Three years after the COVID-19 lockdowns of 2020, international bodies are reflecting on the principles applicable to future “pandemics.” The World Health Organization (WHO) is working on a draft “Pandemic prevention, preparedness and response accord,” to be presented to governments in Geneva in May 2024. This agreement will contain provisions aimed at harmonizing restrictions on people’s fundamental freedoms worldwide.
In Europe, it is the case law of the European Court of Human Rights (ECHR) that will determine how, in the event of a future health crisis, states will have to reconcile the protection of public health with the freedoms of individuals. For the time being, the only final judgments handed down by the ECHR on this subject concern the specific contexts of a Maltese administrative detention center and Romanian and Maltese prisons . The only judgment handed down in a general context, Communauté genevoise d’action syndicale (CGAS) v. Switzerland (March 15, 2022), is not yet final: it has been referred to the Grand Chamber of the ECHR . Nevertheless, this Chamber judgment reveals a trend in favor of freedoms, as the judges found that Switzerland had violated freedom of assembly and association by banning all public demonstrations in the spring of 2020. The judgment was a close one, with four judges voting against three, and needs to be confirmed by the Grand Chamber.
Further judgments are expected, concerning measures banning worship in 2020 and 2021. ECLJ intervened as a third party in the three pending cases in this area: Association of Ecclesiastical Orthodoxy v. Greece (No. 52104/20), Ján Figeľ v. Slovakia (No. 12131/21) and Chirilă v. Romania (n°5610/21). The ECLJ was also a third party in a fourth case Magdić v. Croatia (No. 17578/20), but this was not examined on the merits, the ECHR having declared the application inadmissible.
The legal issues raised by the Chirilă v. Romania case
At the end of October 2023, the ECLJ submitted its written observations to the Court in the case of Chirilă v. Romania. This case differs from the pending Greek and Slovak cases in that, in spring 2020, Romania had activated a particular clause of the European Convention on Human Rights: the derogation in time of emergency, provided for in Article 15. This clause allows states, under certain conditions, to derogate from their obligation to guarantee certain rights and freedoms. It can be invoked by States “in time of war or other public emergency threatening the life of the nation.” The ban on religious worship in Romania thus fell within the framework of a legal regime derogating from the ordinary law of the European Convention. In its observations, the ECLJ demonstrated in law that such a derogation did not authorize states to ban all public worship. We put forward three major arguments to the ECHR.
The first argument relates to Article 15 of the ECHR, which cannot be invoked to derogate from the right to freedom of religion. Indeed, Article 15 only authorizes States to take measures derogating from their obligations “provided that such measures are not inconsistent with its other obligations under international law.” The 1966 International Covenant on Civil and Political Rights prohibits derogation from the right to freedom of religion, even “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” The right to freedom of religion is one of the few clauses from which a state cannot derogate, along with the right to life and the prohibition of torture and slavery.
There is a second reason why Article 15 is inapplicable in this case. Under international law, a State derogating from a treaty is generally obliged to specify explicitly which provisions of the treaty it is derogating from . However, the Romanian Government did not inform the Council of Europe of the precise articles of the European Convention from which it claimed to derogate. The applicant raises an objection on this point, calling into question the validity of the derogation on this ground . Moreover, while an attachment to a letter from the Romanian government states that it derogates from the freedoms of “movement” and “assembly,” no reference is made to “freedom of religion.”
Thirdly, our written observations explain that a derogation from the freedoms of movement and assembly is not sufficient to justify a ban on public worship. Indeed, worship, as a religious gathering, is part of a specific freedom, that of religion. Article 9 of the European Convention even explicitly cites worship as a public manifestation of freedom of religion. This article therefore has the character of a lex specialis in matters of worship. A government does not have the right to prohibit public worship by omitting Article 9, which protects public worship itself but also the freedom to attend it. Even if the ECHR were to uphold Romania’s derogation from Article 11 (freedom of assembly) and Article 2 of Protocol No. 4 (freedom of movement), this derogation would not be applicable in matters of worship.
For all these reasons, the derogation for states of emergency provided for in article 15 cannot be applied to public worship, and therefore does not justify its prohibition in Romania.
What other basis is there for banning worship in Romania?
As the derogatory regime is not applicable, the ECHR should apply the ordinary law regime: can the ban on public worship be justified under article 9 of the European Convention? In other words, was such a ban proportionate to the objective of protecting public health? The ECLJ had already shown that it was not, in previous cases before the ECHR. Our written observations in Chirilă v. Romania were an opportunity to show that the most recent case law on the health crisis confirms our demonstration.
The ECHR considered that, even in times of Covid, general and absolute bans are rarely justified. In its CGAS v. Switzerland judgment, the ECHR condemned Switzerland for banning public demonstrations for over two months in the spring of 2020. It recalled that “the outright prohibition of a certain type of conduct is a drastic measure which requires strong reasons to justify it and calls for particularly thorough scrutiny by the courts empowered to weigh up the interests at stake.” It also noted that “the blanket ban [on public demonstrations in Switzerland] remained in place for a significant length of time.” Two judges, in their separate opinions, had described this as “an exceptionally long period.”
The CGAS v. Switzerland judgment bears witness to the fact that the ECHR has not lowered its demands in the context of the Covid epidemic. In the Chirilă case, Romania struggled to show the ECHR that, for two months, a total ban on worship was necessary and that no less restrictive alternative measures were conceivable.
The ECHR cannot avoid ruling on the merits of the case.
As already mentioned, CGAS v. Switzerland is the only ECHR judgment concerning sanitary confinement, and it is not final. The ECHR has declared a great many other applications inadmissible with regard to freedoms in Covid times, to the extent that it has sometimes sought pretexts to avoid deciding these cases on their merits. This was the case, for example, in Magdić v. Croatia, cited above, on which the ECHR did not consider it necessary to render a judgment.
In order to declare Mr. Magdić’s application inadmissible, the ECHR had reasoned as follows. The applicant had complained in abstracto, without indicating how he had been concretely affected by the ban on public worship in Croatia. The ECHR criticized Mr. Magdić for not having “specified which public gatherings he could not attend because of the measures in question [...] nor [having mentioned] where and when he intended to travel.” In the absence of these details, the ECHR concluded that “the total absence of these individual elements does not enable the Court to make an individual assessment of the applicant’s situation.” Mr. Magdić had, however, indicated in his application that he was a Catholic, and the ECHR could therefore have understood that he wanted to go to Sunday mass, like any Catholic.
In Chirilă v. Romania, the application is more detailed. Mr. Chirilă, an Orthodox Christian, explicitly stated as early as his first domestic application (March 23, 2020) that he intended to visit, in particular, the Easter celebration (April 19, 2020) . In his application to the ECHR, Mr. Chirilă specified that he wanted to be able to attend mass for “the important moment in the life of the Church, Easter.” or even “Easter Lent and The Resurrection of Jesus.” COVID-19 lockdown prevented him from doing so. Consequently, this time the ECHR cannot consider that Mr. Chirilă complained in abstracto. It will have to rule on the merits.
 Feilazoo v. Malta, No. 6865/19, March 11, 2021.
 Fenech v. Malta, No. 19090/20, 1er March 2022 Spinu v. Romania, No. 29443/20, October 11, 2022.
 Communauté genevoise d’action syndicale (CGAS) v. Switzerland, No. 21881/20, March 15, 2022, referred to the Grand Chamber in September 2022.
 See the “Siracusa principles on the limitation and derogation provisions in the International Covenant on Civil and Political Rights”, reproduced as an annex to United Nations Economic and Social Council (Commission on Human Rights), “Status of the International Covenants on Human Rights”, September 28, 1984, Doc. NU E/CM.4/1985/4, § 44.
 Application Mihai-Silviu Chirilă v. Romania, op. cit., p. 9: the applicant points out that Romania’s notification does not explicitly mention Article 9 of the Convention and considers that this renders it invalid.
 Communauté genevoise d’action syndicale (CGAS) v. Switzerland, No. 21881/20, March 15, 2022, § 85.
 Ibid, § 86.
 Ibid, concurring opinion of Judge Krenc, supported by Judge Pavli, § 8.
 Magdić v. Croatia (dec.), op. cit., § 10 (free translation).
 Ibid, § 11 (free translation).
 Observations by the Government on the admissibility and merits of the application, September 8, 2023, document in the Mihai-Silviu Chirilă v. Romania file (No. 5610/21), § 14.
 Application Mihai-Silviu Chirilă v. Romania, op. cit. p. 5. Quotations from the application have been freely translated from Romanian.
 Ibid, p. 9.