This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court.
1. The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by the European Commission of Human Rights ("the Commission") on 6 March 1999 and then by the French Government ("the Government") on 30 March 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).
2. The case originated in an application (no. 27417/95) against the French Republic lodged with the Commission under former Article 25 of the Convention by an association registered under French law, the Jewish liturgical association Cha'are Shalom ve Tsedek ("the applicant association") on 23 May 1995. The applicant association alleged a violation of Article 9 of the Convention on account of the French authorities' refusal to grant it the approval necessary for access to slaughterhouses with a view to performing ritual slaughter in accordance with the ultra-orthodox religious prescriptions of its members. It further alleged a violation of Article 14 of the Convention in that only the Jewish Consistorial Association of Paris (association consistoriale israélite de Paris - "the ACIP"), to which the large majority of Jews in France belong, had received the approval in question.
3. The Commission declared the application admissible on 7 April 1997. In its report of 20 October 1998 (former Article 31 of the Convention), it expressed the opinion, by fourteen votes to three, that there had been a violation of Article 9, taken together with Article 14 of the Convention, and by fifteen votes to two that no separate issue arose under Article 9 of the Convention taken alone.
4. Before the Court the applicant association was represented by Mr Jacques Molinié, of the Conseil d'Etat and Court of Cassation Bar. The French Government were represented by their Agent, Mr Ronny Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.
5. On 31 March 1999 the panel of the Grand Chamber decided that the case should be examined by the Grand Chamber (Rule 100 § 1 of the Rules of Court).
6. The Government filed a memorial; the applicant association did not, but stated that it referred to the Commission's report. Observations were also received on 15 October 1999 from the Chief Rabbi of France, Mr Joseph Sitruk, and the ACIP, to which the President had given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3).
7. By a letter of 27 October 1999, received at the Registry on 2 November, the president of the applicant association, Rabbi David Bitton, stated that since the lodging of the application with the Commission in May 1995 he had come to realise what serious disorganisation was likely to arise for the functioning of the Jewish community and that this had led him to resign the office of president. He also said that as no president had been elected to replace him he was entitled to ask for the case to be purely and simply struck out of the Court's list and to withdraw from all pending proceedings. This letter was communicated on 5 November to the Government and the lawyer instructed by the association, and Mr Bitton was invited to produce by return of post a copy of the minutes of the meeting of the association's executive committee at which the president had been authorised, in accordance with its statute, to withdraw from the proceedings on the association's behalf.
8. On 22 November the association's lawyer sent a letter saying that Mr Bitton had resigned the office of president of the association in February 1999, with immediate effect, that another president had been elected by the governing body and that the applicant association had no intention of withdrawing its application.
9. On 24 November Mr Bitton, in a fax sent from the ACIP's fax machine, sent a copy of the minutes of the association's executive committee dated 15 November confirming the withdrawal.
10. On 26 November 1999 the applicant's lawyer stated that these minutes were a forgery, that the alleged meeting of the executive committee on 15 November had never taken place and that the secretary general and treasurer mentioned in the minutes were unknown to the association, of which they had never been members. He also produced a copy of Mr Bitton's letter of resignation, dated 26 February 1999, a copy of the minutes of the governing body's meeting on 2 March 1999 at which the new president, Mr Nissim Betito, had been elected and a copy of the attendance sheet initialled by those present.
11. The Government were kept regularly informed of developments and did not wish to make any comment.
12. A hearing took place in public in the Human Rights Building, Strasbourg, on 8 December 1999.
Mr François Molinié, of the Paris Bar, Adviser.
The Court heard addresses by Mr Jacques Molinié for the applicant association and Mr Dobelle for the Government.
13. Kashrut is the name given to all the Jewish laws on the types of food which may be eaten and how to prepare them. The main principles applying to kosher food are to be found in the Torah, the holy scripture comprising the first five books of the Bible - the Pentateuch - namely Genesis, Exodus, Leviticus, Numbers and Deuteronomy.
14. At the Creation only food from plants could be eaten by man (Gen. i, 29). Eating meat was not authorised until after the Flood (Gen. ix, 3) and then only under very strict conditions. The Torah absolutely forbids the consumption of blood, since blood is the medium of life and life must not be absorbed with flesh but poured on the earth like water (Deut. xii, 23 and 24). In addition, certain animals are regarded as unclean and consumption of certain parts of animals is also forbidden.
15. Among quadrupeds, for example, only animals that are both cloven-hoofed and ruminants may be eaten; that excludes solidungulates like horses and camels and non-ruminating quadrupeds like pigs and rabbits (Lev. xi; Deut. xiv). Among aquatic species, only fishes with both fins and scales may be eaten, but not crustaceans or shellfish. Among flying creatures, only non-carnivorous birds, such as grain-eating, farmyard fowls and some types of game may be eaten. Insects and reptiles are totally forbidden.
16. The Torah (Lev. vii, 26 and 27; xvii, 10-14) prohibits consumption of the blood of authorised mammals and birds, and slaughter must be carried out "as the [Lord has] commanded" (Deut. xii, 21). It is forbidden to eat meat from animals that have died of natural causes or have been killed by other animals (Deut. xiv, 21). It is likewise forbidden to eat meat from an animal showing signs of disease or blemishes at the time of slaughter (Num. xi, 22). Meat and other products of permitted animals (such as milk, cream or butter) must be eaten and prepared separately, in and with separate utensils, because the Torah prohibits the cooking of a kid in its mother's milk (Exod. xxii; Deut. xiv, 21).
17. With a view to ensuring compliance with all the prohibitions laid down in the Torah, later commentators established very detailed rules concerning, in particular, the approved method of slaughter, initially by handing down the oral tradition but later by compiling an encyclopedic collection of commentaries - the Talmud.
18. Observance of the above rules on the eating of meat necessitates special slaughter processes. As it is forbidden for Jews to eat any blood whatsoever, animals for slaughter, after being blessed, must have their throats slit; more precisely, they must be killed with a single stroke of a very sharp knife in such a way that an immediate, clean and deep cut is made through the trachea, the oesophagus, the carotid arteries and the jugular veins, so that the greatest possible quantity of blood will flow. The meat must then be steeped in water and salted, still with the aim of removing any trace of blood. Certain organs, like the liver, must be grilled to remove blood from them. Other parts, like the sciatic nerve, blood vessels or the fat around the vital organs, must be removed.
19. In addition, immediately after slaughter, the animal must be examined for any signs of disease or anomaly; if there is the slightest doubt on that point, the meat is declared unfit for consumption. Ritual slaughter - shechitah - may be performed only by a shochet, who must be a devout man of unimpeachable moral integrity and scrupulous honesty. Lastly, until it comes to be sold, the meat must be kept under the supervision of a kashrut inspector. The competence and personal integrity of ritual slaughterers and kashrut inspectors are subject to continuous appraisal by a religious authority. In order to guarantee consumers that their meat has been slaughtered in accordance with the prescriptions of Jewish law, the religious authority certifies it as "kosher". Such certification gives rise to the levying of a tax known as slaughter tax or rabbinical tax.
20. In France, as in many other European countries, the ritual slaughter required by Jews and Muslims for religious reasons comes into conflict with the principle that an animal to be slaughtered, after being restrained, must first be stunned, that is plunged into a state of unconsciousness in which it is kept until death intervenes, in order to spare it any suffering. Ritual slaughter is nevertheless authorised under French law and by the Council of Europe Convention for the protection of animals for slaughter and the European Directive of 22 December 1993 (see "Relevant law and practice" below).
"It is forbidden to perform ritual slaughter save in a slaughterhouse. Subject to the provisions of the fourth paragraph of this Article, ritual slaughter may be performed only by slaughterers authorised for the purpose by religious bodies which have been approved by the Minister of Agriculture, on a proposal from the Minister of the Interior. Slaughterers must be able to show documentary proof of such authorisation.
The approved bodies mentioned in the previous paragraph must inform the Minister of Agriculture of the names of authorised persons and those from whom authorisation has been withdrawn. If no religious body has been approved, the prefect of the département in which the slaughterhouse used for ritual slaughter is situated may grant individual authorisations."
22. On 1 July 1982 the approval necessary for power to authorise slaughterers was granted to the Joint Rabbinical Committee alone. The Joint Rabbinical Committee is part of the Jewish Consistorial Association of Paris, which is an offshoot of the Central Consistory, the institution set up by Napoleon I by means of the Imperial Decree of 17 March 1808 to administer Jewish worship in France. Following the separation of the Churches and the State in 1905 the Jewish congregations of France, numbering some 700,000 faithful, formed themselves into Jewish liturgical associations (see "Relevant law and practice" below) under an umbrella organisation called the Union of Jewish Congregations of France, which kept the name Central Consistory.
23. Under Article 1 of its statute, the aims of the Central Consistory are to serve the general interests of Jewish worship, to safeguard the freedom needed to take part in it, to defend the rights of the congregations and to see to the founding, survival and development of joint institutions and services for the benefit of affiliated bodies. It also seeks to preserve the independence and dignity of the rabbinate, to ensure the permanence of the office of Chief Rabbi of France, to encourage recruitment of rabbis by organising the Jewish Seminary of France and to ensure, by general rules applicable to all the affiliated bodies, the preservation of unity, discipline and orderliness in the performance of acts of worship. It represents the general interests of French Judaism and is dedicated to maintaining and preserving spiritual ties with Israel and Jewish congregations throughout the world.
24. The Consistory includes congregations representing most of the main denominations within Judaism, with the exception of the liberals, who believe that the Torah should be interpreted in the light of present-day living conditions, and the ultra-orthodox, who advocate, on the contrary, a strict interpretation of the Torah.
25. The Joint Rabbinical Committee is composed of the Chief Rabbi of Paris, from the ACIP, whose registered office is in the rue Saint-Georges, Paris, the rabbi of the orthodox congregation of the rue Pavée, the rabbi of the Jewish congregation of strict observance and the rabbi of the traditionalist congregation of the rue de Montevideo. It is empowered to issue the authorisations needed to obtain a card permitting access to the slaughterhouses. The rabbinical court, or Beth Din, which rules on questions of religious law (marriage, divorce and conversions), supervises observance of the dietary laws and appoints and monitors the kashrut slaughterers and inspectors employed by the Consistory.
26. Since section 2 of the 1905 Act provides that the Republic may not recognise, pay stipends to or subsidise any religious denomination (except in the three départements of Bas-Rhin, Haut-Rhin and Moselle, where the 1801 Concordat still applies), the income of all the liturgical associations in France, of whatever denomination, is derived from the contributions and gifts of their adherents. According to the Government, approximately half of the Central Consistory's resources comes from the slaughter tax, which is levied at the rate of about FRF 8 per kilo of beef sold.
27. The liturgical association Cha'are Shalom Ve Tsedek is an association declared on 16 June 1986 with its registered office in the rue Amelot, Paris. According to its statute, the applicant association's aims are "to organise, subsidise, encourage, revive, assist, promote and finance, in France, public Jewish worship and any other related or connected activities of a religious nature which might, directly or indirectly, lead towards the object it pursues".
In addition, "It will seek to co-ordinate the spiritual actions of other Jewish liturgical associations, particularly those aimed at fostering observance of kashrut. It will assist with the promotion and creation of all social, educational, cultural and spiritual activities as far as its means permit and provide both moral and financial support to poor families belonging to the congregation or those experiencing temporary difficulties."
28. The Cha'are Shalom Ve Tsedek association now has six hundred subscribing members and approximately forty thousand adherents, some of whom run a total of twenty butcher's shops, nine restaurants and five caterers in the Paris region alone. In addition it has more than eighty outlets for the sale of deep-frozen food in the Paris region, Lyons and Marseilles.
29. The association publishes Jewish calendars, has a Kollel (study centre for young rabbis), two centres for the study of the Torah and two synagogues, in Paris and Sarcelles. It is administered by a rabbinical committee which has sole jurisdiction over religious issues and is composed of chief rabbis, rabbis, well-known members of the congregation and kashrut slaughterers and inspectors.
30. Originally the applicant association came into being as a minority movement which split away from the Jewish Central Consistory of Paris. Its members are determined to practise their religion in the strictest orthodoxy. In particular, the applicant association wishes to perform ritual slaughter according to stricter rules than those followed by the slaughterers authorised by the Paris Central Consistory as regards examination of slaughtered animals for any signs of disease or anomalies.
31. The prescriptions concerning kosher meat, derived from Leviticus, were codified in a compendium called Shulchan Aruch (The Laid Table) written by Rabbi Yosef Caro (1488-1575), which lays down very strict rules. However, some later commentators accepted less constraining rules, particularly with regard to examination of the lungs of slaughtered animals. But a number of orthodox Jews, particularly those who belong to Sephardic congregations originally from North Africa, including the members of the applicant association, wish to eat meat from animals slaughtered according to the most stringent requirements of the Shulchan Aruch. This type of meat is referred to by the Yiddish word "glatt", meaning "smooth".
32. For meat to qualify as "glatt", the slaughtered animal must not have any impurity, or in other words any trace of a previous illness, especially in the lungs. In particular, there must be no filamentary adhesions between the pleura and the lung. This requirement of purity mainly concerns adult sheep and cattle, which are more likely to have contracted disease at some point of their existence. But, according to the applicant association, the ritual slaughterers under the authority of the Beth Din, the rabbinical court of the ACIP, the only body to have been approved - on 1 July 1982 - by the Ministry of Agriculture, now no longer make a detailed examination of the lungs and are less exacting about purity and the presence of filaments so that, in the applicant association's submission, butchers selling meat certified as kosher by the Central Consistory are selling meat which its members consider impure and therefore unfit for consumption.
33. The applicant association submitted that it was therefore obliged, in order to be able to make "glatt" kosher meat available to its adherents, to slaughter illegally and to obtain supplies from Belgium.
34. The Government, for their part, produced a certificate from the Chief Rabbi of France to the effect that there were butcher's shops supervised by the Consistory where the members of the Cha'are Shalom association could obtain "glatt" meat. In addition, according to figures supplied by the Government, the applicant association, which has nine employees, including six ritual slaughterers, had a turnover of FRF 4,900,000 in 1993, despite refusal of authorisation to perform ritual slaughter, and more than FRF 3,800,000 of this sum came from slaughter tax. In 1994 the turnover was FRF 4,600,000, of which FRF 3,700,000 came from the slaughter tax, and in 1995 the income from the slaughter tax came to more than FRF 4,000,000 from the sale of only 750 tonnes of beef and 300 tonnes of poultry. The tax levied by the applicant association for slaughter amounted to four francs for each kilo of kosher meat sold.
35. Between 1984 and 1985, when it was registered only as a cultural (rather than liturgical) association, the applicant association certified as being "glatt" kosher the meat sold in the butcher's shops of its members. This meat was either imported from Belgium or came from animals slaughtered in France in accordance with its own religious prescriptions, and therefore without certification from the Paris Beth Din. Civil proceedings were brought against it by the ACIP, which alleged that it had given a misleading description of goods offered for sale, since it had fraudulently labelled the meat sold as kosher. However, the ACIP's action was dismissed by the Paris Court of Appeal in a judgment of 1 October 1987, later upheld by the Court of Cassation, on the ground that the 1905 Act on the separation of the Churches and the State did not allow the courts to rule on the question whether a liturgical association like the applicant was empowered to guarantee that meat offered for sale was kosher; on the other hand, the Court of Appeal noted that it had not been contested that the applicant association had complied with the strict rules concerning ritual slaughter and inspection.
36. On 11 February 1987 the applicant association asked the Minister of the Interior to propose its approval with a view to practising ritual slaughter. This application was refused by a decision of 7 May 1987 on the grounds that the association was not sufficiently representative within the French Jewish community and was not a religious association within the meaning of Part IV of the Act of 9 December 1905 on the separation of the Churches and the State.
37. The applicant appealed to the Paris Administrative Court pleading an infringement of freedom of religion, guaranteed both by section 1 of the Act of 9 December 1905 on the separation of the Churches and the State and by Article 9 of the European Convention on Human Rights.
The grounds given for the impugned decision were that the association was not sufficiently representative within the Jewish community and that it was not a liturgical association within the meaning of Part IV of the Act of 9 December 1905. In making that decision the Minister of the Interior refused to accept that the association was a religious body coming within the scope of the above-mentioned provisions.
Although Article 1 of the appellant's statute describes it as a liturgical association governed by the provisions of the Act of 9 December 1905, ... [the applicant association] has not established, as the evidence stands at present, that it subsidises or that it is an offshoot of an association which subsidises the continuation of and public participation in Jewish worship. The fact that it makes kosher meat available for sale in more than twenty retail butcher's and eighty outlets for the sale of deep-frozen food is not sufficient to give the association the character of a religious body which may be proposed by the Minister of the Interior for approval by the Minister of Agriculture... The Minister of the Interior was thus able to take the impugned decision without committing any error as to the facts or the law or any manifest error of assessment, nor did he infringe the freedom of worship, since he did no more than verify the status of the appellant organisation in the interests of public policy and pursuant to the provisions referred to above.
Lastly, it has not been established that the Minister's decision was taken on grounds that had nothing to do with public policy requirements and was prompted by a desire to reserve the benefit of approval for the only Jewish religious body which has obtained it..."
... The documents in the file do not establish that the Jewish liturgical association Ch'are Shalom Ve Tsedek, which does not organise any worship or dispense any teaching, has on account of its activities the character of a "religious body" for the purposes of Article 10 ... of the Decree of 1 October 1980. Consequently, by refusing to propose it for approval by the Minister of Agriculture, the Minister of the Interior did not commit any error of law and gave sufficient grounds for his decision.
[Lastly,] in taking the impugned decision the Minister of the Interior only used the powers conferred on him by the above-mentioned provisions with a view to ensuring that ritual slaughter is performed in conditions consistent with public policy requirements, public hygiene and respect for public freedoms. Accordingly, the appellant association may not validly maintain that the Minister interfered in the functioning of a religious body or that he infringed the freedom of religion guaranteed in particular by the Declaration of the Rights of Man and the European Convention for the Protection of Human Rights..."
40. Concurrently with its application of 11 February 1987 for approval as a religious body, the applicant association submitted on the same day to the prefect of the département of Deux-Sèvres an application on behalf of three ritual slaughterers who were members of the association, and were authorised by it, for specific individual authorisations to perform ritual slaughter in an establishment in that département.
41. On 29 April 1987 the prefect refused this application on the grounds that Article 10 § 3 of Decree no. 80-791 of 1 October 1980 empowered prefects to authorise individual slaughterers only where no religious body had been approved for the religion in question and that it was clear that the Joint Rabbinical Ritual Slaughter Committee had been given the approval concerned.
42. The applicant association appealed against this decision to the Poitiers Administrative Court.
The evidence placed before the court shows, and this has not been contested, that by a decision of 1 July 1982 the Minister of Agriculture, acting on the basis of Article 10 § 2 of the above-mentioned decree of 1 October 1980, approved the "Joint Rabbinical Committee" as a body empowered to appoint ritual slaughterers authorised to perform ritual slaughter in the manner prescribed by the Jewish religion. That approval prevents prefects from issuing individual authorisations under Article 10 § 4 permitting persons or institutions adhering to the religion concerned to perform ritual slaughter. It is clear, particularly in the light of Article 2 of its statute, that the cultural association 'Ch'are Shalom Ve Tsedek' proclaims its adherence to the Jewish religion. Consequently, and even though the association apparently refuses for religious reasons to recognise the authority of the 'Joint Rabbinical Committee', the individual application it made for a derogation authorising it to perform ritual slaughter in a slaughterhouse in the département of Deux-Sèvres could only be refused. Accordingly, when the prefect of Deux-Sèvres, in refusing the application on 29 April 1987, applied these legal rules, as he was required to do, without becoming involved in the internal dissensions of the Jewish religion, he did not infringe the principle of equality in the application of administrative rules or the principle of freedom of worship set forth in the Act of 9 December 1905 on the separation of the Churches and the State or the freedom of conscience and religion enunciated ... in Article 9 of the Convention for the protection of Human Rights and Fundamental Freedoms."
"The provisions ... of the third paragraph of Article 10 of the decree of 1 October 1980 give prefects the power to authorise ritual slaughterers only where no religious body has been approved for the religion concerned under the first paragraph of the same Article. It is clear that the Joint Rabbinical Ritual Slaughter Committee has obtained the approval in question. Consequently, the prefect of Deux-Sèvres was required to refuse, as he did, the application made by the appellant association."
"France is a secular Republic; it shall ensure the equality before the law of all citizens, without distinction as to origin, race or religion. It shall respect all beliefs."
"The Republic shall ensure freedom of conscience. It shall guarantee free participation in religious worship, subject only to the restrictions laid down hereinafter in the interest of public order."
"The Republic shall not recognise, pay stipends to or subsidise any religious denomination. Consequently, from 1 January in the year following promulgation of this Act all expenditure relating to participation in worship shall be removed from State, département and municipality budgets. However, these budgets may include appropriations for expenditure on chaplaincy services intended to ensure freedom of worship in public institutions such as senior and junior high schools, primary schools, hospices, mental hospitals and prisons..."
"Associations formed in order to meet the costs of a religious denomination, to ensure its continued existence or to foster participation in public acts of worship shall be constituted in accordance with sections 5 et seq. of Part 1 of the Act of 1 July 1901. They shall, in addition, be subject to the provisions of the present Act."
They may not, in any form whatsoever, receive subsidies from the State, the départements or municipalities. Sums allotted for repairs to the buildings used for public worship shall not be considered subsidies, whether or not those buildings are listed as historic monuments."
"These associations may, in the forms laid down by section 7 of the Act of 16 August 1901, set up unions with a central administrative service or governing body..."
"It is an offence to ill-treat domestic animals or wild animals that have been tamed or are being held in captivity."
"The provisions of Articles 8 and 9 below shall be applicable in establishments for the slaughter of oxen, sheep, goats, pigs, horses, poultry, domestic rabbits and game."
"All animals must be restrained before slaughter. In the case of ritual slaughter this must be done before the throat is slit.
Restraint techniques must be designed and used in such a way as to avoid all unnecessary suffering, excitement and injury to the animals. Halters may not be tightened by means of twisting-sticks.
It is forbidden to hang animals up before they have been stunned, or, in the case of ritual slaughter, before their throats have been slit.
The provisions of the present Article shall not apply to the slaughter of poultry, domestic rabbits and small game where these are stunned after being hung up."
"It is forbidden to perform ritual slaughter save in a slaughterhouse (D. no. 81/606, 18 May 1989, § 1). Subject to the provisions of the fourth paragraph of this Article, ritual slaughter may be performed only by slaughterers authorised for the purpose by religious bodies which have been approved by the Minister of Agriculture, on a proposal from the Minister of the Interior. Slaughterers must be able to show documentary proof of such authorisation.
The approved bodies mentioned in the previous paragraph must inform the Minister of Agriculture of the names of authorised persons and those from whom authorisation has been withdrawn.
If no religious body has been approved, the prefect of the département in which the slaughterhouse used for ritual slaughter is situated may grant individual authorisations on application from the persons concerned."
"1. This Convention shall apply to the movement, lairaging, restraint, stunning and slaughter of domestic solipeds, ruminants, pigs, rabbits and poultry.
"Animals shall be restrained where necessary immediately before slaughtering and, with the exceptions set out in Article 17, shall be stunned by an appropriate method."
"In the case of the ritual slaughter of animals of the bovine species, they shall be restrained before slaughter by mechanical means designed to spare them all avoidable pain, suffering, agitation, injury or contusions."
"1. Each Contracting Party shall make certain of the skill of persons who are professionally engaged in the restraint, stunning and slaughter of animals.
2. Each Contracting Party shall ensure that the instruments, apparatus or installations necessary for the restraint and stunning of animals comply with the requirements of the Convention."
"Each Contracting Party permitting slaughter in accordance with religious ritual shall ensure, when it does not itself issue the necessary authorisations, that animal sacrificers are duly authorised by the religious bodies concerned."
vii. if they authorise slaughter in accordance with religious rites without prior stunning, to take all possible measures to protect the welfare of the animals concerned by ensuring that such slaughter is carried out in appropriate slaughterhouses by trained personnel, who observe as far as possible the provisions in the Code of Conduct.
"The present Directive does not affect national provisions related to special methods of slaughter which are required for particular religious rites."
"... In requiring ritual slaughter performed under conditions derogating from the provisions of ordinary law to be carried out only by ritual slaughterers authorised by religious bodies approved by the Minister of Agriculture on a proposal by the Minister of the Interior, the Prime Minister did not interfere in the affairs of religious bodies and did not infringe the freedom of worship but took the measures needed for exercise of that freedom in a manner consistent with public policy..."
54. Under the terms of Article 37 § 1 (a) of the Convention, the Court may decide, at any time in the proceedings, to strike a case out of its list where the circumstances lead to the conclusion that the applicant does not intend to pursue his application.
55. In the present case, by a letter of 27 October 1999, the president of the applicant association, Rabbi David Bitton, told the Court that he wished purely and simply to withdraw the application. However, the lawyer of the applicant association contested the validity of this withdrawal, arguing, with supporting documentary evidence, that Mr Bitton had resigned from the office of president of the association on 26 February 1999 and that a new president had been elected by the governing body as far back as 2 March, this election being confirmed by an extraordinary general meeting on 10 March 1999 (see paragraphs 7 to 12 above).
56. At the hearing on 8 December 1999 the French Government made the preliminary observation that it was for the Court to rule on the validity of the last-minute withdrawal by Mr Bitton and stated that they would not object, should it be adjudged valid, if the Court were to grant his request. They also produced a copy of a letter from the applicant association, dated 24 November 1999, in which it informed the Paris police authority that, following a meeting of its executive committee on 23 September 1999, the association had decided to amend its statute, with regard in particular to its registered office and the composition of the executive committee.
57. In the absence of an express request by the Government for it to strike the case out of its list, the Court does not consider it necessary to examine of its own motion the question whether, as a matter of domestic law, the new president elected in March 1999 may validly act on behalf of the applicant association, since in the light of the documentary evidence produced by the association's lawyer the Court considers that it has been established that the applicant intends to pursue its application. There is therefore no reason to strike the case out of its list.
58. The applicant association, whose arguments were endorsed by the Commission, submitted that by refusing it the approval necessary for it to authorise its own ritual slaughterers to perform ritual slaughter, in accordance with the religious prescriptions of its members, and by granting such approval to the ACIP alone, the French authorities had infringed in a discriminatory way its right to manifest its religion through observance of the rites of the Jewish religion. It relied on Article 9 of the Convention, taken alone and together with Article 14.
"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."
"Enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as ... religion..."
60. In the submission of the applicant association, the conditions for ritual slaughter, as performed at present by the ritual slaughterers authorised by the ACIP, to which the French Government granted in 1982 the exclusive privilege of carrying out Jewish ritual slaughter, no longer satisfied the very strict requirements of the Jewish religion, as set forth in the Book of Leviticus and codified in the Shulchan Aruch. Since the ritual slaughterers of the ACIP no longer carried out a thorough inspection of the lungs of slaughtered oxen or sheep, the meat from animals slaughtered in those conditions could not be regarded in the eyes of the ultra-orthodox, or in any event of the Jews who belonged to the association, as perfectly pure, or "glatt", from the religious point of view.
However, what the Jews who belonged to the applicant association were asserting was the right not to consume meat if they could not be certain - because it was not from animals slaughtered and, above all, examined by their own ritual slaughterers - that it was perfectly pure, or "glatt". In the applicant association's submission, there had accordingly been a clear interference with its right to manifest its religion through observance of the religious rite of ritual slaughter.
61. The applicant association submitted that the refusal to approve it could not be justified by any of the legitimate aims set out in Article 9 § 2 of the Convention and that it was disproportionate and discriminatory for the purposes of Article 14 of the Convention. It emphasised that it was not contested that the ritual slaughterers it employed were just as scrupulous as those of the ACIP in complying with the hygiene regulations in force in slaughterhouses and that the Government could not therefore seriously maintain that the refusal to approve the association pursued the legitimate aim of "protection of public health".
62. The applicant association further submitted that it was indeed a "religious body" for the purposes of the 1980 decree regulating ritual slaughter, just like the ACIP, since both were liturgical associations within the meaning of the 1905 Act on the separation of the Churches and the State. The only difference lay in the relative size of these two liturgical associations, since the ACIP numbered among its adherents the majority of the Jews from the various branches of Judaism in France, with an annual budget of approximately 140,000,000 francs at its disposal, whereas the applicant association had only about 40,000 members, all ultra-orthodox, and had a budget of approximately four to five million francs.
While it might appear legitimate for a government to seek to establish especially close relations with the most representative trade unions, political parties or even religious associations, it nevertheless remained true, above all in a secular State like France, that the authorities had a duty to respect the rights of minorities.
The applicant association emphasised in that connection that the French authorities had been very open-handed in granting approvals for ritual slaughter by Muslims, first to the Paris Central Mosque, and later to the mosques of Lyons and Evry, without the number of such approvals endangering public order or public health in any way whatsoever.
63. Lastly, the applicant association submitted that the fact that, in order to be able to pay its ritual slaughterers, it levied a slaughter tax of about four francs per kilo of meat certified as being "glatt" kosher in the butcher's shops which claimed allegiance to it had no bearing on the strictly religious problem of the ritual slaughter in respect of which it had sought approval. It further observed that the ACIP also levied a slaughter tax, of about eight francs per kilo of meat sold, and that the income from that tax represented about half of the ACIP's resources.
64. The Government did not contest the fact that Jewish dietary prohibitions and prescriptions formed part of the practice of Judaism by its adherents, but argued that although the religious rules imposed a certain type of diet on Jews they did not by any means require them to take part themselves in the ritual slaughter of the animals they ate. Accordingly, a refusal of approval was capable of affecting the practice of their religion by Jews only if it was impossible for them, on account of that refusal, to find meat compatible with the religious prescriptions they wished to follow.
65. Yet that was not the position in the present case, in the Government's submission, because it was quite plain from the documents in the file that certain butcher's shops sold meat certified "glatt" from slaughterhouses controlled by the ACIP, that the shops of the applicant association, which obtained part of their supplies in Belgium, also sold such meat and that there would be nothing to prevent the applicant from reaching an agreement with the ACIP in order to have animals slaughtered by its own religious slaughterers, and according to the methods it defined, under the cover of the approval granted to the ACIP. In that connection the Government referred to the agreements reached between the ACIP and other very orthodox congregations such as the Lubavitch movement or the congregation of the rue Pavée.
66. Admittedly, the applicant denied that meat from the ACIP slaughterhouses was truly "glatt", criticising the inadequacy of the inspection of the lungs of slaughtered animals by ACIP slaughterers, but the Government noted that in doing so the applicant was challenging the findings of the legitimate and independent religious authorities who personified the religion it professed. The Government emphasised that it was not for the French authorities, bound as they were to respect the principle of secularism, to interfere in a controversy over dogma, but observed that it could not be contested that the Chief Rabbi of France, whose opinion on the matter was based on the rulings of the Beth Din (the rabbinical court), was qualified to say what was or was not compatible with Jewish observance.
67. In the Government's submission, there had been, in the final analysis, no interference with the right to freedom of religion, since in the present case the only impact of the refusal to approve the applicant association lay in the fact that it was impossible for Jews, given meat of equal quality, to choose meat from animals slaughtered by the applicant association, which differed from the meat offered for sale by the ACIP only in its price, since the slaughter tax levied by the applicant was lower by half than the tax levied by the ACIP. In the Government's view, this freedom of choice was an economic, not religious freedom. That was evidenced by the fact that, according to the ACIP, the applicant had at one time tried to obtain a kind of delegated authority from the ACIP allowing it to perform ritual slaughter itself, under cover of the approval granted to the ACIP, but that approach had come to nothing for lack of agreement on the financial terms of the contract.
68. Even supposing that there had been interference with the applicant association's right to manifest its religion, the Government maintained that such interference was prescribed by law, namely the 1980 decree regulating slaughterhouse practice, and that it pursued a legitimate aim, that of protecting order and public health. In that connection, the Government argued that ritual slaughter derogated very markedly from the principles underpinning the domestic and international legal rules applicable to the protection of animals and public hygiene. The written law in force prohibited ill-treatment of animals and required them to be stunned before slaughter to spare them any suffering. Similarly, health considerations required slaughter to be carried out in a slaughterhouse and, in the case of ritual slaughter, by slaughterers duly authorised by the religious bodies concerned in order to prevent the exercise of freedom of religion giving rise to practices contrary to the essential principles of hygiene and public health. Ritual slaughter could therefore be authorised only by way of a radical derogation.
69. With regard to the reasons which had prompted the French authorities to refuse the approval sought by the applicant association, the Government mentioned two factors, which came within the margin of appreciation the Convention left to Contracting States. In the first place, the Minister of the Interior had taken the view that the applicant association's activity was essentially commercial, and only religious in an accessory way, since it mainly sought to supply meat from animals slaughtered by its ritual slaughterers which was certified "glatt", and that it could therefore not be considered a "religious body" within the meaning of the 1980 decree.
Secondly, account had been taken of the limited support for the applicant association, which had approximately 40,000 adherents; this was not comparable with that for the ACIP, which had 700,000. In view of the exceptional nature of the practice of ritual slaughter, the refusal of approval had therefore been necessary to avoid a proliferation of approved bodies, which would undoubtedly have come about if the threshold of the guarantees required to be given by associations seeking approval had been too low.
70. Lastly, the Government maintained that there had not been discrimination for the purposes of Article 14 of the Convention either. In the first place, the applicant association and the ACIP, on account of their respective activities and levels of support, were not in comparable positions; secondly, even supposing that there had been a difference in treatment, that difference was the expression of the relationship of proportionality between the aim pursued and the means employed. In that connection, the Government again emphasised that the effects of the refusal of approval were very limited for the adherents of the applicant association, and even non-existent in view of the fact that slaughter did not directly affect their freedom of religion.
71. As to the veiled criticism that a monopoly on slaughter had been given to the ACIP in 1982 and was not without advantages for the public authorities, the Government observed that the ACIP, an offshoot of the Central Consistory, which had been administering Jewish worship in France for two hundred years, was indeed a legitimate negotiating partner, since it was an umbrella organisation for nearly all the Jewish associations in France and thus guaranteed protection of the interests of the community and respect for the rules dictated by public policy, particularly where health was concerned. The de facto monopoly enjoyed by the ACIP with regard to ritual slaughter was not, however, the result of any deliberate intention on the part of the State, which would not have failed to grant the approval sought by the applicant association if it had been able to prove that it was essentially a religious body and had wider support within the Jewish community.
72. The Court considers, like the Commission, that an ecclesiastical or religious body may, as such, exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention (see, mutatis mutandis, the Canea Catholic Church v. Greece judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2856, § 31). In the present case, a community of believers - of whatever religion - must, under French law, be constituted in the form of a liturgical association, as is the applicant association.
73. The Court next reiterates that Article 9 lists a number of forms which manifestation of one's religion or belief may take, namely worship, teaching, practice and observance (see the Kalaç v. Turkey judgment of 1 July 1997, Reports 1997-IV, p. 1209, § 27). It is not contested that ritual slaughter, as indeed its name indicates, constitutes a rite or "rite" (the word in the French text of the Convention corresponding to "observance" in the English), whose purpose is to provide Jews with meat from animals slaughtered in accordance with religious prescriptions, which is an essential aspect of practice of the Jewish religion. The applicant association employs ritual slaughterers and kashrut inspectors who slaughter animals in accordance with its prescriptions on the question, and it is likewise the applicant association which, by certifying as "glatt" kosher the meat sold in its members' butcher's shops, exercises religious supervision of ritual slaughter.
74. It follows that the applicant association can rely on Article 9 of the Convention with regard to the French authorities' refusal to approve it, since ritual slaughter must be considered to be covered by a right guaranteed by the Convention, namely the right to manifest one's religion in observance, within the meaning of Article 9.
75. The Court will first consider whether, as the Government submitted, the facts of the case disclose no interference with the exercise of one of the rights and freedoms guaranteed by the Convention.
76. In the first place, the Court notes that by establishing an exception to the principle that animals must be stunned before slaughter, French law gave practical effect to a positive undertaking on the State's part intended to ensure effective respect for freedom of religion. The 1980 decree, far from restricting exercise of that freedom, is on the contrary calculated to make provision for and organise its free exercise.
77. The Court further considers that the fact that the exceptional rules designed to regulate the practice of ritual slaughter permit only ritual slaughterers authorised by approved religious bodies to engage in it does not in itself lead to the conclusion that there has been an interference with the freedom to manifest one's religion. The Court considers, like the Government, that it is in the general interest to avoid unregulated slaughter, carried out in conditions of doubtful hygiene, and that it is therefore preferable, if there is to be ritual slaughter, for it to be performed in slaughterhouses supervised by the public authorities. Accordingly, when in 1982 the State granted approval to the ACIP, an offshoot of the Central Consistory, which is the body most representative of the Jewish communities of France, it did not in any way infringe the freedom to manifest one's religion.
78. However, when another religious body professing the same religion later lodges an application for approval in order to be able to perform ritual slaughter, it must be ascertained whether or not the method of slaughter it seeks to employ constitutes exercise of the freedom to manifest one's religion guaranteed by Article 9 of the Convention.
79. The Court notes that the method of slaughter employed by the ritual slaughterers of the applicant association is exactly the same as that employed by the ACIP's ritual slaughterers, and that the only difference lies in the thoroughness of the examination of the slaughtered animal's lungs after death. It is essential for the applicant association to be able to certify meat not only as kosher but also as "glatt" in order to comply with its interpretation of the dietary laws, whereas the great majority of practising Jews accept the kosher certification made under the aegis of the ACIP.
80. In the Court's opinion, there would be interference with the freedom to manifest one's religion only if the illegality of performing ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable.
81. But that is not the case. It is not contested that the applicant association can easily obtain supplies of "glatt" meat in Belgium. Furthermore, it is apparent from the written depositions and bailiffs' official reports produced by the interveners that a number of butcher's shops operating under the control of the ACIP make meat certified "glatt" by the Beth Din available to Jews.
82. It emerges from the case file as a whole, and from the oral submissions at the hearing, that Jews who belong to the applicant association can thus obtain "glatt" meat. In particular, the Government referred, without being contradicted on this point, to negotiations between the applicant and the ACIP with a view to reaching an agreement whereby the applicant could perform ritual slaughter itself under cover of the approval granted to the ACIP, an agreement which was not reached, for financial reasons (see paragraph 67 above).
Admittedly, the applicant association argued that it did not trust the ritual slaughterers authorised by the ACIP as regards the thoroughness of the examination of the lungs of slaughtered animals after death. But the Court takes the view that the right to freedom of religion guaranteed by Article 9 of the Convention cannot extend to the right to take part in person in the performance of ritual slaughter and the subsequent certification process, given that, as pointed out above, the applicant association and its members are not in practice deprived of the possibility of obtaining and eating meat considered by them to be more compatible with religious prescriptions.
83. Since it has not been established that Jews belonging to the applicant association cannot obtain "glatt" meat, or that the applicant could not supply them with it by reaching an agreement with the ACIP, in order to be able to engage in ritual slaughter under cover of the approval granted to the ACIP, the Court considers that the refusal of approval complained of did not constitute an interference with the applicant association's right to the freedom to manifest its religion.
84. That finding absolves the Court from the task of ruling on the compatibility of the restriction challenged by the applicant with the requirements laid down in the second paragraph of Article 9 of the Convention. However, even supposing that this restriction could be considered an interference with the right to freedom to manifest one's religion, the Court observes that the measure complained of, which is prescribed by law, pursues a legitimate aim, namely protection of public health and public order, in so far as organisation by the State of the exercise of worship is conducive to religious harmony and tolerance. Furthermore, regard being had to the margin of appreciation left to Contracting States (see the Manoussakis v. Greece judgment of 29 September 1996, Reports 1996‑IV, p. 1364, § 44), particularly with regard to establishment of the delicate relations between the State and religions, it cannot be considered excessive or disproportionate. In other words, it is compatible with Article 9 § 2 of the Convention.
85. There has accordingly been no violation of Article 9 of the Convention taken alone.
86. As regards the applicant association's allegation that it suffered discriminatory treatment on account of the fact that approval was granted to the ACIP alone, the Court reiterates that, according to the established case-law of the Convention institutions, Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to that extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.
87. The Court notes that the facts of the present case fall within the ambit of Article 9 of the Convention (see paragraph 74 above) and that therefore Article 14 is applicable. However, in the light of its findings in paragraph 83 above concerning the limited effect of the measure complained of, findings which led the Court to conclude that there had been no interference with the applicant association's freedom to manifest its religion, the Court considers that the difference of treatment which resulted from the measure was limited in scope.
It further observes that, for the reasons set out in paragraph 84, in so far as there was a difference of treatment, it pursued a legitimate aim, and that there was "a reasonable relationship of proportionality between the means employed and the aim sought to be realised" (see, among other authorities, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 16, § 33). Such difference of treatment as there was therefore had an objective and reasonable justification within the meaning of the Court's consistent case-law.
88. There has accordingly been no violation of Article 9 taken together with Article 14 of the Convention.
2. Holds by ten votes to seven that there has been no violation of Article 9 taken together with Article 14 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 June 2000.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Sir Nicolas Bratza, M. Fischbach, Mrs Thomassen, Mrs Tsatsa-Nikolovska, Mr Panţîru, M. Levits and Mr Traja is annexed to this judgment.
Initialled : L. W. Initialled : M. B.
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.
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 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, p. 34, § 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 read together with Article 14 of the Convention, 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, 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 taken together with Article 9 of the Convention, 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 the Thlimmenos v. Greece judgment of 6 April 2000 (Thlimmenos v. Greece, [GC], no. 34369/97, § 40, ECHR 2000).
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 February 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 is in an analogous situation to that of the ACIP.
The respondent Government submitted that the difference in treatment between the ACIP and the applicant 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 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'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 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 had therefore been necessary, they argued, for the protection of 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, 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 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 88 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 judgment, stressing the margin of appreciation left to States, "particularly with regard to establishment of the delicate relations between the State and religions".
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 (see paragraph 44 of the Manoussakis judgment).
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 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 taken together with Article 9 of the Convention.
Protocol No. 11 came into force on 1 November 1998.
. The full text of the Commission's opinion and of the dissenting opinions contained in the report will be reproduced as an annex to the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission's report is obtainable in the meantime from the Registry.


Corporations like Microsoft, Google, and Facebook—and the billions they have generated— have provided proof that software can be inventive, but the Supreme Court has weighed in again and drawn us back to the dark ages of uncertainty surrounding computer-related patents, raising questions whether such inventions are too “abstract” to merit patent protection.
The US Court of Appeals for the Federal Circuit (Federal Circuit), charged with interpreting patent law, has issued recent decisions that have magnified this uncertainty. Although this court and others have attempted to develop a succinct test for computer-related inventions, no test has survived the Supreme Court’s review as being a definitive test. Despite the uncertainty, recent cases provide some clues about how companies with computer-implemented inventions can maximize their chances of protecting their business with patents.
[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Patents directed to computer-related technology possibly qualify as patent-eligible subject matter under the categories of “process” (formulated as method claims), “machine” (apparatus or system claims) or “manufacture” (often formulated as computer-readable medium claims).
Despite the many ways computer-related technology might fit within one of these categories, patentability has never been guaranteed. Over the years, judicially-created exceptions have arisen, excluding claims directed to abstract intellectual concepts. Problems arise for computer-related process claims because they are often drafted abstractly to encompass myriad computer systems on which an invention might be implemented.
Our era of uncertainty began 40 years ago in the US Supreme Court case, Gottschalk v. Benson, in which the patentability of a technique for converting binary-coded decimal numbers to pure binary form was challenged. The Court found the claim at issue to be too abstract, viewing it as a fundamental idea or algorithm. The Court worried that allowing such a claim could exclude fundamental R&D tools from the public domain.
Indirect attempts [to patent programs] by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further and should not be permitted.
Despite advances in technology in the 40 years since, this caution has resurfaced as a tool for refusing patent protection for computer-related inventions.
Challenges to the patentability of computer-related claims subsided after the landmark 1998 State Street decision, and patent practitioners settled into a comfortable groove for getting patents granted. A disruption occurred in 2010 when the Supreme Court, in In re Bilski, relegated the settled machine-or-transformation test for determining which computer-implemented inventions could be patented to being merely a “useful clue”.
Several perplexing Federal Circuit decisions followed. Some decisions and dissents combined other requirements for patentability (novelty, non-obviousness) with the identification of patent-eligible subject matter. Others viewed the inquiry as simply a threshold question. Some cases focused only on the language of the claims, while others focused on the gist of the invention. These recent Federal Circuit decisions have failed to provide clarity as to how patent-eligible, computer-related, inventions can be separated from unpatentable abstract ideas.
A notable criterion for invalidating all types of claims within a computer-related patent emerged from the Benson caution and became entrenched as a “form-over-function” sword. An example of its use appears in the Bancorp Services v. Sun Life case (decided July 2012). The patents were directed to computer-implemented methods and systems for tracking values of life insurance policies subject to market volatility. The court first evaluated the system and computer-readable-medium claims to be equivalents of the process claim. The court invalidated the process claim as directed to patent-ineligible matter, and swept the apparatus (machine) and computer-readable-medium (manufacture) claims into the same invalidity bucket as clever attempts at claim drafting, i.e., form over function. Such a readiness to ignore the words of the claims that recited things squarely within the categories deemed by statute to be patentable came as a shock to many patent practitioners.
Within the first 10 months of 2012, the Federal Circuit decided two other notable cases, CLS Bank International v. Alice Corp. and Dealertrack v. Huber. CLS involved patents directed to computer-implemented methods and systems for tracking volatile asset values of two parties obligated under a purchase and sale agreement. The patents in Dealertrack were directed to a computer-aided method for processing auto loan applications.
The primary analysis used in Bancorp and Dealertrack to invalidate the claims followed an “underlying invention” approach. In Dealertrack, the claims were notably distilled down to a few paraphrased steps. The analyses looked at the underlying inventions and declared them either abstract or nothing more than an automation of manual tasks. The CLS claims survived the § 101 microscope, because the court took an opposite approach, analyzing the claim as a whole in light of the specification, and spoke out against paraphrasing and over simplifying a claim. Whether CLS stands, however, awaits a full court rehearing.
These seemingly inconsistent results highlight the problem of determining whether computer-related subject matter is patent eligible, or whether it constitutes an unpatentable abstract idea. With enough work, any claim can be distilled to an abstract idea, and the ultimate conclusion on abstractness depends on a subjective decision of when to stop distilling.
The Federal Circuit attempted to counter this potential problem in Research Corp. v. Microsoft (decided December 2010) by deeming claims unpatentable only if they are “manifestly abstract.” However, as more recent cases show, this view has not been universally followed.
Despite the discord and uncertainties, there are measures patent drafters can take to increase the survivability of claims to computer-related inventions. A first and important step is to gain a detailed understanding of the invention. Patent attorneys strive to present every invention in broad terms, not restricted by any specific implementation. Describing the details of code or system architecture could render a patent too easy to design around. Yet, the tried and true practice of drafting a broad description greatly increases the risk that a claim will be deemed too abstract to be patent-eligible.
Balancing these competing concerns means that a patent drafter must really understand the invention, and discern new, commercially valuable functionality. To provide the best chances of surviving a challenge, a claim must express that functionality in a way that encompasses how competitors would use a machine to implement it.
The CLS, Dealertrack, and Bancorp courts, though arriving at opposite results, were united in their views that patent-eligible, computer-related claims should set forth a specific way in which a computer or processor is integrally involved in the method, and that the computer involvement must do something more than could otherwise be done manually. This is particularly important for areas of technology directed primarily to financial services and information exchange. Merely executing a process faster or with greater efficiency using a computer has been deemed insufficient to confer patent eligibility—which forces a patent drafter to really understand how a specific structure or operation in a computer system leads to the benefits of the invention.
Equally important is detailing these aspects in the specification. The specification should not merely summarize what the invention can do, but should leave no doubt that it is intended to be implemented with some computer hardware. Detailed flow charts have sometimes been key in saving a claim. Pertinent sections of computer code may also help sell a court that the invention is more than an abstract idea.
It is also important to assess whether the claims reach for too much scope. Every patent holder wants a broad claim, but for computer-implemented methods, a broad claim more easily runs the risk of being found abstract, particularly by courts who draw in requirements of novelty and non-obviousness into the abstractness analysis. Worse, the fatal contagion can spread from method claims to invalidate system and computer-readable medium claims. Analysis of the prior art before claim drafting may provide extra benefits in these scenarios. It may also be worth filing a separate application with only system claims, avoiding contagion from a process claim deemed too abstract.
Confusion over the test for computer-related subject matter has raised the bar for protecting valuable computer-implemented inventions. A deeper understanding of the invention, and its interaction with a computer system, will be necessary to draft claims that survive the test for excluding patenting of abstract ideas—if and when that test is ever articulated by the courts.


The cases were tried before Renee P. Dupuis, J.
Michelle Menken for the defendant.
WENDLANDT, J. Following a jury trial, the defendant was convicted of armed robbery while masked, pursuant to G. L. c. 265, § 17, and assault by means of a dangerous weapon, pursuant to G. L. c. 265, § 15B(b). On appeal, the defendant argues that there was insufficient evidence to support the conviction under Commonwealth v. Morris, 422 Mass. 254 (1996). Applying the Supreme Judicial Court’s jurisprudence regarding the sufficiency of fingerprint evidence found on a moveable object at a crime scene to the deoxyribonucleic acid (DNA) evidence in this case, we agree.
Background. On July 3, 2013, two men broke into a Burger King in Easton at around 11:30 P.M. and stole approximately $ 3,000. Both men were described by the restaurant manager, who was present during the robbery, as African-American and wearing blue surgical masks. The first assailant was approximately six feet tall, and armed with a gun; he wore a dark hooded sweatshirt. The second assailant, who wore a tan hooded sweatshirt, was “a little bit taller” than the armed man.
Surveillance recordings from the Burger King and the neighboring Dunkin’ Donuts captured images of both men as they fled the crime scene. The recordings showed the second assailant removing his mask and, as he is fleeing the crime scene, tossing something into the Dunkin’ Donuts plaza. His profile was captured in one of the recordings; however, the recording (and the still photographs captured from it) were grainy and of extremely poor quality. The surveillance recordings also captured a white vehicle matching the make and model of the defendant’s mother’s vehicle.
One of the police officers who responded to the crime scene discovered two cloth items — a white toddler-sized T-shirt and a blue knotted bandana — in the Dunkin’ Donuts plaza. The Commonwealth’s theory was that the defendant was the second assailant. Based on the recordings, the Commonwealth argued that the second assailant threw the cloth items into the Dunkin’ Donuts plaza as he passed it and that he wore the T-shirt as a mask during the robbery, while his coventurer wore the bandana.
The T-shirt and the bandana were tested for DNA. First, a criminologist collected two samples from the T-shirt — one from the interior of the T-shirt and one from the exterior. She also collected one sample from the bandana. Each of the samples was collected by scraping the material with a scalpel to loosen any skin cells that may have been imbedded in the fibers and then taking a swab. Second, a DNA analyst tested the samples to determine whether the defendant’s DNA matched the DNA on the samples. Each sample from the T-shirt had the DNA of more than one person; the bandana contained DNA from at least three individuals.
For the T-shirt samples, the major profile matched the defendant’s DNA profile. One of the major profiles of the bandana also matched the defendant’s DNA profile. The DNA analyst could not determine when any of the defendant’s DNA was deposited on either the T-shirt or the bandana.
The defense at trial was that the defendant was in Quincy at the time of the Easton robbery. Three witnesses testified in support of his alibi. Quincy police Officer Stephen O’Donaghue testified that he had seen the defendant, along with his friend, Mark Cram, at a street festival in Quincy sometime between 5:00 P.M. and 7:00 P.M. Cram similarly testified that he had been with the defendant at the festival until approximately 9:30 P.M., when Cram got into a fight and suffered an eye injury. According to Cram, the defendant accompanied him first to his mother’s home and then to the hospital, both of which were in Quincy. Cram’s mother, Marie Lawson, corroborated that the defendant had brought Cram home and had accompanied them to the hospital around 10:45 P.M. Cram and Lawson testified that the defendant remained alone in Lawson’s medical transportation van, which had a wheelchair sticker on the back, in an emergency parking spot while Cram was treated in the emergency department. Lawson testified that they left the hospital around midnight or 1:00 A.M., and returned to her home where the defendant remained until at least 3:00 A.M.
The evidence also showed that the defendant’s brother had been involved in a robbery in Weymouth with a similar modus operandi. In particular, a couple of months after the Easton robbery, the brother was arrested, along with another man, following an armed robbery of a store in Weymouth. As in the Easton robbery, both men were armed and masked. Furthermore, the brother, who lived with his mother and had access to and often drove her vehicle, was driving the mother’s vehicle just prior to the Weymouth robbery. A search of the trunk of the vehicle revealed several items of clothing, and the brother’s driver’s license was found in the center console. Following the Weymouth robbery, the brother fled to Rhode Island and was eventually captured. In addition to comparing the defendant’s DNA to the DNA from the T-shirt and bandana samples from the Easton robbery, the DNA analyst also compared the brother’s DNA to these samples. His DNA profile was not a major profile on any of the three samples, but he could not be ruled out as a minor profile on either the T-shirt (because the data were insufficient for testing) or the bandana (because the mixture was too complex).
Discussion. 1. Application of Morris to DNA. On appeal, we must first consider whether the principle articulated in Morris and its progeny concerning fingerprint evidence applies to the DNA evidence in this case. In Morris, the defendant was convicted of murder in the first degree and armed assault in a dwelling, based on a fatal shooting by masked intruders. 422 Mass. at 254-255. One intruder wore a clown mask. Id. at 255. At trial, the Commonwealth introduced evidence that the defendant’s thumbprint was found on a clown mask that was left by an intruder at the scene of the crime. Id. at 256. The Supreme Judicial Court reiterated the principle that where “the only identification evidence is the defendant’s fingerprint at the crime scene, the prosecution must prove beyond a reasonable doubt that the fingerprint was placed there during the crime.” Id. at 257, citing Commonwealth v. LaCorte, 373 Mass. 700, 703 (1977) (“[W]hen fingerprints constitute the only identification evidence, most jurisdictions require the prosecution to establish beyond a reasonable doubt that the fingerprints in fact were placed at the scene during the commission of the crime”). Thus, although fingerprint evidence is generally admissible and certainly can be powerful evidence in support of the Commonwealth’s case, for the purpose of establishing the sufficiency of the evidence, we have “generally recognized that fingerprint evidence found at the scene of a crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime.” Commonwealth v. Baptista, 32 Mass. App. Ct. 910, 911 (1992), quoting from Commonwealth v. Clark, 378 Mass. 392, 405-506 (1979). See Commonwealth v. French, 476 Mass. 1023, 1024 (2017); Commonwealth v. Ye, 52 Mass. App. Ct. 390, 393 (2001).
This principle applies because the presence of a fingerprint on an object alone provides insufficient data to determine when the fingerprint was placed on the object. United States v. Corso, 439 F.2d 956, 957 (4th Cir. 1971) (cited in LaCorte, 373 Mass. at 703). See Ye, 52 Mass. App. Ct. at 391-392. Indeed, fingerprints can last for months after placement. Corso, supra. See French, 476 Mass. at 1024, 1025 (noting testimony of fingerprint analyst that “a fingerprint cannot be dated and can remain on a surface for a long period of time,” and concluding that “the fingerprint could have been left at some previous time, unrelated to the break-in”). See also State v. Mayell, 163 Conn. 419, 426 (1972) (fingerprints on rearview mirror of abandoned vehicle used during robbery and used by the defendant six hours before the crime was committed in connection with his employment “does not establish his connection with the crime charged”; cited in LaCorte, 373 Mass. at 703).
According to the testimony in this case, the same is true for DNA evidence — that is, its presence on an object alone does not provide sufficient information to determine when the DNA was deposited on the object. In fact, the testimony of the DNA analyst shows that the concerns are even more acute with regard to DNA than with regard to fingerprints. The DNA analyst testified that DNA may cling to an object for decades after it is deposited. She further testified that, unlike fingerprints, an individual can deposit DNA on an object without touching it through a process called “secondary transfer.” According to the DNA analyst’s testimony, it was impossible to determine from the laboratory results when the defendant’s DNA was deposited on either the T-shirt or the bandana, whether it was the defendant who had most recently handled either object, or indeed (in view of the potential for secondary transfer) whether the defendant had directly handled the T-shirt or the bandana at all.
Given the evidence that the presence of the defendant’s DNA, like the presence of a fingerprint, did not provide sufficient information to determine when the DNA was deposited on the object, we agree that Morris governs this case. The presence of the defendant’s DNA alone was insufficient to provide the jury with enough evidence to sustain the conviction beyond a reasonable doubt.
Sufficiency of the evidence. Applying Morris, the question then is whether the DNA evidence coupled with the other evidence presented by the Commonwealth was sufficient to allow a jury to find beyond a reasonable doubt that the defendant committed the crime. In conducting our analysis, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The Commonwealth points to three items of evidence tying the defendant to the crime. First, the Commonwealth relies on the evidence that the defendant’s DNA was the only major profile on the child’s T-shirt and the bandana. Second, the Commonwealth relies on the surveillance footage showing that the make, model, and year of the car used by the assailants matched the defendant’s mother’s car. Third, the Commonwealth relies on the surveillance footage showing the second assailant and his profile.
Again, the decision in Morris informs our analysis. There, in addition to the thumbprint on the clown mask, the Commonwealth introduced evidence that the defendant matched the general description of one of the intruders, that the defendant’s mother owned a vehicle resembling one seen fleeing the scene of the crime, and that the defendant was a known associate of two of the other intruders. 422 Mass. at 258. On appeal, the court found that the evidence of the thumbprint, in combination with the other evidence of identity of the perpetrator, would have allowed a jury to reasonably infer that the defendant was one of the intruders, but that “[t]he evidence does not, however, warrant such a conclusion beyond a reasonable doubt.” Id. at 259.
Like the clown mask with a fingerprint on it in Morris, the T-shirt and the bandana with the defendant’s DNA are portable objects that suggest that the defendant, at some point, may have touched the objects. Alone, however, it does not establish that the defendant was one of the assailants who wore the objects during the crime, and is not enough to support a conviction beyond a reasonable doubt. See id. at 257-259. See also French, 476 Mass. at 1024-1025 (evidence that the defendant’s fingerprint was found on plexiglass window removed during robbery insufficient to establish beyond a reasonable doubt that the fingerprint was placed there during the crime where top of window was reachable by any passerby and had been left for several hours overnight on the ground where others could have touched it). Accord Commonwealth v. Renaud, 81 Mass. App. Ct. 261, 262-263 (2012) (electronic bank transfer card with the defendant’s name, which was found at a crime scene and taped together in three pieces, was sufficient to infer that the defendant possessed the card but was insufficient to establish that he possessed it and dropped it during the crime).
To tie the defendant to the vehicle used by the assailants, the Commonwealth points to the evidence that the vehicle on the surveillance recording was the same make and model as the mother’s vehicle, the brother used the mother’s vehicle for the Weymouth robbery with a similar modus operandi, the brother often drove the mother’s vehicle, and on at least two occasions the defendant was a passenger while the brother was driving. Such an attenuated connection to a vehicle involved in the robbery is not enough support a conviction beyond a reasonable doubt. See Morris, 422 Mass. at 257-259 (insufficient evidence even though the defendant’s mother owned a vehicle resembling one seen leaving the scene).
With regard to the second assailant’s profile on the surveillance footage, it shows that this assailant was likely a black man, about the same height and build as the first assailant. However, the profile on the surveillance recording is of such poor quality that it cannot reasonably be used for the fine analysis required to establish that the defendant’s profile matches the profile on the recording. The still images from the surveillance recording are even grainier. Accord Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 328 (2000) (witness’s identification of an individual based on his familiarity with the defendant properly admitted because, inter alia, videotape of crime was “of poor quality although not ‘hopelessly obscure’”).
Here, taken as a whole, the evidence does not support conviction beyond a reasonable doubt. See Morris, 422 Mass. at 257-260.
Judgment to enter for the defendant.
 Subsequent to the filing of the defendant’s brief in this court, the Commonwealth dismissed the defendant’s conviction of assault by means of a dangerous weapon.
 Over trial counsel’s objection, a still image from the booking recording of the defendant was shown to the jury, and the defendant was asked to stand with his profile to the jury, ostensibly to allow the jury to compare the defendant’s profile to the grainy profile captured on the surveillance recording.
 The mother’s car was a 2005 Cadillac CTS, and an automotive expert opined that the vehicle captured on the surveillance recording was a 2004 or 2005 Cadillac CTS.
 Based on the recordings, the jury could have found that the manager was mistaken that the assailants wore blue surgical masks.
 The criminologist testified that there were so many stains on the T-shirt that no tests were performed to determine the DNA of the fluids on the T-shirt. The criminologist was able to test one stain on the bandana for bodily fluids; however, the test came back negative.
 The frequency of occurrence of the major profile in the African-American population was one in 23.25 quadrillion; in the Asian population, one in 143.1 quadrillion; in the Caucasian population, one in 239.6 quadrillion; and in the Hispanic population, one in 29.10 quadrillion. Using an updated database from the National Institute of Standards and Technology, the statistics show that the frequency of occurrence in the African-American population was one in 25.76 quintillion; in the Asian population, one in 569.8 quintillion; in the Caucasian population, one in 500.5 quintillion; and in the Hispanic population, one in 70.22 quintillion.
 The frequency of occurrence of the major profile in the African-American population was one in 260,000; in the Asian population, one in 1.588 million; in the Caucasian population, one in 4.429 million; and in the Hispanic population, one in 1.110 million.
 Cram, who had consumed alcohol and then pain medication that evening, believed that it was 10:00 P.M. when they left for the hospital.
 The second assailant in the Weymouth robbery was shorter and heavier than the second assailant in the Easton robbery.
 Here, the Commonwealth provided no evidence suggesting more rapid DNA degradation. Cf. Diaz vs. Hughes, U.S. Dist. Ct., No. SA CV 14-1819-SJO(E) (C.D. Cal. Jan. 27, 2015).
 The DNA analyst described secondary transfer as follows: (i) an individual touches one object, depositing his DNA on it; (ii) that object then contacts an “intermediary object,” leaving the individual’s DNA on the intermediary object; and (iii) the intermediary object then touches a third object, thereby depositing the individual’s DNA on the third object.
 Accord State v. Freeman, 269 S.W.3d 422, 425 (Mo. 2008) (defendant’s DNA on toilet paper found underneath victim’s body sufficient where “opposite inference — that [d]efendant’s DNA arrived on the tissue in some innocent manner — requires an unlikely series of events”); People v. Rush, 165 Misc. 2d 821, 823 (N.Y. Sup. Ct. 1995), aff’d, 242 A.D.2d 108 (1998) (DNA evidence alone is sufficient only where “the hypothesis of guilt . . . flow[s] naturally from the facts proved, and [is] consistent with them and . . . exclude[s] ‘to a moral certainty every reasonable hypothesis of innocence’” [citation omitted]); State v. Pastuer, 205 N.C. App. 566, 574-577 (2010) (reversing denial of motion to dismiss based on insufficient evidence where the victim’s DNA was found on the defendant’s shoe because the DNA could have been deposited at a time other than during the crime); State v. Toomes, 191 S.W.3d 122, 131 (Tenn. Crim. App. 2005) (defendant’s DNA alone sufficient in the absence of any conceivable “innocent reason” for its presence); Bean v. State, 373 P.3d 372, 388 (Wyo. 2016) (“when a defendant’s presence can be innocently explained, to be relevant to establish guilt, the DNA evidence must be found in a place or manner inconsistent with innocent contact”).
 In fact, although the presence of a fingerprint on an object suggests a particular person (the person whose fingerprint matches) touched the object, the testimony of the DNA analyst suggests that the evidence of DNA matching the defendant’s DNA on the objects (without more) establishes only that the defendant may have touched something or someone that then touched the objects.
 In the Weymouth robbery, another man was the leading suspect as the brother’s coventurer; however, that man’s physical attributes do not match the description of the second assailant in the Easton robbery.
 Because we reverse the judgment on this basis, we need not address the defendant’s remaining arguments.