23 Jan In the Vartic case v. Romania (17 december 2013) the European Court of Human Rights has ruled that dietary restrictions may be religious acts covered by Article 9 of the Convention. It has also usefully applied both essential criteria of « significant disadvantage » and « fair balance between the competing interests of the individual and of the community as a whole »
In the case of Vartic v. Romania (judgement in date of 17 December 2013) the European Court of Human Rights has ruled that dietary restrictions have to be regarded as religiously motivated acts covered by Article 9 of the Convention. If this point is not new, this decision is very worthy in the way the Court applies the both criteria of “significant disadvantage” (I) and “fair balance between the competing interests of the individual and of the community as a whole” (II).
I. The useful precision of the “significant disadvantage” criterion
Mr. Vartic is detained in Rahova prison (Romania). Because of his Buddhist convictions he asked the administration for a vegetarian diet in accordance with his beliefs.
He had not succeeded to obtain the vegetarian diet he wished. After being dismissed by Romanian national Courts, he lodged an application before the European Court of Human Rights arguing an infringement to his right to freedom of religion (Article 9).
Romanian Government argued that Article 9 of the Convention did not cover any dietary prescriptions and asked the Court to declare the application incompatible rationae materiae with the Convention. On that point, the Court has first held that freedom of religion denotes views that attain a certain level of seriousness, cohesion and importance (Leela Förderkreis and Others v. Germany, no. 58911/00). In respect to that, the Court -as it had already ruled- has held that respecting dietary restrictions can be regarded as a religious motivated act (Cha’are Shalom v. France, no. 27417/95).
However interesting, that first point in not very surprising.
As a subsidiary contention, the Government asserted that the application was inadmissible because no “significant disadvantage” does exist.
On that question of “Significant disadvantage” the Court has held 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 (see Eon v. France, no. 26118/10)”.
Despite not new, that assessment constitutes a useful precision of the potentially uncertain criterion of “significant disadvantage” which, if retained, allows the Court to declare an application inadmissible.
What is particularly interesting in that decision is the reference done by the Court to the subjective aspects of the violation argued: “In the instant case, the Court takes the view that the applicant attached high importance to his complaint that he has not being provided with food in accordance with the requirements of his religion. He repeated his request before the domestic authorities and lodged several actions before the courts” (§ 39).
In that way, both objective and subjective aspects of any case are very linked and may determine together the appreciation of the “significant disadvantage” criterion.
This case law appears very useful to precise a rather uncertain criterion. This precision, despite useful, appears nevertheless not precise enough to assure an always safe interpretation of that criterion!
II. The very practical appreciation of the fundamental criteria of “fair balance” between the two competing interests in balance
First of all, the Court asserts that: “the applicant’s complaint must be examined from that standpoint of the respondent State’s positive obligations”.
But on that particular point, the most interesting thing is that the Court explains making no fundamental differences in the way it may recognize an infringement of the Convention “whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 9, or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar” (45 §).
This proves that each article of the Convention –as the Convention itself- shall be interpreted as “a whole”.
In both cases of possible infringement, the Court explains that “regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole”; the Court also adds that: “in both contexts the State enjoys a margin of appreciation in determining the steps to be taken to ensure compliance with the Convention”.
The two key concepts of the Court appreciation are so:
- The fair balance between the interests of individuals on the one side and those of the whole community on the other side ;
- The existing margin of appreciation assigned to States to appreciate the most appropriated well balanced measures ;
At least, the Court’s control is just a subsidiary one.
Nevertheless that control still exists truly! And in this particular VARTIC case, the Court has considered that the State had not struck a fair balance between the interests of the prison institution and those of the applicant.
The Court realises a very concrete analysis of the situation: “The Court notes that the applicant’s meals did not have to be prepared, cooked and served in any special way, nor did he require any special food. The Court is not persuaded that the provision of a vegetarian diet to the applicant would have entailed any disruption to the management of the prison or any decline in the standards of meal served to other prisoners, all the more so as a similar diet free of animal product was already provided for detainees observing the Christian Orthodox fasting requirements” (…) “Even if it had still been possible to receive parcels from the family when they visited the prison, the Court takes the view that this would have only limited effects, since it would have been dependant on the financial and geographical situation of the family” (§§ 49-50).
All that very concrete factual elements determine the European Court to conclude that: “Having regard to all the foregoing factors, and despite the margin of appreciation left to the respondent State, the Court finds that the authorities failed to strike a fair balance between the interests of the prison authorities and those of the applicant, namely the right to manifest his religion through observance of the rules of the Buddhist religion” (§54).
According to this judgement, States -despite their margin of appreciation that still exists- have always to concretely measure the way they implement all the rights and freedom enforced by the European Convention for the protection of Human Rights.
Dr Pierre-Olivier KOUBI-FLOTTE
Attorney at Law
Member of the Marseilles (France) and Brussels Bars