection[14] with the freedom of expression of religious beliefs insofar as is expressed in the consumption and offering of halal meat. Therefore, the challenged provision does not in any manner render either impossible or significantly difficult the performance of religious duties and thus the essential religious content of the freedom to express religious beliefs. In contrast to the majority, we do not see characteristics of a limitation of freedom of religion therein.[15]
 
 
III
 
The decision of the majority that the challenged provision interferes with the freedom of religion of the members of the Islamic faith necessarily required further constitutional review, in which it was necessary to decide on the question of the constitutional admissibility of the limitation. If we could accept these reasons for the Decision, then this part of the Decision would only further support the conclusion that the challenged provision is not inconsistent with the Constitution – with which we concur. However, we are restrained towards this part of the reasons of the Decision due to the reasons presented below. Hence, unfortunately, in our opinion they do not represent an additional substantiation that supports the operative provisions of the Decision.
 
We concur with the starting point of the Decision that the objectives that can justify an interference with freedom of religion in conformity with the second paragraph of Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the ECHR) are exhaustively enumerated.[16] As we understand it, these objectives express the significant importance of freedom of religion in a democratic society for an individual, his or her existence, and definitions that are beyond rationality. Believers and non-believers must (in very simplified terms) understand and accept two things: that religion essentially defines the identity of an individual and the essence of his or her existence, and that the religious beliefs of people diverge, as also holds true for the relation between the beliefs of believers and non-believers. It seems obvious that guaranteed freedom of religion encompasses the possibility of very different beliefs. Discordances between individuals who advocate different religious beliefs should be overcome precisely by the ensured freedom of religion and thus also the freedom to carry out actions that entail public or private professions of faith. This freedom should prevent struggles for the dominance (which are, unfortunately, often even violent) of one belief over others. An immanent characteristic of freedom of religion is the commandment to tolerate the freedom of others – those with different spiritual beliefs. The legislature must also observe this commandment, as it is obliged to ensure the protective area of the constitutionally guaranteed freedom of religion. Therefore, it is not surprising that the limitation of the free exercise of conduct that limits the private or public professions of faith in observance, teaching, practice, or religious rituals (cf. the first paragraph of Article 9 of the ECHR) must be based on values regarding which it is evident, in light of the circumstances of the individual case, that they are values of a higher rank (cf. the second paragraph of Article 9 of the ECHR). Both the substance of the goals determined in the second paragraph of Article 9 of the ECHR and the relation between these objectives and freedom of religion as ensured by the first paragraph of Article 9 of the ECHR are important. Namely, also these objectives protect the integrity of freedom of religion. They communicate that this freedom can only be limited if the limitation pursues a value that in the circumstances of the case is higher than that value.[17]
 
It must be taken into consideration that the objectives referred to in the second paragraph of Article 9 of the ECHR are defined abstractly. Whether the legislature in fact strives to achieve these objectives when it enters the field of the constitutionally ensured freedom of religion can only be established by a constitutional review in the given concrete circumstances. In such a review, we believe, it must be convincingly substantiated that the legislature pursued precisely such an objective. Such reasoning is nothing but the substantiation of values that are of higher rank than freedom of religion, which in a democratic society can have a greater importance for harmony than the constitutionally ensured freedom of religion.
 
 
IV
 
It is stated in the Decision that social morals are a constitutionally admissible objective for the established limitation of freedom of religion (see Paragraph 27 of the reasoning).
 
However, neither the National Assembly nor the Government claimed that the objective of the challenged mandatory norm was to prevent conduct that would be considered immoral in society. It is absolutely impossible to deduce from their allegations and substantiations that social morals guided them when they decided to adopt the challenged provision. In other words, there is no basis to conclude that it was precisely for reason of social morals that the legislature adopted the challenged mandatory provision, which renders the ritual slaughter of mammals and birds in slaughterhouses impossible.
 
The legislature surely thereby strove to reduce damage – i.e. the suffering that is caused by the human advantage over animals in every process of their deliberate killing. We believe that in such framework the legislature strove to achieve something good and in fact also did so. However, did it communicate thereby that rendering ritual slaughter in Slovene slaughterhouses impossible encompasses its opinion that exactly such regulation is necessary in order to protect social morals, which as the uncompromising arbiter of good and bad had already expressed that the intentional killing of animals without prior stunning is seen as immoral in society? In neither the allegations of the National Assembly nor those of the Government, nor in the circumstances of the case at issue did we find arguments supporting a positive answer to that question. Conversely, we alone can sooner find the reasons for a negative answer to the question raised.
 
The challenged provision only applies to procedures involving the intentional killing of mammals and birds in slaughterhouses (cf. Paragraph 11 of the reasoning of the Decision). In fact, by the letter of the law, the prohibition on the intentional killing of animals without prior stunning does not extend to the “slaughter of poultry, hares, and rabbits outside slaughterhouse for personal use” (from the second paragraph of Article 25 of the APA). Also the culling of animals from nature in accordance with regulations on hunting is permitted (cf. point (b) of the second paragraph of Article 15 of the APA). In this regard, hunting is not always focused on the necessity of culling animals from the perspective of values that are protected at a higher level than the responsibility of humans to refrain from actions that cause animals unnecessary pain. Furthermore, numerous practices relating to breeding[18] and transport[19] cause animals non-negligible suffering. In all such instances, the suffering of animals is an unavoidable part of the intentional actions of humans, with regard to which the prohibition thereof would often not even clash with a fundamental right. Do there really exist reasonable grounds for causing suffering and are these really instances where suffering is unavoidable?
 
Although by rendering ritual slaughter in slaughterhouses impossible the legislature definitely strove to reduce the suffering of animals in slaughterhouses that humans cause by their actions when killing them intentionally, we cannot pass on the realisation that this same legislature at the same time tolerates and expressly allows suffering that humans could also avoid. This means that the legislature expressly allows actions that are directly opposed to the responsibility of humans to refrain from actions that cause animals unnecessary suffering. Therefore, from the perspective of social morals, as understood in the Decision, the legislature is inconsistent. It allows actions by humans in relation to animals that significantly depart from the objective of protecting social morals that the challenged mandatory statutory provision allegedly pursues. Already this inconsistency in the legal order, which is determined at the level of ordinary law, in our opinion excludes the possibility that by [adopting] the challenged provision the legislature aimed at preventing conduct that is perceived as immoral in society by a mandatory norm. This does not mean, however, that we have doubts as to the sincerity of the legislature’s intention to create something good. However, we wish to draw attention to the dilemma of differentiation between the constitutional review of the objective pursued by the legislature and the challenged rule, and the interpretation of the purpose of an already adopted rule that in constitutional case law is part of judges’ margin of appreciation. This dilemma was with us in the process of decision-making in this delicate case and there was a divergence in respect thereof. In our opinion, the assessment of the constitutionally admissible objective of the challenged provision should be limited to objectives that motivated the legislature when it considered what the substance of the mandatory regulation that was to be drafted in the legislative procedure should be.
 
We opine that in the case at issue these objectives were absolutely not based on the protection of social morals as the basis for law, even if the legislature strove for something good. In our assessment, this is manifestly evident. In fact, the legislature, as was substantiated, tolerates and even expressly allows the intentional suffering of animals, which does not in any way seem to be unavoidable. Hence, by the challenged mandatory norm, the legislature only for the specific segment of the human treatment of animals that is hidden behind the walls of slaughterhouses partially diminishes causing harm to animals and in this way implements the responsibility of humans to refrain from actions that cause animals suffering, which, in its opinion, is unnecessary. Furthermore, the legislature – as is evident from the reply of the National Assembly and the opinion of the Government – assessed that the challenged provision does not even extend to the constitutionally protected field of freedom of religion. Such entails that by the challenged provision the legislature did not express that in its opinion the challenged mandatory norm entails a necessary limitation of freedom of religion in a democratic society. What is more, it is clear that it did not even address aspects as fundamental as the limitations that the constitutionally ensured freedom of religion imposes on legislative regulation. The legislature also did not consider choosing between freedom of religion and protection of the well-being of animals, which are two different types of values and which in the case at issue are in collision, as follows from the Decision. Instead of from the statements of the legislature, the mentioned line of argumentation is evident from the reasons of the Decision through interpretation of the purpose of an already adopted rule. These reasons are only focused on an already adopted rule to which these reasons attribute a moral dimension based on interpretation of its purpose. They do not take into account that the legislature did not even attempt to answer the question of whether the circumstances of the case at issue justify that the view of the majority regarding morals overrules the view of a minority. And yet this is precisely what is stated in the Decision. The view that ritual slaughter in a slaughterhouse is not an immoral act must give way because stunning animals before killing them in a slaughterhouse is a part of the predominant moral obligation in society. This is so even though, as follows from the Decision, this concerns the field of the constitutionally protected freedom of religion, which the Constitution ensures – also and predominantly – in order to protect the free expression of the religious beliefs of minorities.
 
However, the above stated does not mean that we deny the possibility of the moral dimension of the protection of animals from intentional actions of humans that go against the well-being of animals. Just the opposite is true. We also have no reservations concerning the starting point that the state must not limit exercise of the right to freedom of religion for moral reasons. The protection of morals is one of the objectives determined in the second paragraph of Article 9 of the ECHR that allow limitation of that right. What we do not concur with is the claim that it is proven that, in the circumstances of the case at issue, the morals of society is a value of higher rank that can justify limitation of the right to freedom of religion. Namely, it is prima facie evident that these same “morals of society” only call for the stunning of some animals while allowing the killing and suffering of animals outside the scope of the obligation to stun. The reasons stated in the Decision in this respect are thus not convincing to us. Namely, it is easy to find statutory provisions that completely clearly deny that which according to the Decision is supposed to be a part of the morals of society. To reiterate, those provisions even expressly allow actions by humans that the morals of society, as understood in the Decision, deem to be immoral. We cannot dismiss the impression that the legislature, if we follow the reasoning of the Decision, is either hypocritical or by being inconsistent it communicates that in fact it is unable to carry out an assessment of the challenged rule required by the moral dimension recognised in the Decision. We are reserved as to the assessment that, as we understand it, in this field of the legal regulation of the well-being of animals sets double standards as regards morals.
 
Unfortunately, the reasons in the Decision do not take into account the conflict between the two different types of moral goods, which, in view of the reasons stated in the Decision, oppose one another in the case at issue. It is precisely this conflict that should have been at the centre of the review of constitutionality once the position was taken that the challenged provision limits freedom of religion because it protects the morals of society. Furthermore, in the assessment as is evident in the Decision, the essential question that remained unanswered was whether the two moral goods in collision in the circumstances of the case at issue are even measurable and comparable in scope. Namely, it is expressly allowed in the legal order that humans inflict unnecessary suffering on animals, which the statutory provision assessed in the Decision prevents in only one area of the treatment of animals by humans.
 
As we understand it, the Decision entirely leans on the legislature already at the starting point of the strict assessment. When determining the content of the second sentence of the third paragraph of Article 72 of the Constitution, the Decision directly takes into account the content of Article 3 of the APA,[20] an essential part of which is the prohibition on causing animals to suffer without a justifiable reason. Taking statutory levels into account, specifically the APA, concurrently entails at the constitutional level accepting the assessment of the legislature as to when causing animals to suffer is justified and when it is not. Hence, if the statutory definition of cruelty to animals currently in force is raised to the constitutional level, does not it follow from such a starting point that the Decision at the constitutional level concurrently accepts the legislature’s assessment – expressed in the APA – in those instances in which the legislature expressly allows or at least tolerates inflicting suffering on animals, which is – as is explained in this separate opinion – avoidable and consequently does not seem to be justified? Notwithstanding the fact that the Decision does not provide an answer to that question, it (only) proceeds directly, when determining the constitutionally admissible objective, from the second paragraph of Article 25 of the APA and recognises the constitutional dimension of the moral rule in the challenged statutory provision.[21]
 
Lastly, despite the fact that in the starting point of the Decision it is deemed, without reference in any manner to the criteria determined by Decision No. U-I-92/07, that the challenged provision limits freedom of religion, the Decision nevertheless takes into account these criteria when assessing proportionality in the narrower sense. It takes into account that the consequences of the challenged provision for freedom of religion are limited because the provision is religiously neutral, and access to halal meat is only rendered more difficult, not prevented.[22] Such indicates that also in the Decision the limitation is considered non-invasive, perhaps even marginal, which substantiates the admissibility of the limitation. The position in the Decision that the challenged provision entails a limitation of freedom of religion is indeed opposed to the position of the authors of this separate opinion, however, at the same time, the position regarding the marginal character [of the provision] is relatively common to all of us. The only difference is that, taking into consideration the criteria determined in Decision No. U-I-92/07, the measure, in our opinion, does not even clash with this fundamental freedom due to its marginal importance for the exercise of freedom of religion and thus does not have the characteristics of a limitation of freedom of religion, while in the Decision the marginality of the interference is understood as an important argument for the conclusion that the interference is constitutionally admissible. Therefore, in the result – i.e. the operative provision – there is no difference, but there is a significant difference in the reasoning thereof.
 
 
V
 
In this separate opinion we have attempted to substantiate our disagreement with the majority, particularly regarding two aspects: (1) first of all, by assessing, as explained above, that the challenged statutory provision, in conformity with the starting points of Decision No. U-I-92/07, does not even entail an interference with the freedom of religion of the petitioners; (2) secondly, by voicing reservations regarding the reasoning of the Decision that if there were an interference with freedom of religion, that interference would be justified, in the circumstances of the case, by the morals of society, as is stressed in the Decision. At first glance, the substantive difference in the assessment of the concrete provision is small: both according to the reasoning in the Decision and in our assessment, the provision at issue only has a marginal influence on the practice of the religion of the petitioners; however, according to the reasoning in the Decision, it is precisely the marginal character of the limitation that is decisive for the admissibility of the limitation of freedom of religion, whereas, in our opinion, the indirect influence on freedom of religion is so marginal that it does not even entail an interference.
 
Nevertheless, there is a significant difference between the two approaches, and there may also be differences in the understanding of that difference. This difference concerns the question that substantively completes and connects both our reservations, which are summarised above: What constitutional importance do the first and second approaches attribute to freedom of religion as a fundamental freedom? Perhaps it could be deduced from the Decision that from the perspective of delineating the scope of the protection of freedom of religion it is more correct that even where the statutory regulation is religiously neutral, (almost) any influence, even if marginal and indirect, be attributed the character of a limitation of the fundamental freedom at issue and then be subjected to a strict constitutional review. However, in our assessment, the opposite is true. We believe that one should be careful when determining the outward limits of the space in which freedom of religion is exercised, as the assessment of a limitation of that fundamental freedom is and must be – as we understand it – strict due to its constitutional importance, with regard to which it is strict already when determining the constitutional admissibility of the objective of the limitation concerned. The way we understand it, the criteria referred to in Decision No. U-I-92/07 appropriately determine these outward limits when [this space in which freedom of religion is exercised] comes up against a religiously neutral statutory provision that deals with freedom of religion. However, if, in contrast, the outward limits were to be determined in an extensive manner, but then when the constitutional admissibility of a limitation of freedom of religion is assessed this limitation were assigned an inferior position with respect to the well-being of animals or the morals of society derived therefrom – although the implementation of these same morals is not required in numerous other fields, also such where they would not even clash with freedom of religion or any other fundamental right –, the constitutional importance of freedom of religion would be rather devalued, in our view.
 
To conclude, we strongly stress once again that we do not wish to deny the importance of freedom of religion or its constitutional protection. Just the opposite is true. However, after having assessed the concrete circumstances [of the case at issue], we wish to remain faithful to those starting points in accordance with which in our assessment the case at issue does not even contain a limitation of freedom of religion, which would require a strict review of its constitutional admissibility.
 
 
                                                                                   Dr Matej Accetto
                                                                                              Judge
 
 
                                                                                  Dr Dunja Jadek Pensa
                                                                                              Judge
 
 
                                                                                      Dr Rajko Knez
                                                                                              Judge
 
 
                                                                                  Dr Jadranka Sovdat
                                                                                              Judge
 

[1] Cf. Para. 10 of the reasoning of the Decision.
[2] Cf. Para. 17 of the reasoning of the Decision and the first sentence of Para. 20 of the reasoning of the Decision.
[3] In the case at issue, the Decision of the Constitutional Court assesses freedom of religion exclusively from this perspective.
[4] Decision of the Constitutional Court No. U-I-92/07, Paras. 81 and 84 of the reasoning.
[5] Ibidem, Para. 84.
[6] If the Constitutional Court believed that the question of forum internum, i.e. an important personal internal or intimate aspect of a religious belief, were at issue, this would have called for a different starting point for the review of the petition. As is evident from Sections IV and V of this opinion, we concur with the reasoning stated in the Decision that the effects of the measure at issue are marginal, which distances the measure from the so-called forum internum. However, the Decision, in contrast to the authors of the opinion, uses the marginality of the influence of the measure on the forum externum as a reason to justify the interference, whereas we, the authors of this opinion, see in it an argument supporting the conclusion that an interference with the free expression of religious beliefs did not even occur. This is one of the essential arguments of the opinion.
[7] Cf. Para. 33 of the reasoning of the Decision.
[8] Council Regulation (EC) No. 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ L 303, 18 November 2009).
[9] It was included, inter alia, as one of fundamental principles in the non-binding Declaration on Environment and Development, U.N. Doc. A/Conf. 151/26, Vol. I (1992), adopted on 12 August 1992 at the UN Conference on Environment and Development in Rio de Janeiro.
[10] See, e.g., J. Birch, Animal Sentience and the Precautionary Principle, Animal Sentience, 2(16)/2017, pp. 3–5. Also Article 13 of the Treaty on the Functioning of European Union (the TFEU) determines that animals are sentient beings, but it is not intended to interfere with religious rites, cultural traditions, or regional heritages. From the perspective of the nature and limits of the competences of the EU, this can be understood, but this cannot diminish the importance of the opinion of the EU that animals are recognised as sentient beings, which is a reflection of the development and condition of society in Europe. The provision in the TFEU was adopted in 2007 and entered into force in 2009.
[11] For a general overview of the early legal development of the precautionary principle, see, e.g., N. de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, Oxford 2002, pp. 91–223, which also includes arguments for the position (on pp. 315–319) that the precautionary principle should be recognised already in 2002 as a binding principle of customary international law. The precautionary principle is important in all those cases in which it is not possible to predict or prove a certain risk with certainty but in which there exists sufficient doubt or uncertainty. It suffices that a risk is presupposed. In such instances, authorities are allowed to intervene so as to prevent the risk. This entails following the deontological approach to regulating legal relations. Viewed in such manner, this principle benefits animals and is in synergy with the perception that animals are sentient beings.
[12] Legal science assesses that it also follows from the case law of the ECtHR – which on the basis of Article 9 of the ECHR (freedom of religion), as a general rule, recognises neutral laws priority before individuals’ freedom of conscience – that special assessment of whether there exists a justified reason for the existence of a religiously neutral act is unnecessary, as the freedom of thought, conscience, and religion is not directly limited thereby – cf. A. Power-Forde, Freedom of Religion and "Reasonable Accommodation" in the Case Law of the European Court of Human Rights, Oxford Journal of Law and Religion, 5/2016, p. 589.
[13] Cf. Opinion of Advocate General Wahl in C‑426/16 Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen, dated 30 November 2017, ECLI:EU:C:2017:926, Paras. 79 and 80, who in this respect also refers, mutatis mutandis, to the ECtHR Judgment in Association Les Témoins de Jéhovah v. France, dated 30 June 2011, Para. 52 of the reasoning, and the case law cited therein.
[14] When the authorities exercise supervision over meat (or other) products as supervision over respect for various (e.g. phytosanitary) rules on the market (to the benefit of consumers), this is part of a systemic and proportionate interference with the functioning of the market. Naturally, it is more difficult for individuals to carry out supervision measures. Normally, consumer associations can assist them in this endeavour, but they would encounter the same question of supervision also in the event religious slaughter is carried out in Slovene slaughterhouses. It is also not excluded that in states that export halal meat there already exists supervision and that for the purposes of distribution also Slovene importers will demand proof that the meat they are buying is halal meat.
[15] Cf. the ECtHR Judgment in Cha‛are Shalom Ve Tsedek v. France, dated 27 June 2000, Paras. 80 through 83 of the reasoning.
[16] Cf. Para. 20 of the reasoning of the Decision.
[17] In the search for tolerance, also the framework of mandatory norms is not irrelevant, which is a reflection of admissible conduct and limits the interpersonal law of believers. For example, notwithstanding the fact that a certain religion allows polygyny, the state prevents it by a mandatory norm. In such manner, the mandatory norm also represents a reflection of the situation in society and the required relations. Hence, this is not only a question of tolerance (which is the attitude of (or towards) those of a different religious affiliation), but also of the attitude of the legislature towards all religions; it is social acceptability that dictates this relation. The social acceptability at least partially also reflects the tolerance towards those of a different religious affiliation, as these two are interconnected; however, this connection is not absolute. In concrete circumstances, social acceptability can also pursue some other value that outweighs tolerance as a value.
[18] A special report on the well-being of animals drafted for the European Parliament notes that body disorders resulting from the fast growth caused by genetic selection and ad libitum food provision during the growing period of broiler chickens – of which there are approximately four billion in the EU – are among the most harmful practices, along with causing dairy cows numerous bodily, reproductive, and other disorders, as well as numerous harmful practices (caused by forced reproduction, nutrition, crowding, etc.) when growing different animals for economic and other purposes – see D. M. Broom, Animal Welfare in the European Union, Policy Department for Citizens’ Rights and Constitutional Affairs, Brussels 2017, pp. 49–52.
[19] See, e.g., the expert analysis on the risks for the welfare of animals during transport in the EFSA Panel on Animal Health and Welfare, Scientific Opinion Concerning the Welfare of Animals during Transport, EFSA Journal, 9(1):1966, 2011. On the basis of this analysis, also the European Commission in its report to the European Parliament and the Council on the Effect of Council Regulation (EC) No. 1/2005 on the protection of animals during transport, dated 10 November 2011, COM (2011) 700, p. 12, notes that this Regulation is not entirely in line with current scientific knowledge and that, furthermore, due to different interpretations thereof and a lack of supervision, its appropriate implementation remains the main challenge.
[20] Cf. Para. 26 of the reasoning of the Decision.
[21] Cf. Para. 27 of the reasoning of the Decision.
[22] Cf. Para. 34 of the reasoning of the Decision.
 
 
U-I-140/14        
14 May 2018
 
 
 
Concurring Opinion of Judge Dr Špelca Mežnar
 
 
1. The question that we had to answer was: Does the Constitution allow the legislature to prescribe the obligatory stunning of all animals before slaughter in slaughterhouses without exception for (Islamic) ritual slaughter? Our unanimous answer is affirmative.
 
2. Decision-making in this case forced us to learn in more detail the circumstances and processes prior to the slaughter of animals and during slaughter in slaughterhouses. Much of the information is unpleasant. Since decisions regarding animals are necessarily connected with our personal choices in life, I find it proper to state that I consume animal meat.
 
3. I agree with the reasoning of the Decision. I will add thereto several considerations regarding the circumstances that were decisive for me to vote in such a way.
 
The Well-being of Animals during Slaughter
 
4. The notion of “well-being” (dobrobit, bien-être, bienestar, bem estar, benessere, Wohlergehen) refers to living beings, including animals and people. It signifies a degree of harmony between a living being and its environment, an ability by which an animal reacts to its environment. The well-being of animals is scientifically measurable and extends from very high to very low. If an animal is able to affect its mental and physical stability, its well-being is greater, and vice versa.[1] The well-being of grazing cows in the summer on a mountain pasture is therefore greater than the well-being of pigs that are crowded in farms.
 
5. Our Decision (only) refers to a specific moment in the life of animals, namely the end of life, by slaughter in a slaughterhouse. At that point, there are no (longer any) differences as regards well-being. It is actually ironic, even paradoxical, to speak of the well-being of animals during slaughter in a slaughterhouse. Nevertheless, it is not completely senseless. If an animal has to be slaughtered, its well-being is at least a little higher if it suffers less during the slaughter (due to being stunned).[2]
 
6. This and only this is the message of our Decision. The Decision does not address the issues regarding intensive livestock farming, the pollution of the environment, and the excessive consumption of meat.[3] It will not contribute at all to the diminution of environmental issues, which are a (negative) consequence of intensive livestock farming.[4] The well-being of animals in Slovenia will not be significantly greater as a result of our Decision. It is only a small piece in the mosaic of much bigger pieces, which at some point in the future will represent (more) important steps towards animals (and probably people as well) enjoying a good life.
 
7. But, as already stated – every step counts, even a step as small as the absolute obligation that animals be stunned prior to being slaughtered. This is why I was able to support the Decision.
 
The Availability of Halal Meat in Slovenia
 
8. The fact that in the case at issue tipped the scales in favour of the benefit of animals was the possibility of obtaining halal meat from abroad. Muslims in Slovenia can buy the meat of animals that were not stunned prior to slaughter also in Slovenia. The import of halal meat is not prohibited.[5] However, it is prohibited that such meat “is produced” in Slovene slaughterhouses. Hence, Muslims are not at a disadvantage as regards the consumption of halal meat; their only disadvantage lies in the fact that halal meat from Slovene slaughterhouses is unavailable. Since the number of disadvantaged people (within the meaning of the principle of proportionality) is relatively small, I concur with the conclusion that the protection of animals prevails.
 
9. Also from the following data I conclude that the existing regulation does not pose a particular problem for Muslims: during the period in which the previous regulation was in force, which allowed ritual slaughter without stunning, subject to prior approval by the Veterinary Administration, in thirteen years only one such application was filed (it was dismissed). It was filed by the first petitioner [in the present case], the Slovene Muslim Community, Ljubljana.
 
The Case Law of the ECtHR
 
10. The result of our Decision is in conformity with the positions of the European Court of Human Rights (hereinafter referred to as the ECtHR). In June 2000, the ECtHR assessed, from the perspective of freedom of religion (Article 9 of the ECHR), precisely the inability to carry out ritual slaughter.[6] The case concerned a minority orthodox Jewish sect whose religious rules required the so-called shechitah slaughter of animals.[7] Although the case is not completely identical (France allowed an exception for ritual slaughter, but the complainant did not obtain a permit therefor), the essence of the decision is the same: legal rules on ritual slaughter concern freedom of religion. However, an interference therewith only occurs if believers do not have the possibility to consume glatt meat.[8] Since the import of glatt meat from Belgium into France was possible and such meat was in fact available in France, there was no interference with freedom of religion.[9]
 
11. The Slovene Constitutional Court took a somewhat different approach towards the assessment than the ECtHR. The latter stopped at the realisation that due to the possibility to import meat, there was no interference with a right at all. Conversely, the majority of Slovene judges opined that the statutory prohibition of ritual slaughter nevertheless interferes with freedom of religion. The consequence thereof was the following step – the test of proportionality, which in Ljubljana led to a result that was the same as in Strasbourg. A decision in favour of the first (the ECtHR) or second (our) approach is more a matter of feeling than firm rules; the key argument (that access to halal meat in Slovenia or glatt meat in France is available) of both decisions is namely the same.
 
12. Also a broader [comparative] review of the case law shows that the ECtHR recognises states a considerable margin of appreciation when they regulate the rules of common life in society by religiously neutral rules.[10]
 
13. In Osmanoglu and Kocabas v. Switzerland (judgment dated 10 January 2017), a primary school required that a girl (prepubescent) with Muslim parents participate, despite their opposition, in a swimming course together with other children, including boys. When substantiating why the requirement of the school has priority over freedom of religion, the ECtHR drew attention, inter alia, to the special role of school in the process of social interaction, in particular when foreigners are concerned. A swimming course is not only about learning to swim, but above all about equally participating in this activity, regardless of the origin of the children or the religious or philosophical beliefs of their parents.
 
14. In Kosteski v. Macedonia (judgment dated 13 April 2006), a fine was imposed on an employee because he was absent from work on a day that was a Muslim holiday without the prior approval of the employer (and without notice). The ECtHR assessed that the interference with freedom of religion was not disproportionate in the circumstances at issue. It is namely not unreasonable for an employer to impose a disciplinary sanction on an employee who is absent without approval and without justification.
 
15 In Francesco Sessa v. Italy (judgment dated 3 April 2012), the complainant was a believer of the Jewish faith and an attorney. When the court adjourned a hearing in criminal proceedings, in which the complainant was a participant as an attorney, to one of two possible dates, he complained that both dates were a Jewish religious holiday, and as a result his participation in the hearing would render it impossible for him to celebrate the holiday. The ECtHR dismissed the complaint, substantiating that the interference was not disproportionate. Namely, the public interest in ensuring effective court management and a trial in a reasonable period of time namely have priority over the complainant’s freedom of religion.
 
16. In the renowned case S.A.S. v. France (judgment dated 1 July 2014), the ECtHR assessed the prohibition on covering one’s face in public (the burqa ban) from the viewpoint of freedom of religion. It established that it was a proportionate interference, as it ensures living together (le vivre ensemble). A part of that value is also the possibility to interact with other people, which a covered face does not enable. The judgment triggered numerous reactions.[11] The ECtHR recently upheld such position in equivalent Belgian cases.[12]
 
Morals, Culture, and Religion
 
17. There are plenty of cases that concern Islam (and other minority religions in Europe). Therefore, the discussion of whether the described case law of the ECtHR conceals intolerance towards Muslims is legitimate.[13] [14]
 
18. In the Decision at issue, the well-being of animals (i.e. reducing suffering during slaughter) is positioned as a part of the morals of society in our cultural environment (Paragraphs 27 and 35 of the reasoning).[15] I fully concur with the position that also one’s attitude towards the environment and animals represents a part of today’s morals.[16]
 
19. However, such does not entail that a non-Muslim attitude towards animals is moral, whereas a Muslim attitude is immoral.[17] The Decision of the Constitutional Court is not a (moral) judgment on the Islamic religion. Our decision speaks of the fact that today and here it has become unacceptable for animals to be slaughtered in slaughterhouses unstunned. The legislature transposed this moral obligation into a legal rule. How affected some religions (the Islamic and Jewish faiths) are is a consequence of that obligation and not a reason therefor. It is precisely this significant difference that convinces me that the challenged rule is in conformity with the Constitution.
 
 
                                                                                          Dr Špelca Mežnar
                                                                                                   Judge
 
 

[1] Broom, M. Donald, Animal Welfare in the European Union, p. 14. Accessible at http://www.europarl.​europa.eu/RegData/et​udes/STUD/2017/58311​4/IPOL_STU(2017)583114_EN.pdf. See also Religious slaughter of animals in the EU, accessible at http://www.europarl.​europa.eu/RegData/bi​bliotheque/briefing/​2012/120375/LDM_BRI(2012)120375_REV2_EN.pdf.
[2] In fact, also the stunning procedure is distressing for animals. For more on this subject, see Kirbiš, Križman, Raspor Lainšček, Veterinarsko-sanitarni nadzor klavnih živali in mesa [Veterinary and Sanitary Supervision of Animals for Slaughter and Meat], Ljubljana 2013, pp. 22 et seq. Accessible at https://www.dlib.si/​stream/URN:NBN:SI:DOC-IRWDUFIR/98b78357-75f7-4af4-bac2-7ab3d426d0db/PDF.
[3] It also cannot and may not, as that was not the subject of our review.
[4] In 2016, approximately 44,400 tons of bovine meet, 29,000 tons of pig meat, 66,000 tons of poultry meat, 1,300 tons of sheep meat, and 300 tons of goat meat were produced in Slovenia. Breeders of laying hens collected approximately 387 million eggs in 2016. Breeders of dairy livestock collected approximately 634 million litres of cow milk in 2016. Home production of bovine meat increased by 15% in comparison with the year before, and the increase in live weight increased by approximately 7%. Also home production of pig meat was higher, namely by 10%. Statistical Office of the Republic of Slovenia, accessible at http://www.stat.si/s​tatweb/News/Index/66​71.NBN:SI:DOC-IRWDUFIR/98b78357-75f7-4af4-bac2-7ab3d426d0db/PDF.
[5] The import of halal meat is even obligatory under EU law.
[6] ECtHR Judgment in Cha‛are Shalom Ve Tsedek v. France, dated 27 June 2000.
[7] So-called glatt meat is obtained thereby, which members of that faith are permitted to consume. For more detail, see Paras. 19 and 32 of the reasoning of the ECtHR judgment.
[8] Paras. 80 through 83 of the reasoning of the ECtHR judgment.
[9] See also K. Henrard, Duties of reasonable accommodation on grounds of religion in the jurisprudence of the ECHR: A tale of (baby) steps forward and missed opportunities, I*CON No. 4/14 (2016), p. 975.
[10] For more detail and a critical view on the so-called “hands-off” approach of the ECtHR, see A. Power-Forde, Freedom of Religion and “Reasonable Accommodation” in the Case Law of the ECHR, Oxford Journal of Law and Religion, No. 5 (2016), pp. 575 et seq. See also the Overview of the ECtHR’s Case Law, accessible at https://www.echr.coe.int/Documents/Research_report_religion_ENG.pdf, Para. 15, p. 7.
[12] See the ECtHR Judgments in Belcacemi and Oussar v. Belgium, dated 11 July 2017, and Dakir v. Belgium, dated 11 July 2017.
[14] Also the Constitutional Court did not encounter for the first time an alleged interference with the rights of Muslims. In 2017 (No. U-I-67/14), the Constitutional Court decided on the constitutionality of the statutory regulation of national holidays. The petitioner (a member of the Islamic faith) alleged that the law determines that only Christian religious holidays are national holidays, therefore the members of other religious communities are discriminated against and their exercise of the right to the free profession of faith is rendered impossible. The Constitutional Court dismissed this allegation and held that this is a field in which the legislature enjoys a wide margin of appreciation.
[15] See also C. M. Zoethout, Ritual Slaughter and the Freedom of Religion: Some Reflections on a Stunning Matter, Human Rights Quarterly, No. 3/35 (2013), pp. 667, 668, and 672.
[16] As regards the complexity of the relationship between law and morals, see, e.g., G. Radbruch, Filozofija prava [The Philosophy of Law], Cankarjeva založba and Pravna fakulteta v Ljubljani, Ljubljana 2001.
[17] Islam requires the protection of animals and prohibits animal cruelty. Cf. P. Lerner and A. Mordechai Rabello, The Prohibition of Ritual Slaughtering (Kosher Shechita and Halal) and Freedom of Religion of Minorities, Journal of Law and Religion, No. 1/22 (2006/2007), p. 5.
 
 
U-I-140/14     
17 May 2018
 
 
 
CONCURRING OPINION
OF JUDGE DR.DR. KLEMEN JAKLIČ
IN DECISION NO. U-I-140/14 DATED 25 APRIL 2018
 
 
 
RITUAL SLAUGHTER IN THE CONSTITUTIONAL REGULATION OF SLOVENIA
 
In the assessment of the three judges who are writing a concurring opinion,[1] the case at issue did not concern an interference with the right to freedom of religion. The petitioners, who are directly affected by the prohibition of the halal ritual in Slovene territory, will have a very hard time understanding such a position. The position that there is no interference overlooks the fact that there is not merely a question regarding the right to regularly buy such meat from Slovene slaughterhouses, which in the circumstances of the common European market can be substituted by meat prepared in such manner anywhere within the common market, which is then also sold in Slovenia. Much more is involved than merely the limitation of regular purchases from a certain territorial source. It is a general statutory limitation that also has the effect of prohibiting the actual ritual of religious slaughter. In the religious sense, this is the very nucleus from which all the rest follows, including the purchase of such meat, its distribution, etc. Also Ibrahim (Abraham in Slovene) did not go between tents to get goat meat and did not trade in it with its people, but took a goat entangled in the bush and made a sacrifice to God by slaughtering the goat instead of his son. The God of Muslims, Jews, and Christians is one and the same. It is Ibrahim’s God who then ordered Ibrahim, as the originator of the faith, to slaughter a goat instead of his son, precisely because of his faith, which was, as demonstrated, even greater than what is most sacred in secular life (i.e. his love for his son). So, if some denominations have required such a religious ritual for millenniums, from the very beginning of the Islamic-Jewish-Christian faith, who can claim that the prohibition thereof throughout the territory of some state does not entail a limitation or an interference with such a ritual, or with the right to a faith? The petitioners will simply be unable to understand that supposedly there is no limitation or interference, and they will be right, not those Constitutional Court judges who are trying to explain that the case at issue does not even concern an interference with or a limitation of a right. It is right that the position of the three judges who are writing a joint separate opinion did not become the position of the Constitutional Court (only the operative provisions were adopted unanimously, the reasoning was not). The unnatural interpretation of the Constitutional Court that the prohibition of a ritual that is so central to this denomination does not even entail a limitation of a right would unavoidably modify this religious truth and its importance for the denomination at issue. Naturally, in a modern democratic society an entity that is merely a state institution and not an institution of truth may not and even cannot do that. This falls within the domain of faith itself, as long as religious beliefs are at issue that do not cross the limits of reasonableness.[2]
 
It is also not possible to justify in a formalistic way that [the measure] is not an interference with a right by arguing that the petitioners in their petition did not refer to the fact that also the ritual itself is limited (which would perhaps entail an interference with the right at issue), but only to a limitation of access to halal meat from Slovene slaughterhouses. In my opinion, such reinterpretation of the petition would not be argumentatively fair. The fact is that the petition is imbued with the meaning that the ritual is the nucleus of this religious obligation and that all the rest, including the purchase of such meat for regular consumption, is something that merely follows from such religious essence. In my assessment, anyone whose interpretation is different – arguing that in the petition it is only alleged that such purchase is limited and not the ritual itself as the religious essence – would not understand the religious content that is obvious to the petitioners and that permeates the petition. In this context, it must be added that the petitioners even expressly draw attention to such possible erroneous interpretation of their petition. On page 25 [of the petition] it is stated [beginning with the section heading]:
 
“The attempt to oppose in a simplified way the arguments of the Slovene Muslim Community and the expected counterarguments of the public, public administration, and daily politics, which are not necessarily constitutional arguments, but demonstrate a constitutionally disputable or constitutionally unacceptable manner of thinking of those who oppose the ritual slaughter of animals without stunning
 
1. ‘Your religious rights are not violated, as you are able to buy halal products in a supermarket.’
 
Such arguments are insulting and humiliating to the Islamic religious community and to Muslims in Slovenia. [...] During Kurban Bayram, the slaughter of animals and the distribution of thirds thereof is required, not the purchase of meat of suspicious origin in a supermarket.”
 
Hence, it is more than obvious that the petition even expressly refers to the fact that, naturally, there is not only the argument of the limitation of the purchase of meat, but primarily and above all the argument of the limitation of the ritual itself as the essence thereof from which only then there additionally follows the argument of purchase. Hence, the express position of (at least) three judges[3] supporting their assessment that in the case at issue there is no interference with a right, as supposedly there is only the question of the location of the source for the purchase [of meat] (with regard to which purchase in Slovenia is then possible), does not even possess the formalistic excuse that it is not stated in the petition that much more is at issue, namely the prohibition on carrying out the religious ritual itself in the territory of the state, which undoubtedly already limits the essence of the religious obligation. 
 
An interference with the essence of freedom of religion can only be constitutionally consistent when the legislature has a legitimate objective for such a limitation. The reasoning of the majority in Paragraph 27 of the Decision, modelled on the second paragraph of Article 9 of the ECHR, refers to morals as a legitimate objective of the limitation of freedom of religion.[4] Regardless of what I think of an objective defined in such a manner, it is a fact that numerous theories of righteousness, from Aristotelian and neo-Aristotelian teleological ethics and ethics of virtues,[5] to numerous sophisticated variants of utilitarianism[6] and natural law,[7] in their reasons for limiting actions that do not protect another human inevitably also include morals themselves or morals to protect other living beings – as such. The world would be radically different if it allowed as legitimate only those limitations of one’s liberty that exclusively protect the liberty of another human being. In the mentioned theories on righteousness for which it is impossible to claim a priori that they are unreasonable, a part of the legitimate limitations is also morals that exceed the rights of another human being.
 
Furthermore, a limitation of liberty in order to prevent the suffering of a living being can also be justified by human liberty or human dignity itself. According to Kant, also the virtue of constraining liberty is necessary to achieve the true liberty of a human, and thus the full realisation of his or her dignity. Without appropriate self-limitation, humans erode human dignity as such. According to some neo-Kantian theories of righteousness,[8] the way we treat living beings is a part of those virtues and thus part of the full realisation of human liberty and human dignity itself.[9] Regardless of what we may think of such concept of righteousness, it is a fact that it is one of the theories regarding which it is difficult to state that it is unreasonable, even if we perhaps disagree with it.
 
A similar example is the concept of “living together” (le vivre ensemble), which is sometimes mentioned by the ECtHR with respect to the topic we are deciding on (i.e. religious exceptions to neutral general prohibitions) as legitimate grounds for limiting freedom of religion.[10] For the “living together” of different religions (including atheism, agnosticism, etc.) to even be possible and sufficiently effective, each of such beliefs will have to yield to some degree in light of the inevitable existence of common generally accepted neutral rules (the values of a community, which are significant moral values, are only possible where there is a sufficiency of mandatory common rules).[11] Otherwise, living together – which includes the maximisation of the values of the community, which are to be shared among all and which in truth are not morally irrelevant (they save lives, prevent poverty, ensure security, liberty, democracy, etc.) – is not possible or not possible to a sufficient extent.
 
In this respect, I do not state my opinion as regards the accuracy or degree of the appropriateness of these and similar theories of justice. I only note that they exist and that – in contrast to many theories that trample fundamental values (totalitarianisms, quasi-totalitarianisms, caste systems, etc.) – they are not necessarily unreasonable, just like their authors, reasonable thinkers who dedicated their lives thereto, are not. In the same manner, the religious obligation whose limitation is the subject of our assessment is also not unreasonable. However, among the reasonable possibilities in a pluralism, there is a certain point where the legislature can pursue one from multiple legitimate possibilities, and in the next step it must also take care to not use such legitimate objective of a limitation excessively, i.e. in the case at issue, excessively on account of freedom of religion. Since in the case at issue there was no absolute prohibition on religious slaughter on one side of the scales (some animals can still be ritually slaughtered also in Slovenia, whereas as regards all those to which the prohibition applies, it is still possible to order such slaughter in a neighbouring state, subject to a somewhat greater effort), a significant part of the religious right has been preserved nonetheless. Furthermore, that part on the other side of the scales (of either morals, human dignity, or living together) that the legislature at issue deems very important and legitimate fundamental values – with regard to which, the Constitutional Court (irrespective of its own belief regarding these issues) cannot claim that the determination of these values is unreasonable without interfering by itself with pluralism (i.e. reasonable discord) as a constitutional value, which is an unavoidable and also necessary component of democratic society – is at the same time preserved. In pluralism, as a constitutional value, the fundamental right of every single individual to self-governance is embedded, which in a pluralistic democratic society he or she exercises either directly or, as a general rule, indirectly via the legislature. Once the described proportionality between the opposing constitutional values is ensured, the decision in favour of a certain regulation lies within the legislature’s margin of appreciation. It is entirely possible that a certain future legislature will adopt a different decision, which will entail the slightly greater suffering of animals and attribute slightly more weight to freedom of religion. However, it is precisely due to pluralism within the limits of reasonable discord that it is necessary, within the limits of proportionality, to leave this field open to discourse. May the future of open, not closed, discourse indicate the way in these unclear and difficult (perhaps unsolvable) dilemmas. However, such debate would be much more limited and hindered if within the field of pluralism the Constitutional Court concluded (cemented) the discourse once and for all by itself and thus to a significant degree de facto exempted it from the legislative and, consequently, social spheres.
 
                                                                                  Dr.Dr. Klemen Jaklič
                                                                                           Judge
 

[1] And probably some others in the not entirely clarified reasoning stating the underlying reasons of each of the nine judges who decided on the case. This unclarity is an additional reason for this attempt to clarify my assessment of this significant aspect in the concurring opinion.
 
[2] In my mind, I hear my dear mentor and subsequent colleague, Prof. Laurence Tribe, as he hammered home to us – his protégées – this same boundary between reasonable and unreasonable religion when I started to study constitutional law. Since the right to religion is specific (for many, religious belief concerns the very essence [of life], the essence which in the eyes of a believer is infinitely more important than the world it surpasses), the standard of reasonableness in the religious field is, from the viewpoint of constitutional law, only exceeded when a certain religious belief is as phony as a three-dollar bill. Every reasonable American knows the saying ”as phony as a three-dollar bill”, as in the USA a one-dollar bill is followed by five- and twenty-dollar bills, and there is nothing in between.
 
[3] Those who are drafting the joint concurring opinion.
 
[4] Article 9 of the ECHR reads as follows:
 
“Freedom of thought, conscience and religion
 
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
 
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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.”
 
[5] See, e.g., Martha Nussbaum, “Beyond Compassion and Humanity: Justice for Nonhuman Animals”, The Tanner Lectures on Human Values 2002, published in: C. Sunstein and M. Nussbaum, Animal Rights: Current Debates and New Directions, Oxford University Press (2005); Frontiers of Justice, Harvard University Press (2006). Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues, Open Court (1999), p. 109.
 
[6] Peter Singer, “Animals and the Value of Life”, in: T. Beauchamp and T. Regan (Eds.) Matters of Life and Death, Temple University Press (1980); Practical Ethics, 2nd Edition, Cambridge University Press 1979; Reply to Martha Nussbaum, 'Justice for Non-Human Animals', The Tanner Lectures on Human Values, 13 November, 2002”.
 
[7] Gary Chartier, “Natural Law and Animal Rights”, Canadian Journal of Law and Jurisprudence, Volume 23, No. 1, 2010.
 
[8] See, e.g., Christine Korsgaard, “Facing the Animal You See in the Mirror” (2007), Harvard Review of Philosophy, 16(1): 4–9; and, e.g., the description of her neo-Kantian version regarding this issue in the Stanford Encyclopedia of Philosophy (2017), https://plato.stanford.edu/entries/moral-animal/“A third way of addressing this problem has been taken up by Korsgaard[,] who maintains that there is a big difference between those with normative, rational capacities and those without, but unlike Kant, believes both humans and non-humans are the proper objects of our moral concern. She argues that those without normative, rational capacities share certain “natural” capacities with persons, and these natural capacities are often the content of the moral demands that persons make on each other. She writes, ‘what we demand, when we demand […] recognition, is that our natural concerns – the objects of our natural desires and interests and affections – be accorded the status of values, values that must be respected as far as possible by others. And many of those natural concerns – the desire to avoid pain is an obvious example – spring from our animal nature, not from our rational nature.’ What moral agents construct as valuable and normatively binding is not only our rational or autonomous capacities, but the needs and desires we have as living, embodied beings. Insofar as these needs and desires are valuable for agents, the ability to experience similar needs and desires in patients should also be valued.”
 
[9] The basis for such neo-Kantian theories is offered by Kant himself, who in his book Lectures on Ethics, reprinted, Cambridge University Press (1997), makes it clear that people “have indirect duties to animals, duties that are not toward them, but in regard to them insofar as our treatment of them can affect our duties to persons.” “The Moral Status of Animals”, Stanford Encyclopedia of Philosophy (2017), https://plato.stanford.edu/entries/moral-animal/Or, in Kant’s own words: “If a man shoots his dog because the animal is no longer capable of service, he does not fail in his duty to the dog, for the dog cannot judge, but his act is inhuman and damages in himself that humanity which it is his duty to show towards mankind. If he is not to stifle his human feelings, he must practice kindness towards animals, for he who is cruel to animals becomes hard also in his dealings with men.” Kant, Lectures on Ethics (1997) 212.
 
[10] SAS v. France, Grand Chamber of the ECtHR, 1 July 2014; Belcacemi and Oussar v. Belgium, dated 11 July 2017, and Dakir v. Belgium, dated 11 July 2017.
 
[11] John Rawls, Political Liberalism, Columbia University Press (1993). The central question of Rawl’s epochal book is how to ensure, despite the existence of a deep, but reasonable, discord in modern democratic society, one common legitimate governance by constitutional democracy, the only one sustainable in the long term and able to generate a sufficient amount of goods for the community, goods that are significant and necessary moral goods.
 
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Slovene Muslim Community, Ljubljana and Edin Kumalić, Ljubljana
Date of application:
12.06.2014
Date of decision:
25.04.2018
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN03920