The issues with the realization of the right to religious assembly during a lockdown

In 2020, the whole world faced a catastrophic outbreak of a deadly coronavirus, which forced the countries to introduce urgent measures to curb the infection’s spread among the population.

Intro

The International Covenant on Civil and Political Rights guarantees everyone the right to freedom of conscience and religion, which includes not only the right to practice a religion individually, but also the right to do so in community with others, in public, when performing religious and ritual ceremonies (clause 2 of article 18 of the Covenant). At the same time, clause 3 of the same article does provide for certain limitations of such right that are necessary to protect public safety, order, health, and morals, as well as the fundamental rights and freedoms of others.

In 2020, the whole world faced a catastrophic outbreak of a deadly coronavirus, which forced the countries to introduce urgent measures to curb the infection’s spread among the population. Every state has been looking for ways to counter the threats that were brought about by an emerging pandemic, by employing their hygienic, medical, technical, political, and legal means and methods. Some of those methods have been justified, some proved to be ineffective, but we believe that a number of those measures present a special interest from a standpoint of analysis and conclusion about their significance and possible application in the future. Those, we believe, are the measures that concern the right to freedom of religion and religious assembly, i.e. those rights that are stipulated by article 18 of the Covenant.

Global experience in applying measures with respect to religious organizations in a lockdown

So far, the only indisputable deterrent against a pandemic is thought to be a lockdown, a measure introduced in order to slow down the spread of the disease by limiting social contacts. In such a situation every state—even a secular one that nevertheless respects the religious views of its populace—has no other choice but to introduce such measures, even though they limit to a certain extent the otherwise intact rights and freedoms.

Thus, a number of states even in a lockdown have continued to respect the right of their citizens to carry out religious services, only if with restrictions of the number of participants. The United States is a good example. The governor of Utah announced on 12 March 2020 that the number of participants in worship services in a church would be limited to a hundred people. The governor of Florida also introduced restrictions on church services, limiting the number of worshippers to ten people in a group. The governor of California in March 2020 introduced an almost complete ban on religious services, which caused mass uproar even reaching courts. Responding to the public opinion, the authorities eased the restrictions and allowed worshippers back in the churches, although limiting the number of participants to a hundred at a time or 25 percent of a church’s total capacity, whichever figure was lower.

Similar measures were introduced in the State of Illinois, where the authorities allowed religious meetings not exceeding 50 participants until the 5th phase of the lockdown; in April 2020, during the 2nd phase of the lockdown, the number of participants in a religious service was limited to only ten.

Some countries introduced somewhat unorthodox measures and restrictions, for instance a ban on religious choirs. In California, the authorities introduced this ban based on an assumption that collective singing would be associated with higher risks of contracting the virus.

In our opinion, one of the more effective measures in a lockdown was the one of allowing religious ceremonies to be performed in open air and areas adjacent to the church/temple, examples include the United Kingdom, Israel, states of Louisiana, New Jersey in the United States, and some others.

Even during a difficult time of a pandemic, with all those bans and prohibitions, it was unconceivable to cancel the Holy Fire ceremony at the Holy Sepulchre Temple in Jerusalem, on Holy Saturday. This ceremony, which carries a deep meaning, was performed although with severe restrictions—only the main clergy (10 people headed by the Patriarch of Jerusalem) was allowed to be there, with a small number of TV people to cover it.

The strict quarantine measures that Israel had taken in a timely manner securing a sizeable decrease in the threat of the spread of the disease, had allowed already in May 2020 to re-open synagogues, churches and mosques, provided the number of worshippers was limited to 50 at a time, doing social distancing, wearing masks, and following other sanitary requirements.

The Muslim states also took the restrictions seriously while not prohibiting their populations from the right to freedom of religion. Thus, in Saudi Arabia despite the closure of Mecca and a ban on pilgrims visiting the shrines in the holy month of Ramadan, the authorities already in late May permitted to hold a Friday prayer. To minimize social contacts, the mosques would open 20 minutes before the prayer and close 20 minutes after. In July 2020, on the eve of Eid al-Fitr, Saudi Arabia’s Ministry of Islamic Affairs announced that the celebratory religious services would be conducted not in all mosques but only those that were included in a government-approved list.

On 16 March 2020 Turkey decided that collective prayers at the mosques would be suspended and worship services would be conducted online via videoconferencing, and the Quran studies would shift to online-only mode. However, in June the authorities re-opened mosques with a condition that the visitors would be following precautionary measures, such as mask-wearing, social distancing etc.

It is worth noting that the precarious situation with the coronavirus in this country did not prevent its leadership from making a controversial decision changing the status of Hagia Sophia in Istanbul from a cathedral to a mosque, and already on 24 July holding there a first in the last 86 years public Friday prayer, with crowds of worshippers.

Iran’s authorities, who had initially introduced a strict ban on religious services, later relaxed and allowed certain select regions to hold them, subject to strict compliance with protection measures, such as mask-wearing, gloves, 30-minute maximum for a service, etc.

It should be noted that in the majority of the countries, their religious leadership did understand the restrictive measures the state was taking. For instance, in Russia the Moscow Patriarchate of the Russian Orthodox Church published on 17 March an “Instructions for the rectors of parishes…” in which it stipulated specific conditions for holding ceremonies of communion, baptism, chrismation, as well as established requirements for visiting churches.

As early as 10 March 2020, the Vatican authorities took measures to prevent the spread of the virus by limiting the religious services to just a few clergymen and laity. Later on, in addition to officially-established measures such as social distancing, limiting numbers of people and mask-wearing, Vatican added their own requirement to take the temperature of all visitors to the basilicas in Rome.

The Jewish leadership in Israel was taking internal quarantine measures as early as March. For instance, the Great Jerusalem Synagogue could only be visited if a total of all people inside would not exceed 90 persons. The World Association of Orthodox Synagogues called for containers with alcohol-based hand sanitizer to be installed at the entrance to all orthodox synagogues, as well for constant ventilation of the premises and prohibiting people with symptoms of an acute respiratory disease from attending sermons.

Many religious organizations, understanding the magnitude of the economic hardship and plight of socially vulnerable groups in a lockdown, came up with various socially-meaningful actions. Zakyat, a Moscow-based charitable foundation, during the lockdown which coincided with the holy month of Ramadan, organized a fundraiser as part of the program “Feed the Hungry.” The volunteers used the money raised to buy and distribute food packs among those in need, approximately a thousand every day.

Miloserdie (Mercy), a Moscow Russian Orthodox service, also collected money to purchase and distribute food baskets. It also opened an on-demand “hot line” which helped with targeted deliveries by volunteers of necessary products and medicines, while the visiting nurses would help take care of the sick, old and lonely people at their homes. As part of the “Mercy” project, a shelter for homeless called “Rescue Tent” was opened.

In Germany, during the pandemic the Protestant churches have opened food distribution points that work on a continuous basis. One of those points, Leib und Seele (Body and Soul), has been opened by the Passionskirche church in Berlin. Here, the people in need can come every Thursday from 11 AM to 1 PM to collect food baskets.

The examples above represent only a small part of what can give a ground to make a judgment of the religious communities’ conscious approach to the situation that has set in, and how they understand the measures being taken by the states who, while doing so, do limit their own activity. At the same time, it should be noted that the states also demonstrate a certain degree of respect toward the rights of religious people, and a willingness, to some extent or another, to protect the freedom of faith, even during such a difficult period.

Quarantine measures with respect to religious organizations in Kazakhstan

By a decree of the President “On Introducing a State of Emergency,” as part of control measures to fight the disease “entertainment, sport and other public events, as well as family and commemorative events” were prohibited. It should be noted that initially religious services were not attributed to such lists, and were not restricted. The Decree became a basis for numerous legal acts by the Interdepartmental state commission to fight the spread of the virus, as well as for the work of local operational headquarters, sanitary inspectors, etc.

It was the resolutions of the Chief Sanitary Officer that formed the legal basis for restrictions on religious assembly. During the state of emergency, the measures that were stipulated in his resolutions were copied into the protocols of local operational headquarters. Thus, the resolutions of the Chief Sanitary Officer No.26-PGVr of 22 March 2020 and No.35 of 1 May 2020 instructed the local executive bodies to control an enhanced sanitary-infectious regime at “religious facilities.”

Despite those documents actually permitting religious services and rituals at religious facilities subject to strict compliance with sanitary protection measures, the local sanitary officials began to prohibit them. On 10 May 2020, it was the Chief Sanitary Officer who by his resolution banned religious rituals and services at the religious facilities.

Soon thereafter, the national media published information that from 18 May 2020 the religious facilities would be able to resume their activity subject to compliance with the sanitary protection measures and visitors’ capacity not exceeding 30 percent. However, the ban continued into the subsequent days, and the religious facilities were not able to resume their work, even if they complied with all sanitary requirements.

Resolution No.32 of 28 May 2020 of the Chief Sanitary Officer, by which the ban on religious services was removed, could be considered as a sensible document that showed respect for the needs of people of faith. The conditions under which the activity of religious facilities was permitted during this period were detailed in Attachment No.1 to this resolution, called “The Instructions for the activity of religious facilities during the COVID-19 quarantine.” It detailed the restrictive measures aimed at reducing the threat of infection when holding religious ceremonies, worships, religious life, etc.

However, those documents were in effect only until 3 July 2020, the day Resolution No.44 of the Chief Sanitary Officer came out. Clause 3.6 of this document, again, stated that the “religious facilities (mosques, churches, synagogues, etc.) should be suspended.”

All subsequent resolutions by the Chief Sanitary Officer and local sanitary officials no longer raised the question of allowing religious facilities until 28 August 2020, when the new resolution of the Chief Sanitary Officer (clause 5) finally allowed the religious facilities to re-open again. However, the conditions attached to this permission cause more questions than they provide answers, because “collective events” are still prohibited. What does this mean? Does it apply to a religious service, cleaning-up of the premise by a group of workers, or a number of praying individuals being in one room simultaneously? The document provided no further details or clarifications.

What is interesting, not only the notion of “collective events,” but also other terms used in the above-mentioned document, such as “a facility of religious purpose” or “a religious facility,” are not defined in the country’s legislation. There being no legal definition, everyone will interpret these terms in their own way, which will inevitably lead to errors and mistakes in legal understanding and practice.

Some legal acts do clarify in brackets, “mosque, church, synagogue etc.” However, legally those are defined as “a cult building (facility),” meaning it is not their social content that is defined but their physical shape, as a building or premise. Only in single cases (e.g. in the minutes of the Almaty operational headquarter dated 27 March) is the term defined properly and unambiguously.

In order to apply a legal act properly, we believe it would be necessary to determine the will of the body or official enacting such an act. In this case it is important to understand what the Chief Sanitary Officer meant when he used those terms in his resolutions— “a religious facility,” “a facility of religious purpose” etc. The main objective of the measures that were being taken has been announced several times already—to prevent people from gathering together and reduce the threat of spread of the virus. Therefore, our understanding would be that the prohibitive norms should have been applied to mass gatherings for religious services and other mass gatherings within cult buildings.

However, the ban on the activity of religious facilities stipulated in the acts of the Chief Sanitary Officer today is unequivocally interpreted as a prohibition on any form of such activity, whether it is related or not to mass services or mass gatherings. Unfortunately, by way of broadened interpretation the ban also extended to cover (a) the “behind-the-door” services that are conducted by the staff of religious facilities; (b) social services conducted by the staff, clergy and volunteers; (c) assistance provided by the religious associations to sick patients; etc. In our view, an erroneously interpreted term has resulted in unjustified restrictions on the activity of religious associations during the quarantine.

Article 106 of the new Code “On Public Health and Healthcare System” stipulates that restrictive measures (including a lockdown) include limiting the organization and holding of religious rituals. However, article 7 of the Law of the Republic of Kazakhstan “On Religious Activity and Religious Associations” stipulates “unimpeded” religious rituals, ceremonies and/or assembly within cult buildings and adjacent territory. It states, further, that only “in other cases religious events shall be conducted in a procedure as established by the legislation.”

By comparing these legal norms, we come to a conclusion that blanket prohibition of “religious facilities” which include religious services, is unlawful. The ban may not cover every single activity of religious facilities, which implies “unimpeded” religious services; it is well within the realm of possibility to reduce the number of people attending religious services and at the same time ensure they follow the relevant sanitary requirements. The international experience, discussed above, confirms this to be the case.

During the lockdown, the acts issued by the Kazakh authorities that were aimed at protecting the public health and national security have significantly and not always justifiably encroached on the citizens’ freedom of conscience. By holding people of faith responsible simply for realizing their rights, the state demonstrates it is not invested in finding a solution to these important issues, and has a negative attitude toward its own citizens, by showing one-sidedness and formalism.

Thus, on 24 March 2020 the “Preobrazhenie (Transfiguration)” Church was held responsible under article 476.3 of the Code of the Republic of Kazakhstan “On Administrative Offenses” for not following the state of emergency guidelines when holding a service, all without lawful reasons, in our opinion. This article speaks of a ban on “entertainment, sport events, mass-gathering family celebrations and commemorative ceremonies,” which a regular religious service should not be included into.

We should note that at the peak of the pandemic, article 476 of the Code of Administrative Offenses was applied more severely, while article 425 (Violation of legislation on sanitary-epidemiological well-being of population, and hygienic norms) has been especially popular with the authorities.

Under the former article, on 5 August 2020 in Kyzylzhar district of North Kazakhstan oblast a protocol was drawn in respect of religious servicemen and a couple that was marrying, for conducting a wedding ceremony with a large gathering of guests. Without a doubt, in this particular case the authorities acted appropriately, and the ban on mass gatherings was justified. Nevertheless, we should note that an important ritual such as wedding should still be kept accessible for the people, provided of course that the relevant requirements and sanitary norms are complied with.

There have been cases when representatives and volunteers of religious organizations were held responsible for simply carrying out a permitted charitable activity. Thus, the representatives of the “Novaya Zhizn’ (New Life)” Church were held administratively responsible for distributing food to the churchgoers—pensioners, disabled, people who have been isolated in their homes without the means and assistance. Sadly, providing help to those who need it as a matter of life and death is not viewed by Kazakhstani courts as an “extraordinary need,” as a basis for exemption from liability.

Unfortunately, experience has proven that, the laws or by-laws issued by state authorities presently have no special provisions that would protect the rights of religious people or at least take them into consideration, during a lockdown. None of the fourteen clauses of article 4 of the Law which determines the competence of an authorized body responsible for religious affairs speak of authority that would allow such a body to protect or restore the rights of religious people, including their right to religious assembly.

The Code “On Public Health…” (clause 73, article 1) defines health as a state of complete physical, spiritual and social well-being, and not only as an absence of illness. Since the state, therefore, acknowledges spiritual well-being as part of the totality of health being an inalienable right of a person which is protected by the Constitution of the Republic of Kazakhstan, it cannot deny the importance of spiritual healing from ailments, which the people of faith avail themselves in the churches, mosques and other “religious facilities.” Therefore, it may not put a ban on such a healing of spiritual well-being, lest it violate the freedom of conscience.

We hope that the state, while resolving the urgent tasks of national security and public health, and by introducing the restrictive measures, will not ignore the necessity of keeping alive the religious organizations, services, rituals, for they act as a means of keeping the morals high and people’s spirits in balance.

G.A. Zhevlakov, Master of Law

Sources used

International Covenant on Civil and Political Rights.  Adopted by a UN General Assembly resolution 2200 A (XXI) on 16 December 1966 /

https://www.un.org/ru/documents/decl_conv/conventions/pactpol.shtml

Instructions for rectors of parishes and households …ROC in connection with the threat of spread of the coronavirus infection /  http://www.patriarchia.ru/db/text/5608607.html

Decree of the President of the Republic of Kazakhstan No.285 of 15 March 2020 “On the introduction of a state of emergency in the Republic of Kazakhstan”//   https://online.zakon.kz/document/?doc_id=32648341

Resolution of the Chief Sanitary Officer of the Republic of Kazakhstan of 22 March 2020 No. 26-PGVr “On measures to ensure the safety of the population of the Republic of Kazakhstan…”// https://online.zakon.kz/Document/?doc_id=39556118

Resolution of the Chief Sanitary Officer of the city of Almaty of 27 March 2020/ https://online.zakon.kz/Document/?doc_id=33803609

Resolution of the Chief Sanitary Officer of the Republic of Kazakhstan of 10 May 2020 No.36 “On further strengthening of measures to prevent coronavirus infections in the population…”// https://online.zakon.kz/Document/?doc_id=36528490

https://primeminister.kz/ru/news/novyy-paket-mer-po-vozobnovleniyu-otrasley-ekonomiki-1344056

Resolution of the Chief Sanitary Officer of the city of Almaty of 28 May 2020 No.32 “On the procedure for lifting restrictions…”//https://online.zakon.kz/Document/?doc_id=35824180

Resolution of the Chief Sanitary Officer of the Republic of Kazakhstan No.44 “On the introduction of enhanced restrictive measures” //https://online.zakon.kz/Document/?doc_id=34276342

Resolution of the Chief Sanitary Officer of the Republic of Kazakhstan of 28 August 2020 No.50/ https:// https://online.zakon.kz/Document/?doc_id=38485276#pos=4;-50

Minutes of meeting of the Almaty City Akimat operational headquarters on the state of emergency of 27 March 2020 /  https://online.zakon.kz/Document/?doc_id=32963977

Code of the Republic of Kazakhstan dated 7 July 2020 No.360-VI “On Public Health and Healthcare System”//https://online.zakon.kz/document/?doc_id=34464437

Law of the Republic of Kazakhstan of 11 October 2011 No.483-IV “On religious activity and religious associations” / https://online.zakon.kz/Document/?doc_id=31067690

Ruling of Specialized Administrative Court for the city of Aktau of 24 March 2020 in the case No.2312-20-00-3/1711

https://kaztag.kz/ru/news/za-venchanie-v-period-karantina-nakazhut-svyashchennosluzhitelya-i-roditeley-molodozhenov-v-sko