Last Updated on November 11, 2020 by LawEuro
Information Note on the Court’s case-law 245
November 2020
Neagu v. Romania – 21969/15
Judgment 10.11.2020 [Section IV]
Article 9
Positive obligations
Article 9-1
Change religion or belief
Freedom of religion
Manifest religion or belief
Prisoner required to prove religious conversion during detention, through a document issued by faith representatives, to receive meals compatible with his new religion: violation
[This summary also covers the judgment Saran v. Romania, no. 65993/16, 10 November 2020]
Facts – In the case of Neagu the applicant, when he was remanded in custody in 2009, stated that he was an Orthodox Christian. In 2012, while in prison, he informed the prison management that he had converted to Islam and requested pork-free meals. His request was refused. The applicant was subsequently transferred to a different prison where he reiterated his request several times. All his requests were refused on the grounds that he had not produced any document issued by faith representatives proving that he had converted. His appeals were all dismissed. The same situation occurred in 2016 when he requested meals compatible with the Adventist faith in a different prison.
In the case of Saran the applicant served his prison sentence in several different prisons. He stated that he had told the authorities that he was a Muslim when he was imprisoned in April 2016. According to the Government, he had declared himself to be an Orthodox Christian. The applicant did not receive meals compatible with his Muslim beliefs in one of the prisons where he was detained.
Law – Article 9:
The Court had recently specified, in the context of exemption from military service, that where an individual requested a special exemption on account of his or her religious beliefs or convictions, it was not excessive or in fundamental conflict with freedom of conscience to require some level of substantiation of genuine belief and, if that substantiation was not forthcoming, to reach a negative conclusion (see Dyagilev v. Russia, 49972/16, 10 March 2020, Information Note 238).
The relevant regulations had introduced a distinction between the initial declaration of religion, which the prisoner could make freely and without particular formalities when he or she was admitted to prison, and a change of religion in the course of detention, which the prisoner had to prove by means of a document issued by representatives of his or her new faith. In the Court’s view, such regulations, entailing a strict requirement to provide documentary proof of adhering to a specific faith, went beyond the level of substantiation of genuine belief that could be required. This was especially true in situations where, as in the present case, prisoners were initially free to declare their religion without furnishing any proof.
In the case of Neagu, both the judge reviewing the detention and the first-instance court had dismissed the applicant’s appeal without examining the factual background to his request, on the grounds that he had not furnished the written proof required by the regulations. Likewise, they had not ascertained whether the applicant had a genuine opportunity to obtain written proof or some other confirmation that he was a follower of the faith in question, particularly bearing in mind the restrictions to which he was subject as a prisoner.
Save in very exceptional cases, the right to freedom of religion was incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed. In view of the importance of ensuring that a religious conversion was serious and sincere, the national authorities’ duty of neutrality did not preclude examination of the factual aspects of the manifestation of a person’s religion. However, it did not appear from the decisions given in the present case that the national courts had sought to establish how the applicant manifested or intended to manifest his new religion.
According to the Government, the obligations arising out of the order in question were designed to prevent an abuse of rights and to protect religions. Nevertheless, the domestic courts which had examined the applicant’s request to receive meals compatible with the precepts of the Adventist faith, following his second change of religion, had not deemed the request to amount to an abuse on his part.
In the case of Saran, the first-instance court had dismissed the applicant’s appeal on the grounds that he had declared at the time of his admission to prison that he was an Orthodox Christian and had not subsequently proved that he was an adherent of Islam. However, those findings of fact did not tally with the ethical and spiritual assistance form that had been filled out when the applicant had been transferred to the prison in question, which stated that he was a Muslim. Moreover, the applicant had received meals compatible with the precepts of Islam in the first prison where he had been held, and the educational and psychosocial support records of two other prisons had also stated that he was a Muslim. There was no indication that the court had attempted to check the factual data recorded by the prison management regarding the applicant’s religious affiliation. Furthermore, the Government had not explained the discrepancies as to the applicant’s religious affiliation between the various documents issued by the national authorities. However, the authorities had a duty to make the necessary arrangements and to coordinate with each other so as to ensure that information was circulated and shared properly.
Bearing in mind the relevant provisions, the national authorities had upset the fair balance that had to be struck between the interests of the prison, those of the other prisoners and the individual interests of the prisoner concerned. In that regard the Court was not persuaded, in the case of Neagu, that the applicant’s requests to be provided with meals compatible with his religion would have caused problems in managing the prison or had a negative impact on the diet offered to other prisoners. In Saran the Court also noted that the applicant had received meals compatible with his religion in three prisons, which suggested that the Romanian prison system was capable of accommodating such requests.
As to the length of the proceedings concerning the meals served in the prison in question, the first‑instance judgment in the case of Saran had been delivered in March 2017, whereas the applicant had been transferred to a different prison in December 2016. The Government had not offered any explanation for the delay in those proceedings.
In the light of the foregoing and notwithstanding the margin of appreciation left to the respondent State in the matter, the national authorities had not complied to a reasonable degree with their positive obligations under Article 9.
Conclusion: violation (by five votes to two in Neagu; unanimously in Saran).
Article 41: EUR 5,000 to each applicant for non-pecuniary damage; claim for pecuniary damage dismissed in the case of Saran.
(See also Jakóbski v. Poland, 18429/06, 7 December 2010, Information Note 136; Dyagilev v. Russia, 49972/16, 10 March 2020, Information Note 238; Erlich and Kastro v. Romania, 23735/16 and 23740/16, 9 June 2020, Information Note 241)
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