Requiring a prisoner to prove in writing a change of religion and his conversion to Islam in order to remove pork from his diet. Violation of religious freedom
JUDGMENT
Neagu v. Romania 10.11.2020 (app. no. 21969/15)
SUMMARY
The case concerned a prisoner who had converted to Islam while in detention. He complained of the
refusal of the Romanian authorities to provide him with pork-free meals, in accordance with the
precepts of his religion, unless he furnished proof that he was an adherent of that religion.
The Court found that, bearing in mind the provisions introduced by the order of the Ministry of
Justice requiring, among other things, written proof of a change of religion occurring in the course of
detention, the national authorities had upset the fair balance to be struck between the interests of
the prison, those of the other prisoners, and the individual interests of the prisoner concerned
(Mr Neagu).
The Court also made clear that it was not persuaded that Mr Neagu’s requests to be provided with
meals compatible with his religion would have caused problems in running the prison or have had a
negative impact on the diet offered to other prisoners
THE DECISION OF THE COURT…
The applicant, Dănuț Neagu, is a Romanian national who was born in 1987 and lives in Gropeni
(Romania).
In 2009 Mr Neagu was remanded in custody and declared that he was an Orthodox Christian. He
subsequently received a prison sentence and was detained between 2009 and 2017 in various
Romanian prisons.
In the proceedings before the Court Mr Neagu explained that during the first three years of his
detention he had made the acquaintance of some Muslim prisoners and had converted to Islam.
In 2012, while he was being detained in Galaţi Prison, he informed the prison management that he
had converted to Islam and requested pork-free meals. His request was refused.
Mr Neagu was subsequently transferred to Brăila Prison, where he made repeated requests to be
provided with pork-free meals. His requests were refused on the grounds that he had not produced
any documentary proof of his conversion.
Mr Neagu appealed to the judge responsible for reviewing detention and later to the first-instance
court, without success.
Relying on Article 9 (right to freedom of thought, conscience and religion) of the Convention,
Mr Neagu complained of the Romanian authorities’ refusal to recognise his conversion to Islam.
Under Article 3 (prohibition of inhuman or degrading treatment), he complained of the fact that the
Romanian authorities had continued to serve him meals containing pork, contrary to the precepts of
his religion.
THE DECISION OF THE COURT…
Article 9 (right to freedom of thought, conscience and religion)
The court noted that Law no. 254/2013 and the secondary legislation implementing it made express
provision for the right of prisoners to receive meals compatible with the precepts of their religion.
There had therefore been an overall legislative framework that had been sufficiently foreseeable
and detailed regarding the exercise of the right to freedom of religion in a prison setting. The
European Prison Rules, in force at the relevant time and read in the light of the commentary thereto,
contained similar provisions.
In addition, Order no. 1072/2013, which constituted the applicable national law in this sphere,provided that prisoners could solemnly declare their religious affiliation when they were admitted to prison and, if they converted while in detention, could produce a solemn declaration at that juncture
and a document confirming their new religious affiliation.
In that connection the Court observed that Mr Neagu had had access to the order in question and
that its content had been foreseeable. It also noted that the applicant had not raised any arguments
before the domestic courts alleging that Order no. 1072/2013 had been unlawful, and had not given
them an opportunity to assess its lawfulness. Nor had he contended that the order had previously
been found to be unlawful or that there existed settled case-law of the domestic courts to that
effect.
In these circumstances, and in the absence of any examination by the domestic courts, the Court
could not accept Mr Neagu’s argument that the requirement to furnish written proof of his
conversion had lacked any legal basis, as it had stemmed from a law of lower rank than a statute.
It remained for the Court to ascertain whether the requirement laid down by Order no. 1072/2013
for the individuals concerned to furnish documentary proof of their religious conversion in order to
be allowed to practise their religion was consistent with the national authorities’ positive
obligations.
The Court noted that the requirement referred to in Order no. 1072/2013 concerned only prisoners
who converted in the course of their detention, as in all other cases prisoners could declare their
religious affiliation simply by means of a solemn declaration. Moreover, the order in question 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 a regulation, 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 a situation where prisoners were initially free to declare their
religion without furnishing any proof.
Furthermore, in considering Mr Neagu’s complaint concerning Brăila Prison, 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 Mr Neagu
would have 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.
The Court reiterated that, save in very exceptional cases, the right to freedom of religion under the
Convention 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.
The Court took note of the Government’s argument that the obligation arising out of Order
no. 1072/2013 was designed to prevent an abuse of rights, and of the fact that Mr Neagu had
changed religion a second time and had requested meals compatible with the specific dietary rules
of the Adventist faith. It noted in that regard that the domestic courts which had examined the
applicant’s request had not deemed it to amount to an abuse on his part.
The Court therefore considered that, bearing in mind the provisions introduced by the order of the
Ministry of Justice requiring, among other things, written proof of a change of religion occurring in
the course of detention, the national authorities had upset the fair balance 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 it was not persuaded that Mr Neagu’s requests to be provided with meals
compatible with his religion would have caused problems in running the prison or have had a
negative impact on the diet offered to other prisoners.
Accordingly, and notwithstanding the margin of appreciation left to the respondent State in the
matter, the Court held that the national authorities had not complied, to a degree that was
reasonable in the circumstances of the case, with their positive obligations under Article 9 regarding
the meals served to Mr Neagu in Brăila Prison. There had therefore been a violation of Article 9 of
the Convention.
Just satisfaction (Article 41)
The Court held that Romania was to pay Mr Neagu 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 215 in respect of costs and expenses.
Separate opinion
Judge Paczolay expressed a dissenting opinion joined by judge Grozev which is annexed to the
judgment.
