Leaving Aside Freedom of Religion Complaints
Some of us were expecting with great interest the Court’s judgment in Ali v. Romania, particularly its decision concerning the alleged violation of freedom of religion. The applicant, a Muslim serving a sentence in Rahova Prison, complained that the prayer room had been closed. The judgment came out this week. The Court’s decision on Article 9 (freedom of religion) has left me however puzzled, if not dissatisfied. Why? The reasons are quite simple.
The Court addressed the applicant’s complaint about freedom of religion in one paragraph offering the following brief reasoning: “The Court considers this complaint admissible. However, having regard to the facts of the case, the submissions of the parties and its finding of a violation of Articles 3 and 6 above, the Court considers that it has examined the main legal questions raised in the present application. It concludes, therefore, that there is no need to examine whether in this case there has been a violation of Article 9 of the Convention (see, for example, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).”
I eagerly looked at the Court’s findings under Articles 3 and 6 in search of an explanation to its conclusions under Article 9. Relying on Article 3, the applicant had complained of ill-treatment by the police, poor detention conditions, and lack of medical treatment. In turn, relying on Article 6 § 1, he had complained of having been entrapped by undercover agents whom he had not been allowed to confront in the proceedings. The Court examined all these allegations carefully finding a violation of Article 3 (prohibition of inhuman or degrading treatment) and of Article 6 § 1 (fairness). A violation of the former was found on account of the lack of personal space for detainees and unsatisfactory sanitary conditions. A violation of the latter was found on account of domestic courts’ insufficient investigation of entrapment allegations.
I then looked at the parties’ submissions in general and at those concerning Article 9 in particular. The Court said both parties presented observations on the issue raised under Article 9. The observations cannot however be found in the Court’s judgment. So, at first glance, it is not entirely clear why the Court left aside the Article 9 claims. It seems to me that the alleged violation of Article 9 raised different and equally important issues that merited separate and thorough consideration.
In the end, one can only speculate on the parties’ arguments and, ultimately, on the Court’s reasons for not finding it necessary to examine the alleged violation of Article 9. Perhaps the Court did not see freedom of religion as among the applicant’s main concerns? Being able to practice his religion seemed fundamental for him though. At some point, he similarly complained of the lack of suitable Muslim diet while in detention. Perhaps the Court simply did not want to get into the issue? Or, maybe material conditions in prison were seen as more important than faith-related ones? One can keep on speculating.
True, in some cases, the reasons why the Court decides not to examine certain issues are self-evident. Sometimes there is an obvious interconnection among the issues raised under different articles. Findings under one of them have thus evident implications for the others. This was the case of the example (Kamil Uzun v. Turkey) given by the Court in Ali v. Romania. I looked at Kamil Uzun and found that, indeed, the Court had similarly decided not to consider the other alleged violations. In this case, however, it was clear that the main legal questions revolved around the right to life (the applicant’s mother was killed as a result of an explosion during operations in South-East Turkey). Furthermore, an analysis of the other alleged violations – including Article 8 (family and home) and Article 1 of Protocol 1 (property) – seemed unnecessary after the Court found only a procedural violation of Article 2 (right to life).
In any event, the point here is that the reasons for not examining certain issues may not be obvious in all instances. It thus seems important that the Court makes these reasons more explicit. The parties’ observations could at least be known. Ultimately, a clearer motivation cannot but do good to the parties involved in the case, future applicants, Member States, and the larger public that closely follows the Court’s case-law.