Legal summary

October 2022

Constantin-Lucian Spînu v. Romania - 29443/20

Judgment 11.10.2022 [Section IV]

Article 9

Article 9-1

Manifest religion or belief

One-off refusal, on COVID-19 grounds, of permission for prisoner to attend church services outside prison which subsequently offered online access to religious support: no violation

Fact – Before the start of the public health crisis the prison authorities had given the applicant prisoner permission, under the regulations in force, to attend Adventist church services outside the prison. On 8 July 2020 they denied his request to attend every Saturday for a Sabbath service, citing as grounds for their decision the measures introduced during the COVID-19 pandemic. The applicant’s challenges to the decision denying his request were unsuccessful.

Law

Preliminary observations – On 8 July 2020, when the decision in issue had been taken, the derogation announced by the authorities under Article 15 of the Convention, relating to the health crisis and the specific measures taken in connection with the declaration of a state of emergency, had ceased to have effect. Accordingly, for the purposes of its examination of the case, the Court would have regard to the provisions of Article 9 alone.

Article 9:

Before the start of the public health crisis the prison authorities had given the applicant permission to attend church under the regulations in force. Their denial of his request for permission to attend an Adventist church to take part in religious worship had constituted an interference with his right under Article 9. The interference had been prescribed by a statute allowing restrictions to be placed on day release arrangements for prisoners because of the COVID‑19 pandemic; its purpose had been to protect the health and safety of prisoners and anyone who might come into contact with them, and to protect public health in general. In a similar case ( Fenech v. Malta ) the Court had already held the prison authorities to be under a duty, in the circumstances of the COVID-19 pandemic, to take measures to prevent infection, limit the spread of the virus once it reached a prison and provide adequate medical care in the event of infection. Public health was also a recognised ground in international law for limiting certain rights.

The limitation had been directed at just one dimension of the applicant’s exercise of his right to freedom of religion, namely his participation in religious worship at his church outside the prison.

The applicant had been given permission to leave the prison before the start of the public health crisis, and the authorities had not regarded his doing so as problematic at the time. However, the limitation in question had to be assessed in the light of the ever‑changing circumstances of the health crisis. The Court noted in this regard that the applicant had made his request on 8 July 2020, during the state of alert whose governing legislation had provided for a gradual easing of the conditions previously imposed. The Bucharest County Court had confined itself to noting that church activity had been suspended, and those observations had been rather general in character to the extent that the court had not looked at the situation of the Adventist church in question. The church’s activity had been affected by the public health crisis during the relevant period, since attendance at religious services had been made subject to certain requirements, or suspended outright, for all members of the applicant’s religious community and representatives of the faith. The changing circumstances of the public health situation and its unforeseeability must have posed a number of challenges to the prison authorities in relation to the organisation and supervision of prisoners’ religious activities. Accordingly those authorities had to be afforded a wide margin of appreciation, especially as the applicant in this case had been seeking permission to leave the prison and have contact with people who were not themselves inmates or staff of the prison. Specifically, the value of the principle of social solidarity had to be considered in the particular context of the prison setting. For instance, the risk of the applicant’s being infected outside the prison and bringing the virus back into the closed prison environment must surely have carried considerable weight in the prison authorities’ assessment, at a time when the preventive measures in place had been centred on contact restrictions, isolation and quarantining, among other strategies. The authorities had been in a difficult position to respond instantaneously to the situation, let alone to each new development in the public health situation the moment it arose.

The prison where the applicant had been detained had introduced the use of video-conferencing for Adventist worship and had been the first to offer online access to religious support. That solution was consistent with the practices which had become widespread during the health crisis, and the recommendation by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – that any restrictions on contact with the outside world should be compensated for by increased access to alternative means of communication – was along the same lines. In the Court’s view this was an important consideration. The applicant had refused to take part in the online activities and had failed to explain the reasons for that refusal in his submissions to the Court. While it was true that such measures could not entirely take the place of unmediated participation in religious services, the national authorities had made reasonable efforts to counterbalance the restrictions imposed during the pandemic.

The applicant’s complaint concerned the situation at a particular juncture. The Court had not heard any allegation from him that he had made other requests concerning the exercise of his right to respect for his freedom of religion and that those requests had been denied. The situation complained of was not, therefore, a continuing situation which would have relieved him of the obligation to pursue the legal avenues available to him under domestic law or at least to resubmit his requests in the light of the changing circumstances of the pandemic.

It followed from the foregoing that the prison authorities’ decision to deny the applicant’s request had not been taken without considering his individual situation and the changing circumstances of the public health crisis. Having regard to the wide margin of appreciation that was to be afforded to the national authorities in the specific, unprecedented circumstances of the crisis, the Court determined that the applicant’s right to manifest his religion had not been infringed.

Conclusion: no violation (unanimously).

(See also TerheÅŸ v. Romania (dec.), 49933/20, 13 April 2021, Legal summary ; Fenech v. Malta , 19090/20, 1 March 2022, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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