ECHR ruling of November 10, 2020 in the case "Neagu v. Romania", "Saran v. Romania"" (aplication No. 21969/15).
In 2015, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Romania.
An aplication was successfully considered in the case against the fact that the detained persons were required to prove with the help of a document drawn up by a representative of the relevant religious denomination that the said persons had changed their religion in order to receive food that meets the requirements of their new religion. The cases involved a violation of the requirements of article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In the case "Neagu v. Romania" (Neagu v. Romania), the applicant, while in custody in 2009, reported that he was an Orthodox Christian. In 2012, while also in custody, the applicant notified the administration of the penitentiary institution that he had converted to Islam and demanded to provide him with food without pork. His application was denied. Subsequently, the applicant was transferred to another place of detention, where he repeated the above-mentioned request several times. All of them were rejected on the grounds that the applicant did not submit any documents from representatives of the Muslim denomination confirming that the applicant had converted to Islam. All the applicant's complaints were rejected. Similar events occurred in 2016, when in another place of detention the applicant demanded to provide him with food that meets the standards of the Adventist faith.
In the case "Saran v. Romania" (Saran v. Romania), the applicant served a sentence of imprisonment in several correctional institutions. The applicant claimed that when he was taken into custody in 2016, he told the administration of the institution that he was a Muslim. According to the Romanian authorities, the applicant described himself as an Orthodox Christian. The applicant did not receive food corresponding to his Islamic faith in one of the penitentiary institutions.
Regarding compliance with article 9 of the Convention. The European Court recently clarified in the context of the issue of exemption from military duty that if a person requires exclusive treatment because of his or her religious belief or beliefs, the requirement to prove to some extent the truth of such a religion is not an excessive burden and does not contradict the principle of freedom of conscience, and if such confirmation has not been provided, the refusal to satisfy the claims of the person who submitted the application is also not considered excessive and contrary to the principle of freedom of conscience (see The decision of the European Court in the case "Diaghilev v. Russia" (Dyagilev v. Russia) of March 10, 2020, complaint No. 49972/16).
The relevant provisions of domestic legislation have established a distinction between the first statement of religious affiliation, which a prisoner can freely and without any formalities when being admitted to a correctional institution, and a change in the prisoner's religion during serving a sentence, which the prisoner must prove with the help of a document issued by a representative of his or her new religion. According to the European Court, such norms, entailing a strict requirement to provide written proof of a person's adherence to a certain religion, went beyond the necessary confirmations of the true faith that could be needed. This is particularly applicable to situations where, as in the present case, the applicants initially had the opportunity to freely disclose their religious affiliation without providing any evidence.
In the case "Neagu v. Romania" (Neagu v. Romania), both the judges who considered the issue of the applicant's detention, as well as the court of first instance, rejected the applicant's complaints without considering them on the merits, since the applicant did not attach written evidence drawn up by a representative of the applicant's new faith, as required by Romanian law. Consequently, the judicial authorities in the present case did not specify whether the applicant had a real opportunity to obtain such a document or other confirmation that he was a follower of the religion indicated by him, especially given the restrictions to which the applicant was subjected while in a correctional institution.
Except in very rare cases, the right to freedom of religion is not in any way consistent with the State's authority to assess the legality of religious beliefs or ways of expressing them. Considering the importance of ensuring that the transition from one religion to another is a seriously considered and sincere decision, the duty of State authorities to remain neutral did not prevent the consideration of actual manifestations of a person's confession of his religion. However, it does not follow from the decisions taken in the present case that the Romanian courts tried to establish how the applicant professed his faith or intended to do so.
According to the Romanian authorities, the obligations arising from the situation under consideration were aimed at preventing the abuse of rights and protecting the right to freedom of religion. At the same time, the Romanian courts, which considered the applicant's application for special food in accordance with the provisions of the Adventist religion after the applicant had repeatedly changed his religion, did not consider that such a request was an abuse on the part of the applicant.
In the case of Saran v. Romania, the court of first Instance rejected the applicant's complaint on the grounds that at the time of admission to the correctional institution, the applicant had stated that he was an Orthodox Christian, and allegedly then did not prove that he professed Islam. However, these factual conclusions did not correspond to the questionnaire on ethnic and spiritual assistance filled out by the applicant when he was transferred to the mentioned correctional institution, which stated that the applicant was a Muslim. Moreover, in the first correctional institution, the applicant received food in accordance with the requirements of Islam, and in the registration logs of training sessions and psychological support from the other two correctional institutions, it was also noted that the applicant was a Muslim. There was no indication that the Romanian courts had attempted to verify the factual data on the applicant's religious affiliation registered by the relevant correctional officers. In addition, the Romanian authorities did not explain the discrepancies regarding the applicant's religion noted in various documents issued by the Romanian authorities. However, the domestic authorities were obliged to take the necessary measures and coordinate their actions to ensure the proper exchange of information and its dissemination.
Taking into account the relevant legal norms, the Romanian authorities did not achieve a fair balance between the interests of the correctional institution administrations, the interests of prisoners and the individual interests of the applicant. In this respect, the European Court was not convinced that in the case "Neagu v. Romania" (Neagu v. Romania), the applicant's request to provide him with food that meets his religious beliefs would cause problems for the administration of the correctional institution or would have a negative impact on the list of products for other prisoners. In the case of Saran v. Romania (Saran v. Romania) The Court also noted that the applicant had received food that corresponded to his religious beliefs in three correctional institutions, which suggested that the Romanian correctional system could have responded appropriately to the prisoners ' requests.
With regard to the length of consideration of the issue of providing food in the relevant correctional institution, in the case "Saran v. Romania" (Saran v. Romania), the decision of the court of first instance was rendered in March 2017, while the applicant was transferred to another correctional institution in December 2016. The Romanian authorities did not provide any explanations regarding the delay in this procedure.
In view of the above, and despite the discretion granted by the domestic authorities in this matter, the Romanian authorities have not fulfilled to the extent reasonably expected their positive obligation under article 9 of the Convention.
In the case of Saran v. Romania, there was a violation of the requirements of article 9 of the Convention (adopted by five votes in favor, with two against).
In the case "Neagu v. Romania" (Neagu v. Romania), there was a violation of the requirements of article 9 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded each of the applicants 5,000 euros in compensation for non-pecuniary damage. In the case "Saran v. Romania" (Saran v. Romania), the claim for compensation for material damage was rejected.