Provision of meals to Jewish prisoners according to their religion. Respect for their religious freedom by the state authorities
JUDGMENT
Erlich and Kastro v. Romania 09.06.2020 (no. 23735/16 and 23740/16)
SUMMARY
The case concerned the provision of kosher meals to two Israeli prisoners of Jewish faith detained in
a Romanian prison. The applicants complained of the failure of the Rahova Prison authorities to
provide them with meals complying with the precepts of their religion.
In the light of the case file and the margin of appreciation enjoyed by States in this sphere, the Court
found that the domestic authorities had reasonably fulfilled their positive obligations under Article 9
of the Convention. The Court noted, among other things, that the Bucharest Court of First Instance
had come down in favour of a customised solution tailored to the applicants’ specific needs. They
had been able to obtain the products required for preparing meals in situ, in the prison kitchens,
which had been fitted out with facilities approved by a Jewish religious foundation. It also noted that
the applicants had not applied to the relevant civil courts to seek reimbursement of the expenses
which they had incurred in obtaining foodstuffs by their own means.
PROVISION
Article 9
PRINCIPAL FACTS
The applicants, Nehemia Erlich and Charli Kastro, are two Israeli nationals who were born in 1965.
They are detained in Giurgiu (Romania). The events of which they complained took place during
their detention in Rahova Prison.
On unspecified dates each applicant complained of the absence of kosher meals complying with the
precepts of their religion in Rahova Prison. In July 2015 the judge responsible for supervising
custodial penalties dismissed the applicants’ complaints on the grounds that they had received
foodstuffs from their respective families, and that they could have purchased kosher products via
the prison shop but had not asked to do so. The applicants disputed that decision.
In October 2015 the Bucharest Court of First Instance allowed their challenges, noting that Rahova
Prison lacked the necessary facilities for preparing kosher meals and that the purchase of such meals
from an outside supplier required a specific budget and a procurement procedure. Considering that
such new measures would take time to implement, the court ordered Rahova Prison to allow the
applicants to receive kosher meals on a daily basis, in return for payment and in sufficient quantity
to meet their personal needs.
The court also pointed out that the Prison should ensure the distribution of the meals under the
same conditions as for other prisoners, and facilitate their storage for days on which they could not
be delivered. As regards the cost of the meals, the court stated that the applicants could seek their
reimbursement within the limits laid down in the catering rules applicable to prisoners, by applying to the ordinary civil courts, which were competent for such matters. It transpired from the case file that the applicants had not sought reimbursement from the civil courts.
THE DECISION OF THE COURT…
Article 9 (freedom of thought, conscience and religion)
The Court observed that the Romanian State had explicitly enshrined the right to freedom of religion
both in the Constitution and in legislation, and that the Jewish religion was among the officially
recognised faiths. It also noted that a piece of legislation (Law No. 254/2013 and its implementing
regulations) set out a general prescriptive framework which was sufficiently foreseeable and
detailed on the matter of exercising the right to freedom of religion in prison.
The Court also considered that the decision to adopt detailed regulations on the practical exercise of
a given religion in prison fell within the margin of discretion available to the State authorities, which
were best placed to pronounce on local situations and needs. It noted in that connection that
according to the applicants, at the relevant time only eight persons of Jewish faith had been
detained in Romanian prisons.
The Court then noted the following.
The Bucharest Court of First Instance had come down in favour of a customised solution tailored to
the applicants’ specific needs. It had thus offset the lack of a specific statutory framework for
prisoners of Jewish faith and provided a solution that could be implemented immediately. Such an
approach sits well with the principle of subsidiarity, inasmuch as the court had adopted a practical
solution which had had the advantage that the Rahova Prison authorities were able to implement it
immediately. Those authorities had fitted out a separate kitchen for cooking kosher meals, the
conditions for whose preparation had been approved by a Jewish religious foundation which had
been consulted during the process and had supplied the applicants with specific foodstuffs.
The Court of First Instance had also permitted the applicants to obtain, by derogation from the
applicable rules, products which could be cooked and prepared on the spot. The Court had regard to
the fact that the applicants had obtained those products by their own means. It specified that an
arrangement whereby a prisoner was authorised to obtain by his own means foodstuffs which complied with the precepts of his religion should not impose an objectively intolerable financial burden on him.
In that connection, the Court noted that the Court of First Instance had informed the applicants that
they could apply for reimbursement of any expenses they had incurred by lodging a separate civil
action. However, they had not applied to the competent courts. Nor had they claimed before the
Court that there had been any objective reasons preventing them from bringing such action. Also,
they had at no stage claimed that they had presented the prison authorities with a specific detailed
request for reimbursement of the costs of the foodstuffs which they had obtained by their own
means and had had their request turned down. The Court was always careful to respect the
subsidiarity principle, and was therefore unable to speculate as to the amount actually disbursed by
the applicants in order to obtain kosher food, in the absence of any relevant decision by the
domestic authorities.
In the light of all these factors, and having regard to the margin of appreciation available to the
respondent State in that area, the Court held that in the present case the domestic authorities had
honoured, to a reasonable degree, their positive obligations under Article 9 of the Convention. There
had therefore been no violation of Article 9 of the Convention.
