The Legal Status of Religious Freedom in Romania: Legal Provisions and Cross-Cutting Issues

Abstract

In the present study, we aim to review a series of constitutional provisions related to the status of religious freedom in Romania since the first Constitution to the present-day Law no. 489/2006 regarding religious freedom and the general status of denominations in Romania, the law that regulates the relationship of the state with all acknowledged denominations. We thus seek to achieve an analysis and evaluation of the Romanian legal framework that is relevant to the topic. In the second part of the study, we shall raise some cross-cutting issues related to derogations and limitations of the freedom of religion and belief as we briefly analyse two instances related to the recent COVID-19 pandemic, namely officiating religious services without public access and the restrictions regarding the pilgrimage in Iaşi, held every year on the 14th October, during the feast of Saint Pious Parascheva.

1. Introduction

In the five parts of the present study, we address the issue of the legal regime of religious freedom in Romania. Thus, in the first part, Introduction, we expose the aims and the research methods employed for our research, the sources of the analysis, and the personal contribution while briefly mentioning some historical premises. The second part of the study analyses the constitutional legal framework for religious freedom in Romania, examining the country’s Constitutions diachronically, though not in an exhaustive manner, but only through those articles that are relevant to the phrase “religious freedom”. Thus, we seek to highlight the issue of religious freedom from the first Romanian Constitution (1866) up to the Constitution in force, together with Law no 54 of 22 April 1928 and Decree no. 177 of 4 August 1948 for the general status of religious denominations, which regulated church life during the communist period, the selection being qualitative and not quantitative and especially exemplary.

In the third part, we analyse the relationship between the state and denominations in Romania as regulated by Law no. 489/2006 on religious freedom and the general status of denominations, a legislative text that was supposed to reflect the new realities in the Romanian society after 1989 and, at the same time, to regulate the status of religious communities in alignment with the conventions, agreements and international treaties to which Romania is a signatory. The fourth part, Religious Freedom between Legislative Provisions and the Limits of Its Applicability. Instances of Specific Limitations during the COVID-19 Pandemic presents two specific examples of religious freedom restrictions during the recent pandemic, namely performing religious services without public access, especially the service on Easter night, and the restrictions regarding the pilgrimage to Iași in 2020, held every year around the feast of Saint Parascheva of Iași, the patron saint of Moldova, on the 14 October. In the fifth part, Instead of Conclusions, we highlight personal contributions by formulating conclusions for each constituent part of this study.

In the present study, we seek to review the legal status of religious freedom in Romania, introduce the basic legislative landmarks and present two instances of limitations of religious freedom during the COVID-19 pandemic. In agreement with the academic training in theological and legal subjects, we shall use the specific methods of research in the two fields, namely historical, systematic and analytical methods. The multidisciplinary approach is reflected in the bibliography, where the main legal sources (The Constitution, Organic Laws) are intertwined with ecclesiastic sources such as Statutul pentru organizarea şi funcţionarea Bisericii Ortodoxe Române (The Statute for the Organization and Functioning of the Romanian Orthodox Church) (Patriarhia 2022), as well with jurisprudence and civil doctrine (jurists and professors of Constitutional Law: Ioan Deleanu, Marius Bălan, professor of civil law and judge designated by Romania to the European Court of Human Rights in the period (1998–2013), Corneliu Bîrsan, internationally recognized Romanian canonist professors Nicolae V. Dură, Ioan N. Floca, Georgică Grigoriţă.

The originality of the present study lies in the interdisciplinary approach to religious freedom, highlighting the connection between church legislation and national civil legislation as well as the international jurisprudence with an impact on the life of religious denominations, based on the application of the nomocanonical principle of organization and functioning of the Romanian Orthodox Church, in the sense that the Church is governed both by its own legislation and by state laws regarding the acknowledged denominations.

Let us mention the fact that highlighting the background provided by historical premises is all the more relevant for the present-day context. Thus, we must bear in mind that the right to religious freedom is not necessarily a modern concept, having been foreseen both by the texts of the ancient great Religions and by ancient philosophers and jurists (Dură 2015, pp. 517–24), which proves that “religious freedom is itself above all a jus, that is a right, which is founded on jus divinum, jus naturale, and jus positivum, i.e., jus scriptum (written law)” (Dură 2016, p. 15). In this regard, among the ancient legal texts, “the Edict enacted by the King Cyrus the Great of Persia (590/580–530 B.C.)” (Mititelu 2015, p. 833), by which the Jews were granted liberty from the Babylonian captivity, and the Edict of Milan (313) (Dură and Mititelu 2014b, pp. 923–30), by which religious liberty was also granted to the Christians, remain the most relevant.

Throughout the centuries, “the right to religious freedom took various forms of expression, manifestation and application” (Dură and Mititelu 2014a, p. 837), reflected in modern laws governing religious denominations, which, among other provisions, guarantee the right to change one’s religion (Dură 2010, pp. 279–90).

2. The Legal Status of Religious Freedom in the Romanian Constitutions

Without attempting an exhaustive historical periodization, we shall mention the fact that the 1866 Constitution of Romania, the first Romanian constitution, issued during Prince Carol the 1st, stipulated that “the freedom of conscience is absolute” and “the freedom of all denominations is guaranteed as their service does not affect public order or good morals” (Monitorul-Jurnal Oficial al României 1866) (art. 21). Being the first modern Constitution, of liberal origin, but without excluding the previous legislation, namely the Organic Regulations (from Wallachia, 1831 and from Moldova, 1832), replaced by the Paris Convention, the so-called “Statute developing the Paris Convention” conceded by Prince Alexandru Ioan Cuza, on 7–19th August 1864, it employs the model of relationship between the State and religious communities which appeared in France at the end of the 18th century and which was called the system of acknowledged denominations, implemented through a process of adjustment to Romanian realities (Grigoriţă 2022, p. 16). This system was reflected in the promulgation of the Law for the election of Metropolitans and diocesan Bishops as well as the establishment of the Holy Synod of the Holy Romanian Orthodox Autocephalous Church, on the 14th December 1872, during Carol I, a law that affected church life since the Metropolitan of Ungro-Wallachia, who held the oldest bishop seat and who resided in the country capital, was proclaimed Primate Metropolitan of Romania (see Monitorul Oficial 1889, pp. 7–15).

After the political event of 1881 when the Kingdom of Romania was proclaimed, two other special events marked 1882: the first one was of legislative nature, involving the project for the reform of the synodal law submitted to the Romanian Parliament on the 9th March, while the second one was of ecclesiastical nature, occurring on the 25th March the same year, in the Metropolitan Cathedral of Bucharest, namely the first consecration of the Holy Great Myrrh in our country. The two culminated with the recognition of autocephaly on the 25th April 1885, when the ecumenical patriarch Joachim IV (1884–1886) and 10 members of the Patriarchal Synod signed the Tomos of autocephaly, at the same time communicating its bestowal to the sister Orthodox Churches. All these events were also “reasons to promote the adoption of this State-Church relationship system, adapted of course to the Romanian realities of that time” (Grigoriţă 2022, p. 17).

The union of the 1st December 1918, the birth of The Great Romania, also influenced both the administrative-political organization and the adoption of legislation that would encompass and correspond to the new social, political and religious realities. In this context, the first democratic constitution, the Constitution of 1923, was issued. Art. 22, paragraph 1 provided that “the freedom of conscience is absolute” while paragraph 2 stipulated that “the State guarantees all religions the same freedom and protection as their exercise does not affect public order, good morals and organizational laws of the State”. The last paragraph mentions that “the relations between the different religions and the Council will be established by law” (Constituţia României 1938). Thus, on the 6th May 1925, the Law for the organization of the Romanian Orthodox Church (Leb et al. 2022, pp. 259–73), which included the Statute for the organization and functioning of the Romanian Orthodox Church Church (Leb et al. 2022, pp. 274–315), was issued. As Professor Grigoriță claims, “this Statute represented the most complex and complete formulation up to that time of the way Romanian Orthodoxy was organized and functioned, in which Orthodox canonical theology and Romanian ecclesiastical tradition were legally presented according to the system of recognized denominations. These regulations, with minor amendments, remained in force until 1948, when Romania came under the communist regime” (Grigoriţă 2022, p. 18). We must also mention a crucial event for church life, namely the establishment of the Romanian Patriarchate, in agreement with the constitutional provisions, in the meeting of the Holy Synod on the 4th February 1925. At the same time, Metropolitan Primate Miron Cristea became the first Patriarch of the Romanian Orthodox Church.

We notice that the above-mentioned regulations were maintained from the previous Constitution, but officially, the system of acknowledged denominations was introduced in Romania by Law no. 54 of 22nd April 1928, which states the difference between denominations (historical or new ones) and religious associations (Grigoriţă 2022, p. 18), a law which will be repealed by Decree 177 of 4th August 1948. Through this law, the state intended to emphasize religion as a factor of unity and stability of the recently unified Romania. However, despite the fact that “the State guarantees all religions the same freedom and protection since their exercise does not affect public order, good morals and its organizational laws”, the law of 1928 made a clear distinction between denominations, which in turn divide into historical and new denominations, and the so-called “religious associations”, which raises sufficient doubts regarding the interference of the state in religious life, religious freedom respectively. Thus, Law no. 54 of 22 April 1928, art. 25–26, stipulated the following:

“Art. 25. The state has the right of supervision and control over all denominations, which will be exercised through the Ministry of Denominations. The authorities of all denominations are to send and give to this ministry or its authorized delegates any official documents and any information they may be asked for.

Art. 26. All instructions and orders of public interest, given by the authorities of denominations to their servants or faithful, will be brought to the attention of the Ministry of Denominations at the same time. This will prohibit instructions and orders that are contrary to public order, good morals, laws in force and the security of the state to be carried out”.

The Romanian Constitution of 1938 promulgated by King Carol II on 27 February 1938 changed the regime of denominations, in the sense that the Orthodox and the Greek-Catholic churches were considered ”Romanian churches”. The Orthodox Church was “the dominant church in the Romanian State”, and the Greek-Catholic Church had “priority over other religions”. Thus, art. 19 reads:

“Freedom of conscience is absolute.

The State guarantees both freedom and protection to all religions, as long as their exercise does not affect public order, good morals and State Security.

The Christian Orthodox Church and the Greek Catholic Church are Romanian churches. The Orthodox Christian religion being the religion of the vast majority of Romanians, the Orthodox Church is the dominant church in the Romanian State, and the Greek-Catholic Church has precedence over other religions.

The Romanian Orthodox Church is and remains independent of any foreign hierarchy, preserving its unity, in terms of dogmas, with the ecumenical church of the East.

The spiritual and canonical matters of the Romanian Orthodox Church belong to a single central synodal authority.

The relations between the different denominations and the State are subject to special laws”.

(Constituţia României 1938)

From the constitutional texts mentioned here (1866, 1923 and 1938), we infer that religious freedom is included in the sphere of freedom of conscience, but we may conclude that the legislators did not make a clear distinction between the freedom of religion and the freedom of the religious denominations to exercise their belief (Dură 2024, p. 110).

The time span between 1948 and 1989 is covered by three communist constitutions, namely the 1948, 1952 and 1965 Constitutions. The Constitution of the Romanian People’s Republic from 1948 stipulates that:

“The freedom of conscience and religious freedom are guaranteed by the State. Religious denominations are free to organize and can operate freely if their ritual and practices are not contrary to the Constitution, public security or good morals. […] The Romanian Orthodox Church is autocephalous and unitary in its organization. The way of organization and operation of religious denominations will be regulated by law” (art. 27).

(Muraru and Iancu 2000, pp. 126–27)

As Professor Dură stated, “in the constitutional text we do not find a single reference, not even an allusive one, regarding the legal protection of the two fundamental human freedoms, although it was actually about two natural, inalienable and sacred human rights” (Dură 2023, pp. 93–94), mentioning “a simulacrum of religious freedom, including the freedom of religious denominations” (Dură 2023, p. 95).

The relationship between the state and religions was regulated by Decree no. 177 of 4 August 1948 for the general regime of religious denominations, which comprises, at art. 1, (1), the constitutional provisions of art. 27 of the Constitution, namely that: “The State guarantees the freedom of conscience and religious freedom throughout the Romanian People’s Republic” (Ministerul Cultelor 1948), while art. 6 mentions that: “Religious denominations are free to organize and can function freely if their practices and rituals are not contrary to the Constitution, security or public order and good morals” (Ministerul Cultelor 1948). This decree no longer makes any mention of a distinction among denominations, all being equal, but without a special involvement and contribution in the life of the state and remaining subordinate to the state. Thus, art. 13 of Decree 177/1948 reads:

“Religious denominations, in order to be able to be organized and function, will have to be recognized by decree of the presidium of the Great National Assembly, issued at the proposal of the Government, following the recommendation of the Minister of Religions. In well-motivated cases, recognition may be withdrawn in the same way”.

The Constitution of the Romanian People’s Republic of 1952 regulates and guarantees all citizens the freedom of conscience in art. 84: “(1) Freedom of conscience is guaranteed to all citizens of the Romanian People’s Republic. (2) Religious denominations are free to organize and can function freely. Freedom of religious worship is guaranteed to all citizens of the Romanian People’s Republic. (3) The school is separated from the church. No denomination, congregation or religious community can set up or maintain general education institutions, but only special schools for the training of cult personnel. (4) The organization and functioning of religious denominations is regulated by law” (Muraru and Iancu 2000, p. 160).

In the first paragraph of article 84, the freedom of conscience is regulated in general, so in the 2nd paragraph one of the forms of conscience freedom is mentioned, namely that of religion and implicitly of denominations, religious rituals and religious associations. In the opinion of Professor Ioan Deleanu,

“religious conscience, as a form of conscience in general, represents a set of concepts, representations and feelings that reflect distorted and fantastic reality, based on the belief that the existence of the universe, the appearance and development of man and in general of all natural and social phenomena, are due to the action of a (or some) supernatural force”.

(Deleanu 1980, p. 288)

The existing legislation thoroughly reflected this approach. Moreover, the legislator viewed education as a mechanism for promoting science, as clearly superior to any religious belief, which appeared against the background of a backward phase of its development, therefore, issuing legal provisions according to which “school is separate from church” (Muraru and Iancu 2000, pp. 126–27).

The last paragraph of art. 84 of the 1952 Constitution guarantees freedom to denominations but stipulates that their organization and functioning are regulated by law, and any “denomination that affects the security of the state, the rule of law, socialist and personal property, life, bodily integrity, civil liberties, socialist morality is strictly forbidden” (Muraru and Iancu 2000, p. 289).

The Constitution of the Socialist Republic of Romania from 1965 resumes the provisions of the old constitution from 1952 regarding freedom of conscience. Thus, art. 30 provides that:

“The freedom of conscience is guaranteed to all citizens of the Socialist Republic of Romania.

Anyone is free to share a religious belief or not. The freedom of religious worship is guaranteed. Religious denominations are organized and function freely. The mode of organization and functioning of religious denominations is regulated by law…”.

(Constituţia Republicii Socialiste România 1965)

Freedom of conscience and, implicitly, religious freedom as perceived during the communist period, one of the fundamental rights of citizens, was then purely declarative while nowadays it is “one of the most important fundamental freedoms: both premise and matrix of the other fundamental rights and freedoms” (Bălan 2015, p. 388), as stated by Professor Marius Bălan. After a notional analysis of legal doctrine, Professor Mititelu concludes that “the two freedoms, of conscience and of religion, are in a relational existence because they have the same subject of law, namely man, and that they both have their own identity and legal status” (Mititelu 2020, p. 461).

The goal of the socialist state was for “man to be freed from the darkness of religion through the cultural-educational function for raising the general level of knowledge and for the materialistic-scientific education of people” (Deleanu 1980, p. 288).

Between 1948 and 1989, during the communist period, the status of religious freedom in Romania was regulated by Decree no. 177 of 4 August 1948, in which the communist authorities maintained the system of recognized denominations, the civil legislation carrying a strong Soviet imprint. Professor Grigoriță correctly asserts that

“religious freedom then was reduced only to the free exercise of religious service, which was also diminished by the rigid control of the State. In order to withstand this hard period, the Holy Synod of the Romanian Orthodox Church, presided over by the worthy of remembrance Patriarch Justinian Marina (1948–1977), approved in the meeting of 19–20 October 1948 a new Statute for the organization and functioning of the Romanian Orthodox Church, which broadly reproduced the Statute of 1925 and formally responded to the requirements of communist legislation”.

(Grigoriţă 2022, p. 19, 24)

The Romanian Constitution of 19911 regulates the freedom of conscience, and implicitly, religious freedom in art. 29, as follows:

“(1) Freedom of thought and opinions, as well as freedom of religious beliefs cannot be limited in any way. No one can be forced to adopt an opinion or adhere to a religious belief contrary to his convictions.

(2) Freedom of conscience is guaranteed; it must manifest itself in a spirit of tolerance and mutual respect.

(3) Religious denominations are free and are organized according to their own status, under the conditions of the law.

(4) Any forms, means, acts or actions of religious enmity are prohibited in relations between religions.

(5) Religious denominations are autonomous from the state and enjoy its support, including by facilitating religious assistance in the army, in hospitals, in penitentiaries, in nursing homes and in orphanages”.

(Constituția din 21 Noiembrie 1991)

From the constitutional text, we notice that no steps were taken in the expressis verbis acknowledgement of the guarantee of religious freedom, which was still perceived as part of or associated with freedom of conscience (Constantinescu et al. 2004, p. 57), although many supported the revision of this article, “the motivation being a pragmatic one: religious freedom is a far too important right to derive from the freedom of conscience, and its explicit maintenance would make both society and especially Romanian politicians much more interested in supporting policies in favour of religious freedom” (Raiu 2021b, p. 38).

Nowadays, the status of religious freedom in Romania is regulated by Law no. 489/2006 regarding religious freedom and the general status of denominations, promulgated by Decree no. 1437 of 27 December 2006, which regulates the relationship between the state and all acknowledged denominations, expressly listed in the annex to the law, which reaffirms the system of acknowledged denominations in Romania. In art. 8, (1) of Law no. 489/2006,

“«Acknowledged denominations are legal entities of public utility. They are organized and function based on the constitutional provisions and this law, autonomously, according to their own statutes or canonical codes» […] (3) «Denominations function in compliance with the legal provisions and in accordance with their own statutes or canonical codes, whose provisions are applicable to their own faithful», with the addition that «in their activity, denominations, religious associations and religious groups have the obligation to observe the Constitution and the laws of the country and not to harm public security, order, public health and morals, as well as the rights and fundamental human freedoms»”.

(Grigoriţă 2007, pp. 161–219)

3. Law No. 489/2006 Regarding Religious Freedom and the General Status of Denominations in Romania

The state legislative framework that regulates the relationship between the state and the denominations in Romania includes The Constitution of Romania and Law no. 489/2006 on religious freedom and the general status of denominations while the legislation of the denominations is embodied in statutes, canonical codes, regulations, decisions.

Until the issuing of Law no. 489/2006 regarding religious freedom and the general status of denominations, for 16 years after the fall of the communist regime, action was taken according to Decree no. 177/1948 regarding the general status of religious denominations, a legislative text that, on the one hand, no longer met the demands of the realities of Romanian society. On the other hand, in view of European integration in 2007, Romania had to adopt a law that would regulate the status of religious communities in alignment with the international conventions, agreements and treaties to which Romania was a signatory, therefore, in the spirit of similar regulations in European Union states.

In Romania, the relationship between the state and religions is one of cooperation and recognition on several levels according to Law 489/2006, being “marked by the historical and legal tradition of the presence of a majority Church, but also by the existence of substantial religious minorities” (Secretariatul de Stat pentru Culte 2018, p. 42).

Without going into procedural details, the starting point for the initiation of the draft law belongs to the representatives of 16 denominations that signed, on the 31 May 2005, together with the representatives of the Ministry of Culture and Denominations, draft law. After the inter-ministerial approval circuit, the draft Law reached the Romanian Senate in September 2005 and was approved on the 21 December 2005 by tacit adoption, in accordance with the provisions of art. 75, para. 2 of the Romanian Constitution, because it did not rule on the project within the maximum legal term of 60 days (Lemeni 2019). The decision-making chamber was the Chamber of Deputies, thus the plenary of the Chamber of Deputies voted on the draft law on the 13th of December 2006, with an overwhelming majority of 220 votes, with only one abstention and one vote against. The President of Romania promulgated the law through Decree no. 1437/ 27th December 2006. The law was published in the Monitorul Oficial (Official Gazette) no. 11/8th January 2007.

Law no. 489/2006 on religious freedom and the general status of denominations includes 51 articles, being structured in 4 chapters and an annex. The general provisions comprise the first 6 articles and regulate the general legislative framework regarding religious freedom and the state’s relationship with the various religious structures on the territory of Romania. The second chapter, entitled Denominations, includes 33 articles grouped in 5 different sections: Relations between the state and denominations (art. 7–16), Recognition of denomination status (art. 17–22), Personnel of denominations (art. 23–26), Denominations Heritage (art. 27–31) and Education organized by denominations (art. 32–39). The third chapter regulates the religious associations in Romania (art. 40–48) and the last chapter, entitled Transitional and final provisions, includes 3 articles (art. 49–51), being followed by an Annex, an integral part of this law, which includes the list the 18 religious denominations recognized by the state (Grigoriţă 2007, p. 178).

The religious denominations officially acknowledged in Romania according to the provisions of Law no. 489/2006 on religious freedom are organized and function in a determined and sovereign territory of a state. According to art. 29 paragraph 3 of the Romanian Constitution: “Religious denominations are free and are organized according to their own status, under the provisions of the law”; paragraph 5 states the principle of autonomy: “Religious denominations are autonomous from the state and enjoy its support, including by facilitating assistance religious in the army, in hospitals, in penitentiaries, in nursing homes and in orphanages”. Moreover, the act of recognition of the legal personality of denominations, in the case of the Romanian Orthodox Church, by government decision, is a legal act that is assigned to the legislative power of the state.

Let us notice that the autonomy of the denominations does not mean an absolute separation between the two entities (state/denominations), because “the Romanian State recognizes the spiritual, educational, social-charitable, cultural and social partnership role of the denominations, as well as their status as factors of social peace” (art. 7, 1 of Law no. 489/2006), therefore, as emphasized by Victor Opaschi, Secretary of State for Religions,

“they did not remain isolated in the private sphere and in the liturgical space, but assumed an active role in various fields, be it education, charitable activities, social or medical services or cultural projects. Thus, the denominations in Romania, in a broad sense, act, from the sphere of civil society, as significant actors in the public space”.

(Secretariatul de Stat pentru Culte 2018, p. 6)

Moreover, the denominations have the duty to support the State in fulfilling its mission. For this reason, the Romanian Orthodox Church identifies in its mission the following dimensions: pastoral, spiritual-cultural, educational and social-philanthropic as stated in article 4 of the Statute for the Organization and Functioning of the Romanian Orthodox Church.

The Romanian Orthodox Church observes the laws of the State on whose territory it is organized and functions. Moreover, the Romanian Orthodox Church cannot be organized and function exclusively according to church laws, because its faithful are part of society and, as citizens of a state, are subject to the state legal framework, respectively the legal status of natural and legal persons. Also, the Church cannot relate entirely to state norms, church service belongs exclusively to the Church, therefore it is organized and functions according to specific church norms elaborated by the church authority.

In this context, the Church cannot be conditioned in its work by interests foreign to its saving work and therefore, its autonomy is not only manifested towards the State but towards any other institutions in society (Floca 1990, pp. 199–200).

The Romanian Orthodox Church expresses its cooperation with the State by concluding numerous partnerships in the provision of religious assistance in the army, hospitals, penitentiaries, nursing homes and orphanages, for example, the protocol between the Ministry of Denominations (no. 4529/5th June 1990) and the Ministry of Education (no. 10480/5th June .1990), regarding the establishment of high school seminars within religious denominations; the protocol between the Ministry of Education and Science (9870/30th May .1991), the State Secretariat for Religions (4318/31st.May.1991) and the Romanian Patriarchy (124/31st May.1991) regarding the inclusion of higher theological education within state universities; the protocol regarding the organization and deployment of religious assistance in the Romanian army concluded between the Ministry of National Defence (A. 4868/11th October.1995) and the Romanian Patriarchy (7242/11th October 1995).

Therefore, the relationship is one of cooperation, and transparency, without interference from one side or the other, based on the principle of loyalty of the Church to the state and the principle of neutrality on the part of the State.

Also, the state legislation regarding religious denominations is generous and covers a wide range of problems specific to denominations, for example: Law No. 284/2010-12-28 regarding the unitary salary of staff paid from public funds, published in the Monitorul Oficial (Official Gazette), Part I, no. 877 of 28 December 2010, with subsequent amendments and additions; taxation of places of worship (Fiscal Code); Law no. 103/1992, regarding the exclusive right of religious denominations for the production of objects of worship, published in the Monitorul Oficial (Official Gazette), Part I, no. 224 of 1 October 1992, with subsequent amendments and additions; Law no. 239/2007 regarding the regulation of the legal status of some immovable property in the use of denomination units, published in the Monitorul Oficial (Official Gazette), Part I no. 517 of 01/08/2007; Law 102/2014 on cemeteries, human crematoria and funeral services, published in the Monitorul Oficial (Official Gazette), Part I no. 520 of 11 July 2014; Law no. 307/2006 on fire protection, with subsequent amendments and additions; Law 677/2001 for the protection of individuals regarding the processing of personal data and the free movement of such data, published in the Monitorul Oficial (Official Gazette) no. 790 of 12 December 2001; Law no. 448/2006 regarding the protection and promotion of the rights of disabled persons—ramps—access of disabled persons; Law no. 333/2003 regarding the protection of objectives, goods, values and the protection of persons—the protection and protection of goods; Law no. 422/2001 regarding the protection of historical monuments, published in the Monitorul Oficial (Official Gazette) of Romania, Part I, no. 407 of 24 July 2001, republished in Monitorul Oficial (Official Gazette) No. 938 of 20 November 2006 (Law no. 259/2006 amending and supplementing Law no. 422/2001 on the protection of historical monuments, published in the Monitorul Oficial (Official Gazette), Part I no. 573 of 7 March 2006). (Filimon 2014).

4. Religious Freedom Between the Legislative Provisions and the Limits of Its Applicability. Instances of Specific Limitations During the COVID-19 Pandemic

On the 11th March 2020, the Director-General of the World Health Organization (WHO), Tedros Adhanom Ghebreyesus, announced that we were in the presence of a pandemic of COVID-19 and asked states “to take urgent and aggressive measures” (WHO 2020). In Romania, the President signed, on the 16th March 2020, the decree regarding the establishment of the state of emergency on the territory of Romania for a duration of 30 days, and

“the effects were immediate: schools and businesses were closed, people were either sent into technical unemployment or made redundant, losing their sources of income. We are in the presence of a dramatic challenge that also requires a strategy aimed at several levels, first of all, the prevention, protection and timing of cases of COVID-19, with the aim of stopping or slowing down the spread of the virus; secondly, social resilience was taken into account, a concept specific to social sciences and psychology, which aims at the ability of human beings to adapt in a positive way to unfavourable situations, encouraging and strengthening the confidence of citizens to ensure functional continuity after returning to ‘normality’, thirdly, restarting the economy”.

(Roman 2020, p. 107)

Military Ordinance no. 1 of 17 March 2020 regarding some emergency measures related to large gatherings of people and cross-border movement of some goods, provides, in art. 2, that: “All cultural, scientific, artistic, religious, sports, entertainment or gambling, spa treatment and personal care activities carried out in closed spaces are suspended”.

Military Ordinance no. 2 of 21 March 2020, takes over and completes art. 2 with 2 more new paragraphs, comprised in art. 9, which provide the following:

“(2) Church/religious ministers may officiate services in places of worship, without public access, services that may be broadcast in the mass media or online. (3) Private liturgical/religious acts (baptisms, weddings, funerals as well as partaking for the sick, in the hospital or at home) can be officiated, with a maximum of 8 participants”.

The first instance in which there was a lack of a public policy to promote religious freedom at the governmental level, felt especially in crucial moments such as a pandemic, was officiating services without public access and above all, the service on the night of the Resurrection, thus limiting the manifestation of religious freedoms in the external, community form (Raiu 2021a, p. 94).

In the theological and canonical sense, the phrase “the right to freedom of religious belief” refers to the manifestation of faith in a communal, therefore collective and institutionalized manner, that is within the Romanian Orthodox Church, and not in the sense of an individual fundamental right, with all the related rights, in which the subject of the right to freedom of conscience and religious belief is exclusively one person. From the point of view of the legal framework, the freedom of thought, conscience and religion is a fundamental right, enshrined in the national legislation, art. 29 of the Romanian Constitution, under the title freedom of conscience. Also, Law no. 489/2006 regarding religious freedom and the general status of denominations, art. 8, 1, provides that they “are organized and function based on the constitutional provisions and the present law, autonomously, according to their own statutes or canonical codes”. By interpreting art. 8, 1, it is undoubtedly clear that the Romanian Orthodox Church is organized and governed according to its own Statute and Regulations, autonomously, through its own governing bodies, without prejudicing constitutional provisions and Law no. 489/2006 on religious freedom and the general status of cults. Moreover, the same Law no. 489/2006, art. 9, consecrates the principle of state neutrality towards religions and the principle of non-discrimination in relation to them (Roman 2020, p. 111). The Statute for the organization and functioning of the Romanian Orthodox Church, art. 4, (1) provides that: “The Romanian Orthodox Church is autonomous from the State and from other institutions”. This article establishes the principle of autonomy, which should not be interpreted as separation, but as implying cooperation in areas of major interest of the society, the Romanian State recognizing the spiritual, educational, social-charitable, cultural and social partner role of the denominations, as well as their status as providers for social peace (Roman 2020, pp. 111–13).

Also, Law 489/2006 regarding religious freedom and the general status of denominations, chapter II, regulates and consecrates in art. 9 the principle of neutrality of the state towards beliefs and denominations and of non-discrimination in relations between denominations (Roman 2021, p. 49).

The state must refrain not only from intervening in religious debates or from moral debates regarding the conceptions of the world but also from statements in these situations. These are the content elements of the principle of state neutrality which contribute to the pluralism of values and to the citizens’ freedom of choice from these values. Moreover, the State authorities do not have the competence to judge or arbitrate issues related to the doctrine or practice of any denomination.

Thus, according to the legal framework and the arguments presented above, the State/Government, through the State Office for Religions, had to conclude an agreement/partnership, through which the denominations were organized in such a way as not to affect the provisions of the state of emergency. After many insistences on the part of the Romanian Patriarchate, the Agreement of the Romanian Patriarchate and the Ministry of Internal Affairs in the State of Emergency was finally issued in the end, an agreement which strictly regulated the Easter service.

International legislation protects religious freedom. Article 9 in The European Convention on Human Rights (ECHR) stipulates:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

(Bîrsan 2005, p. 695)

Art. 18 (3) of The International Covenant on Civil and Political Rights (ICCPR) stipulates that “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (Act Internaţional 1974). Therefore, according to art. 18 of the ICCPR, “this right includes freedom to have or to adopt a religion or belief of one’s choice, and freedom, either individually or in community with others and in public or private, to manifest one’s religion or belief in worship, observance, practice and teaching” (European Court of Human Rights 2020, p. 7). Thus, “freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (European Court of Human Rights 2020, p. 7).

Within the United Nations Organisation (UNO), the Human Rights Committee, which provides the Council with expertise and advice on human rights issues, establishes in General Comment no. 22 on Article 18 (3) of the ICCPR that

“limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner”.

(General Comments no. 22)

Therefore, the limitation of the manifestation of religious freedom by invoking national security, because it is provided in art. 18 of the ICCPR as a reason for derogation (Raiu 2020).

Syracuse Principles on the Limitation and Derogation Provisions in the ICCPR (1984) places religious freedom among non-derogable rights:

“No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation”.

(American Association for the International Commission of Jurists 1985)

As Cătălin Raiu, Romania’s representative to the Organization for Security and Co-operation in Europe (OSCE) panel of religious freedom experts, points out, “rights are not competitive (the right to a healthy life versus religious freedom) and cannot be ranked” (Raiu 2020).

The second example that reinforces the lack of coherent actions regarding the restrictions regards the pilgrimage in Iaşi, held every year around the feast of Saint Pious Parascheva, the spiritual protector of Moldavia, on the 14th October (See Roman 2021, pp. 45–56).

The Government of Romania extended the state of alert through Decision no. 782 of 14 September 2020 regarding the extension of the state of alert on the territory of Romania starting with 15 September 2020, as well as establishing the measures that apply so as to prevent and combat the effects of the COVID-19 pandemic, published in the Monitorul Oficial (Official Gazette) no. 842 of 14 September 2020.

Thus, the National Committee for Emergency Situations adopted Decision no. 47 of 5 October 2020 regarding the approval of the list of countries/areas of epidemiological risk for which the measure of quarantine is instituted on people arriving in Romania and the establishment of a series of measures in the field of public health, which provides in art. 2 the following:

“The organization of religious holidays is allowed only with the participation of people who have their domicile or residence in the place where the activity is carried out, without the participation of people/pilgrims from other places”.

(Comitetului Național pentru Situații de Urgență 2020)

Locally, The County Committee for Emergency Situations of Iaşi adopted Decision no. 35 of 6 October 2020, that includes, in annex no. 1.1, instructions for the Archdiocese of Iași

“to establish a clearly limited perimeter, with the Metropolitan Ensemble as a reference point, in order to hold the religious celebration occasioned by the Feast Day of the Pious Saint Parascheva, a perimeter in which access is allowed only for pilgrims who have their domicile or residence in the municipality of Iasi; the perimeter in question and the access points will be established through mutual agreement with the law enforcement agencies and the Iaşi City Hall, and the entry of people in the area will be allowed based on the verification of identity documents”.

(Comitetul Județean pentru Situații de Urgență Iaşi 2020)

However, once they reached the court, some abusive administrative measures were abolished. Thus, the Bucharest Court of Appeal, by its Decision of 14 December 2020, annulled the article of a CNSU (NCES—National Committee for Emergency Situations) decision that prohibited the participation in pilgrimages of people from other locations than those where religious events took place. The Court of Appeal argued by mentioning the international standards applicable in a pandemic situation for the restriction of religious freedom and used the legal arguments of Mr Raiu, Romania’s representative in the panel of experts on Freedom of Religion or Belief (FoRB) at the OSCE, as publicly presented in the national press (cf. Raiu and Mina-Raiu 2022, pp. 89–90).

5. Instead of Conclusions

Keeping in mind the logical legal chain of the hierarchy of laws, namely the Constitution, the Law regulating religious freedom and the general status of denominations and the specific legislation of the denominations acknowledged by law (statutes, canonical codes, regulations), we have highlighted the fact that civil legislation regulated and guaranteed expressis verbis the freedom of conscience and religious freedom, the free organization and functioning of religions, under the provisions of the law; however, the interpretation and application were flawed, up to the point of the banning of some religions and imprisoning all those who behaved in a hostile manner to the communist regime, during the communist period.

With the entry into force of Law no. 489/2006 on religious freedom and the general regime of religions in Romania, which regulates the relationship of the state with all acknowledged denominations, expressly listed in the annex to the law, the situation changes radically as the denominations resume their place in the society, the Romanian State acknowledging the special added value of religions, with effects on multiple levels, as a result of the protocols concluded, that is, the spiritual level, through religious assistance, the educational and cultural level, through the teaching of Religion as school subject, and the social-charitable and social partnership level, through the social-philanthropic activity as well as their status as factors of social peace, as provided for by Law no. 489/2006.

In the study, we meant to highlight, on the one hand, the constant legislative concern for religious freedom and, on the other hand, the evolution of the concept on the national level. We have also emphasized the partnership between state authorities and religious denominations in the social-philanthropic and medical fields, in the case of the Romanian Orthodox Church the approach being pragmatic and aiming at solving present-day social problems with direct reference to the categories of beneficiaries of social assistance.

Despite the existence of the necessary legislation and already established principles, in special circumstances, such as the COVID-19 pandemic, the dialogue between state authorities and religious denominations was flawed while the exercise of religious freedom was limited.

Although religious freedom is a universally recognized value, it demands continuous vigilance and reflection, particularly from the academic community.