Denial of permission for prisoner to attend religious services outside prison during COVID-19 pandemic did not violate Convention
JUDGMENT
Constantin-Lucian Spînu v. Romania 11.10.2022 (app. no. 29443/20)
SUMMARY
The case concerned a refusal by the national authorities, on grounds of measures taken during the
COVID-19 pandemic, to let a prisoner attend religious services outside Jilava Prison.
The Court concluded that the decision of the prison authorities to deny the applicant leave to attend
his church’s religious services outside the prison had not been taken without considering his
individual situation and the changing circumstances of the public health crisis. Having regard to the
leeway (“margin of appreciation”) that was to be afforded to the national authorities under the
specific and novel circumstances of the crisis, the Court determined that the applicant’s right to
manifest his religion had not been infringed.
PROVISION
Article 9
PRINCIPAL FACTS
The applicant, Constantin-Lucian Spînu, is a Romanian national who was born in 1973. He has been a
prisoner at Jilava Prison in Romania since June 2019.
Mr Spînu identifies as a member of the Seventh-Day Adventist Church. From June 2019 to
February 2020 he was allowed to leave the prison to attend Adventist Church services. In July 2020
he applied to the prison authorities for permission to attend a Sabbath service every Saturday at an
Adventist church in Sector 6 of Bucharest. The prison governor denied his request. The applicant
challenged that decision in the national courts, where his claim was dismissed on the basis of the
COVID-19 Pandemic Prevention and Response Act (Law no. 55/2020). The courts reasoned that the
permitted scope for extramural activities was limited by the public health situation arising from the
COVID-19 pandemic.
THE DECISION OF THE COURT…
Article 9
The Court noted that before the start of the public health crisis the prison authorities had granted
the applicant leave to attend church under the regulations in force. The Court therefore accepted
that the matters complained of by the applicant had amounted to an interference with his right
under Article 9 of the Convention.
Regarding the grounds of the interference, the Court noted that it had been prescribed by
Law no. 55/2020, whose section 61 contained provisions allowing restrictions to be placed on day
release arrangements for prisoners because of the COVID-19 pandemic.
Regarding the legitimate aims relied on by the Government, the Court accepted that the measure
in issue had been taken to protect the health and safety of prisoners and anyone who might come
into contact with them, and to protect public health in general. It pointed out that the protection of
public health was one of the aims listed in Article 9 of the Convention as capable of warranting a
limitation on the freedom to manifest one’s religion.
As to whether the interference had been necessary in a democratic society, the Court noted that
the limitation on the applicant’s right to freedom of religion had been directed only at a single
dimension of the exercise of that right in that it had concerned only his participation in religious
worship at his church outside the prison. It was not the applicant’s case that he had been prevented
from practising his religion in any other way while in prison or that he had made other requests that
had been denied. The Court also observed that the church’s activities 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.
Furthermore the Court felt that the changing and unforeseeable nature of the public health situation
must have posed a number of challenges to the prison authorities in relation to the organisation and
supervision of prisoners’ religious activities. Accordingly it took the view that 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 interact 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 that closed environment must surely have carried
considerable weight in the prison authorities’ assessment, at a time when the preventive measures
in place were centred on contact restrictions, isolation and quarantining, among other strategies.
The Court accepted that the authorities had been in a difficult position to respond instantaneously
to the public health situation, let alone to each new development the moment it arose.
In addition, the Court took into account the alternatives that had been offered and the fact that
Jilava Prison had introduced the use of video-conferencing for Adventist worship. That solution,
introduced by the prison authorities, was consistent with the practices that had developed generally during the health crisis; the recommendation by the CPT2 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. The Court noted the applicant’s refusal to take part in the
online activities and his failure 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 Court found that the national authorities had exercised reasonable efforts
to counterbalance the restrictions imposed during the pandemic.
Lastly, the Court noted that the applicant’s complaint concerned a situation at a particular juncture
rather than a continuing situation which would have exempted him from the requirement to pursue
the legal avenues open to him under domestic law or at least to resubmit his requests in the light of
the shifting course of the pandemic. In the Court’s view, the unforeseeable and unprecedented
nature of the health crisis entitled the prison authorities to considerable leeway and would have
made it hard for them to establish an immediate response protocol on their own initiative. It further
noted that the applicant had not provided any concrete details concerning his situation
post-July 2020, including the manner in which he had thereafter exercised his freedom of religion.
Consequently the Court concluded that the prison authorities’ decision to deny the applicant leave
to attend his church’s religious services outside the prison had not been taken without considering
his individual situation and the changing circumstances of the public health crisis. Having regard to
the margin of appreciation that was to be afforded to the national authorities under the specific,
novel circumstances of the crisis, the Court determined that the applicant’s right to manifest his
religion had not been infringed.
Accordingly, there had been no violation of Article 9 of the Convention.
