Information Note on the Court’s case-law 241
June 2020
Erlich and Kastro v. Romania - 23735/16 and 23740/16
Judgment 9.6.2020 [Section IV]
Article 9
Positive obligations
Article 9-1
Freedom of religion
Appropriate measures taken by prison authorities in the execution of a judgment recognising the right of Jewish prisoners to have kosher meals: no violation
Facts – The two applicants are Israeli nationals of Jewish faith detained in prison. They complained of an infringement of their freedom of religion on account of the failure of the prison authorities to provide them with meals complying with the precepts of their religion.
Law – Article 9: The applicants’ complaints were examined in the light of the positive obligations flowing from Article 9.
Judaism is one of faiths religions officially recognised by the Romanian State. National legislation sets out the procedure for implementing the exercise of the right to freedom of religion in prison, including provisions on foodstuffs required for the observance of religious precepts. The relevant legislation contains a sufficiently foreseeable and detailed general prescriptive framework. The decision whether or not to adopt detailed regulations on the practical exercise of a given religion in prison falls within the margin of discretion available to the State authorities. At the material time only eight persons of Jewish faith were detained in Romanian prisons.
The court of first instance (the court) had come down in favour of a customised solution tailored to the applicants’ specific needs, thus offsetting the lack of a specific statutory framework for Jewish prisoners and providing a solution which could be implemented immediately. The court ordered the prison authorities to ensure that the applicants could receive kosher meals on a daily basis and in sufficient quantity to meet their personal needs, to distribute the meals under the same conditions as for other prisoners, and to arrange for their storage for days on which they could not be delivered. The national courts had therefore duly examined the applicants’ requests and promptly issued a judicial decision in their favour. That judgment had been executed by the prison authorities.
The situation in the present case was different from that in Jakóbski and Vartic (no. 2), where the applicants had requested vegetarian meals which had not required any special mode of preparation, cooking or service, nor had the provision of such meals had any negative consequences in terms of prison management or the quality of the meals provided to other prisoners. In this case, the kosher meals had to contain special ingredients obtained by following very specific rules, and had to be prepared separately, in separate containers and with separate utensils, in a particular manner and under the supervision of a representative of the religion in question.
The prison authorities co-operated with a Jewish religious foundation in implementing the judgment. In agreement with this foundation, a separate area was fitted out in the prison kitchen. Jewish prisoners helped prepare the meals. In accordance with the European Prison Rules, that approach allowed the prisoners to discover the positive aspects of communal life. The foundation had subsequently been present in the prison during Jewish religious festivals, supplying the applicants with specific foodstuffs for the occasion. The foundation’s involvement, although not decisive, was an important criterion for assessing how the domestic authorities had fulfilled their positive obligations under Article 9.
Furthermore, the court had permitted the applicants to obtain, by derogation from the applicable rules, foodstuffs which could be cooked and prepared on the spot. They had obtained those products by their own means. Although such an arrangement was not contrary to the European Prison Rules per se, it was not supposed to impose an objectively intolerable financial burden on the applicants. In that regard, the court had informed them that they could apply for reimbursement of any expenses by lodging a separate civil action. The applicants had apparently failed to do so, and had not stated any objectives reasons that might have prevented them from doing so. Nor had they put forward any argument casting doubt on the effectiveness of such civil proceedings. Furthermore, they had at no stage claimed that they had presented the prison authorities with a specific detailed request for reimbursement and had had their request turned down.
A whole set of appropriate measures had thus been put in place by the prison authorities, and the domestic authorities had done all that could reasonably have been expected of them to respect the applicants’ religious convictions, particularly since kosher meals had to be prepared under special, strict conditions.
The national authorities had thus honoured their positive obligations to a reasonable degree given the particular circumstances of the case.
Conclusion: no violation (unanimously).
(See also X v. the United Kingdom, 5947/72, Commission decision of 5 March 1976; Cha’are Shalom Ve Tsedek v. France [GC], 27417/95, 27 June 2000, Information Note 19 ; Jakóbski v. Poland, 18429/06, 7 December 2010, Information Note 136; and Vartic v. Romania (no. 2), 14150/08, 17 December 2013)
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This summary by the Registry does not bind the Court.
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