Strasbourg Observers

In the Footsteps of Jakóbski v. Poland but Adding Obstacles to the Road: Vartic v. Romania

February 06, 2014

When it comes to the accommodation of religious dietary requirements of detainees, it is clear that the European Court of Human Rights is adopting an inclusive approach. The case of Jakóbski v. Poland (2010) was considered a landmark case in this sense and the recent case of Vartic v. Romania proves that this assumption was correct. What distinguishes Vartic from Jakobski is the fact that the Court was confronted with the significant disadvantage criterion, which was introduced by protocol 14.

Like Mr. Jakobski, Mr. Ghennadi Vartic, expressed his wish of being served a specific diet adapted to the requirements of his Buddhist faith, meaning that his diet needs to be meat free. However, the prison authorities rejected his request and provided him with a special diet destined for ill detainees[1], which contains pork. This refusal to provide him with a vegetarian diet, the applicant claims, infringes his right to manifest his religion protected by article 9 of the ECHR.

The examination on the merits of the case is similar to the case of Jakóbski v. Poland. (See on this case an earlier post co-authored with Lourdes Peroni) In Vartic, the Court examines whether a fair balance was struck between the interests of the prison authorities and the other detainees, on the one hand, and the applicant’s interests, on the other, and concludes that despite the margin of appreciation of the state, this balance was not struck. The Court is not convinced that providing the applicant with an adapted diet would lead to a disruption in the functioning of the prison, especially since the prison is already providing special diets to other prisoners on religious or other grounds. Secondly, the Court observes that the applicant did not have any alternatives in his situation and that the authorities did not indicate whether such alternatives were available. Finally, like in Jakóbski, the Court refers to the recommendations made by the Committee of Ministers on European Prison Rules.

Significant Disadvantage: a risky assessment

Before addressing the merits of the case, the Court first examined the government’s arguments concerning the admissibility of Vartic’s claim. The State argued that dietary requirements do not fall within the scope of article 9 and that the applicant had not suffered any significant disadvantage. In reply to the first argument, the Court refers to its previous case law (Jakóbski v. Poland and Cha’are Shalom Ve Tsedek v. France) which leaves no room for doubt that claims concerning dietary requirements fall under the protection of article 9 of the Convention.
As to the second claim, concerning the significant disadvantage criterion,[2] the Court makes interesting but also questionable observations. The Court first explains that “the severity of a violation should be assessed taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case”, as it ruled earlier in the case of EON v. France (par. 38). Applying this principle to the instant case, it “takes the view that the applicant attached high importance to his complaint” since he repeatedly took action at the domestic level. The Court further “finds that the nature of the issues raised in the present complaint gives rise to an important matter of principle”. Finally, reacting to the analogy made by the government with the inadmissibility decision of Ionescu v. Romania, in which a claim about a little sum of money was at stake[3], the Court makes clear that unlike in Ionescu, the applicant’s claim cannot easily be quantified financially and that additionally it lasts for a longer period of time. (par. 40)

The Court’s emphasis on the subjective aspect that should be taken into account when assessing the severity of the claim is an important signal, especially for freedom of religion cases where subjectivity plays an essential role. However, in this case, it does not give us any clarity on how the significant disadvantage criterion might be applied in future freedom of religion case law. First, the Court considers the nature of the issue “an important matter of principle”, without explaining why this is the case. Would a claim concerning the inability to attend religious services in prison also be considered an important matter of principle? In the latter kind of cases, the Court tends to “find no appearance of a violation” without further examination of the claim (see e.g. the recent cases of Enache v. Romania and Lawniczak v. Poland), which at least gives the impression that these claims were not considered as important matters of principles, even though no significant disadvantage argument was raised by the respective governments. As such, despite the fact that the Court leaves room for examining the particular importance of a claim to the applicant, the question whether an issue can be considered as “an important matter of principle”, without specifying which criteria could be used in this assessment, involves a risk of arbitrariness.
Second, the Court argues that contrary to the case of Ionescu v. Romania, the issue in this case “cannot be easily quantified financially and that additionally did not have an immediate impact but rather lasted a longer period of time”. This seems to imply that the length of an interference would play a role in the assessment whether a significant disadvantage took place. However, claims concerning interferences with one’s right to freedom of religion very often also concern ‘immediate’ claims such as the requirement to remove religious headgear at security checks, as was the case in Phull v. France. Does the reasoning in the current case means that the Court would in the future declare this kind of cases inadmissible because no significant disadvantage was suffered due to a one-time? The Court leaves the door open for this kind of argumentation and I think this is problematic. It would make the assessment of the subjective importance accorded by the applicant to a particular interference void, especially in cases involving claims made by applicants belonging to a minority religion— cases in which it is a priori more difficult to understand the severity of the disadvantage afflicting the person involved and thus the importance of the issue raised. Indeed, what for a majority of people might seem an unimportant matter of principle, namely the requirement to remove a turban at a security check, might be of particular importance to the person concerned, otherwise, why would he/she go to Strasbourg? Allowing significant disadvantage arguments in cases concerning religious accommodation claims, risks to hollow applicant’s rights to freedom of religion even further.

[1] The applicant was diagnosed with hepatitis while in prison

[2] In paragraph 38-39 the “Court points out that the purpose of the “significant disadvantage” admissibility criterion is to enable more rapid disposal of unmeritorious cases and thus to allow it to concentrate on its central mission of providing legal protection of the rights guaranteed by the Convention and its Protocols (…)” and explains that the significant disadvantage criterion is “Inspired by the general principle de minimis non curat praetor, this criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court”

[3]The case concerned a dispute with a transport company in which the applicant claimed a damage of 90 euro’s since “the company had failed to observe the safety and comfort requirements set out in its advertising material, namely the provision of fully reclining seats, a change of coach in Luxembourg and the availability of six drivers”.

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