Lois McLatchie Miller

A challenge brought against the Slovakian government could mark the first time that Europe’s top human rights court rules on whether the shutting down of worship spaces during the pandemic was unlawful & disproportionate.

It’s a question that started off in Scotland.

During our own lockdown, the Scottish government placed a blanket ban on attending all places of worship – despite available accommodations for health measures such as social distancing and hand-washing. Meanwhile, off-licences and bicycle shops remained open for business. Even cinemas were used as spaces for remote jury trials.

In the first successful challenge brought against Covid measures in the UK, a chorus of evangelical church leaders, and a Catholic priest from the Calton, both brought cases against the disproportionality of church closures. Backed by the legal advocacy charity ADF UK and represented by Aidan O’Neil KC, Canon Tom White submitted to the court that in times of emergency, fundamental freedoms were in need of greater protection, not less. The refusal to allow the engagement of freedom of religion or belief (FoRB) in a proportionate way spelled out the religious illiteracy of a government that forgot that such rights are enshrined in domestic and international law. The evangelicals and the canon came out victorious, churches re-opened, and he nailed the ruling of the court to his chapel doors.

Some countries, including Ireland, did not receive rulings on this issue, which impacted people of faith in every place where these bans took root. Though a challenge was brought by Irish businessman Declan Ganley, and supported by ADF International, court delays led to the question being considered moot.

Now, the European Court of Human Rights has the key opportunity to answer the question across its entire jurisdiction of 46 countries, preventing abuses of the right to religious freedom being repeated should we ever find ourselves in a similar situation once again.

This time, the challenge is not brought by Glaswegian priest, but a former EU official.

Ján Figeľ served as the Special Envoy for FoRB outside the EU (2016-2019). The case centres on the 40-day prolonged blanket ban on religious worship in the winter of 2021, which transpired amidst a longer period of previous restrictions.

The government of Slovakia contends that there was no violation of FoRB because individual worship was still possible, and “online worship” was available. But such
arguments do not capture the fullness of this basic human right as enshrined in international and European human rights law, which protect FoRB manifested
either alone or in community with others.

And the decision from the Court of Session in Edinburgh disputes the Slovakian government’s second premise, with Lord Braid commenting in his opinion that “digital connectivity…does not and cannot provide a substitute for worship” (Reverend Dr William J U Philip and Others, paras. 60-61). Belgian courts took a similar view, explaining that for some faiths, such as Judaism, religious celebrations cannot be filmed or livestreamed (Belgian Conseil d’État arrêt n° 249.177).

The Figel’ case rests on the ECtHR’s analysis of proportionality and necessity, and the margin of appreciation Slovakia had at that particular time. At the start of the pandemic, due to the novelty and lack of knowledge about the virus, governments had a wider margin to curtail fundamental rights. This gradually shrank with increased scientific information. Freedom-restrictive measures that might have been deemed legitimate at the beginning of 2020 were likely not proportionate and necessary in 2021 and 2022.

Ultimately, the onus is on Slovakia to prove proportionality - that their far-reaching measures were in fact the “least restrictive means available” to protect public health, even in these later stages of the pandemic, and in light of the ability to take social distancing and other measures within church buildings.

While the ECtHR has dealt with applications related to FoRB during the pandemic (such as Magdić v Croatia, which was declared inadmissible, or Spînu v Romania in which no violation was found in the prison context), it has not yet ruled on the proportionality of bans on public worship, and certainly not with regards to the second wave of the pandemic.

Should the court do so now, it would mark a significant recognition of the essential nature of religious freedom as part of human rights law. As Figel’ himself has stated in his previous capacity as envoy: “The EU cannot credibly advance religious freedom throughout the world if its member states fail to uphold fundamental freedoms at home.”

Lois McLatchie Miller holds an LLM in human rights law and writes for legal advocacy charity ADF UK.