JOINT DISSENTING OPINION OF JUDGEs Sir Nicolas Bratza, FISCHBACH, thomassen, tsatsa ‑ nikolovska, panŢÎRU, LEVITS and traja

(Translation)

To our great regret, we cannot agree with either the reasoning or the conclusion of the majority in the present case.

1. With regard to the question whether or not there was interference with the applicant association's right to freedom of religion, we can agree with paragraphs 76 and 77; it is quite correct to say that by granting approval to the ACIP in 1982 the State authorities, far from impairing freedom of religion, on the contrary gave practical effect to a positive commitment intended to permit the free exercise of that freedom. On the other hand, we cannot concur with the majority's assertion in paragraph 78 that it is necessary to ascertain whether or not an application for approval made subsequently by another religious body involves exercise of the right to the freedom to manifest one's religion.

The mere fact that approval has already been granted to one religious body does not absolve the State authorities from the obligation to give careful consideration to any later application made by other religious bodies professing the same religion. In the present case, the applicant association's application was prompted by the fact that, in its submission, the ACIP 's ritual slaughterers no longer made a sufficiently thorough examination of the lungs of slaughtered animals, so that meat certified as kosher by the ACIP could not be considered “ glatt ” . But the Jews who belong to the applicant association consider that meat which is not “ glatt ” is impure and therefore not compatible with Jewish dietary laws. There is therefore disagreement on that point between the ACIP and the applicant association.

We consider that, while it is possible for tension to be created where a community, and a religious community in particular, is divided, this is one of the unavoidable consequences of the need to respect pluralism. In such a situation the role of the public authorities is not to remove any cause of tension by eliminating pluralism, but to take all necessary measures to ensure that the competing groups tolerate each other (see Serif v. Greece , no. 38178/97, § 53, ECHR 1999-IX). We therefore find it particularly inappropriate to mention, as the majority do in paragraph 82 of the judgment , that the applicant association could have reached an agreement with the ACIP in order to perform ritual slaughter under cover of the approval granted to the ACIP . That argument amounts to discharging the State, the only entity empowered to grant approval, from the obligation to respect freedom of religion. But the ACIP represents the majority current

in the Jewish community and as such is the least well-placed to assess the validity of minority claims and act as arbiter on the question.

We also consider that the fact that the applicant association is able to import “ glatt ” meat from Belgium does not justify in this case the conclusion that there was no interference with the right to the freedom to practise one's religion through performance of the rite of ritual slaughter; the same applies to the fact that Jews are able to obtain supplies of “ glatt ” meat, if necessary, from the few butcher's shops run by the ACIP which sell it under the aegis of the Beth Din.

Article 10 of the 1980 decree expressly provides that an approved religious body may authorise ritual slaughterers to perform ritual slaughter and that the necessary approval is to be given by the Minister of Agriculture on a proposal by the Minister of the Interior. By denying the applicant association the status of a “religious body” and by rejecting its application for approved status on that account, the French authorities therefore restricted its freedom to manifest its religion.

In our view, the possibility of obtaining “ glatt ” meat by other means is irrelevant for the purpose of assessing the scope of an act or omission on the part of the State aimed, as in the present case, at restricting exercise of the right to freedom of religion (see, mutatis mutandis , the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, pp. 34-35, § 69). We cannot therefore follow the majority's finding that there was no violation of Article 9 taken alone because there had been no interference.

2. With regard to justification of the interference with the right to freedom of religion, we take the view that the main problem in the present case lies in the discrimination of which the applicant association complained.

In that connection, we consider that the reasoning of the majority, as set out in paragraph 87, is inadequate. In our opinion, in order to find that there had been no violation of Article 9 of the Convention taken in conjunction with Article 14, the majority should not have confined their reasons to the assertion that the interference was of “limited effect” and that the difference of treatment was “limited in scope”. Where freedom of religion is concerned, it is not for the European Court of Human Rights to substitute its assessment of the scope or seriousness of an interference for that of the persons or groups concerned, because the essential object of Article 9 of the Convention is to protect individuals' most private convictions.

For our part, we consider it indispensable to examine the question whether, by granting the approval in issue to the ACIP while refusing it to the applicant association in 1987, the State authorities secured to the applicant association, without discrimination, in accordance with Article 14 of the Convention, enjoyment of the right to freedom of religion it was afforded under Article 9. In the present case we consider that there has been a violation of Article 14 of the Convention taken in conjunction with Article 9, for the following reasons.

In the first place, we observe that for the purposes of Article 14 the notion of discrimination ordinarily includes cases where States treat persons or groups in analogous situations differently without providing an objective and reasonable justification. According to the case-law of the Convention institutions, a difference of treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The Court reaffirmed this recently in Thlimmenos v. Greece ([GC], no. 34369/97, ECHR 2000-IV).

The Court should first have considered therefore whether the applicant association was in an analogous situation to that of the ACIP . In that connection, we observe that it is not contested that the legal status of the applicant association is that of a liturgical association, within the meaning of the 1905 Act on the separation of the Churches and the State, just like the ACIP . Moreover, Article 10 of the decree of 1 October 1980 gives no definition whatsoever of the term “religious body” and lays down no criterion, such as representativeness within the religion concerned, whereby the point can be assessed. Nor has it been contested that the applicant association has two synagogues where acts of worship are regularly celebrated and training establishments for rabbis or that it carries out, in practice, religious supervision over a number of butcher's shops and sales outlets for “ glatt ” kosher meat.

The fact that this movement is a minority within the Jewish community as a whole is not in itself sufficient to deprive it of the character of a religious body. We therefore consider that in the light of its statute and activities there is at first sight no reason to doubt that the applicant association is a “religious body”, just like the ACIP . We further note that, as regards the practice of ritual slaughter, it is not contested either that the ACIP slaughterers and those of the applicant association use exactly the same method of slaughter by throat-slitting, the only difference residing in the scope of the examination of the lungs of the slaughtered animals after death. Here again, therefore, the applicant association is in an analogous situation to that of the ACIP .

The Government submitted that the difference in treatment between the ACIP and the applicant association was justified by the fact that the applicant association was actually engaged in a purely commercial activity, namely the slaughter, certification and sale of “ glatt ” kosher meat, as evidenced by the fact that more than half of its income came from levying a slaughter tax. The Government argued on that basis that the applicant association was not engaged in truly religious activity comparable to that of the ACIP . However, we would observe that the ACIP likewise levies a rabbinical tax on slaughter and that it can be seen from the accounts submitted by the third-party interveners that more than half of the ACIP 's income also comes from this same tax. That being so, we fail to see in what way the applicant association's activity is more “commercial” than the activity carried on by the ACIP in this area.

With regard to the legitimate aims capable of justifying the difference in treatment, the Government relied on the need to protect public health. However, there is nothing to suggest that the ritual slaughterers employed by the applicant association do not comply just as well as those of the ACIP with the rules of hygiene imposed by the regulations governing slaughterhouses, a point which was also acknowledged by the domestic courts (see paragraph 35 of the judgment ).

Lastly, the Government referred to the low level of support for the applicant association, which has only about 40,000 adherents, all ultra-orthodox Jews, out of 700,000 Jews living in France. Its representativeness , in their submission, could not be compared with that of the ACIP , which represented nearly all the Jews in France. The refusal to approve the applicant association had therefore been necessary, they argued, for the protection of public order, with a view to avoiding the proliferation of approved bodies which did not provide the same safeguards as the ACIP .

We certainly do not disregard the interest the authorities may have in dealing with the most representative organisations of a specific community. The fact that the State wishes to avoid dealing with an excessive number of negotiating partners so as not to dissipate its efforts and in order to reach concrete results more easily, whether in its relations with trade unions, political parties or religious denominations, is not illegitimate in itself, or disproportionate (see, mutatis mutandis , the Swedish Engine Drivers' Union v. Sweden judgment of 6 February 1976, Series A no. 20, p. 17, § 46).

In the present case, however, the dispute submitted to the French authorities did not concern the applicant association's representativeness within the Jewish community and the applicant association has by no means challenged the role and function of the ACIP , the Central Consistory or other bodies representing the interests of the Jewish communities in France as the State's preferred interlocutors. For the applicant association, it was solely a matter of obtaining approval to practise ritual slaughter, on which subject it disagrees with the ACIP .

We consider that the organisation of ritual slaughter is only one aspect of the relations between the various religious bodies and the State and do not see how granting the approval in question could have threatened to undermine public order. With regard to the Muslim communities living in France, which also practise ritual slaughter but are less well structured than the Jewish communities, it should be noted that the applicant association asserted, without being contradicted on this point by the Government, that approval had been granted fairly liberally by the authorities to a number of different bodies, notably the mosques of Paris, Evry and Lyons, without it even being alleged that the number of approved bodies was such as to threaten public order or health.

In concluding, in paragraph 87 of the judgment , that there was in the present case a reasonable relationship of proportionality between the means employed and the aim sought to be realised, the majority of the Court refer to paragraph 84 and to the Manoussakis and Others v. Greece judgment ( judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV), stressing the margin of appreciation left to States, “particularly with regard to establishment of the delicate relations between the Churches and the State”.

While we accept that States enjoy a margin of appreciation in this area, we observe that in the same judgment the Court went on to emphasise that in delimiting the extent of the margin of appreciation concerned it had to have regard to what was at stake, namely the need to secure true religious pluralism, which is an inherent feature of the notion of a democratic society (loc. cit., p. 1364, § 44).

We consider that similar reasoning is applicable in the present case. In our view, withholding approval from the applicant association, while granting such approval to the ACIP and thereby conferring on the latter the exclusive right to authorise ritual slaughterers, amounted to a failure to secure religious pluralism or to ensure a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

In the light of the foregoing considerations, we consider that the difference in treatment between the applicant association and the ACIP – one of which received the approval that the other was denied – had no objective and reasonable justification and was disproportionate. There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 9.

[1] . Note by the Registry . Protocol No. 11 came into force on 1 November 1998.

[2] . Note by the Registry . The report is obtainable from the Registry.

[3] . In the version applicable at the material time.