Religious freedom does not stop at the prison gates – Part 2
21 July 2011
Jakobski v Poland (December 2010) – read judgment
Mahayana Buddhists have profound moral objections to eating meat. According to the rules, a Mahayana Buddhist should avoid eating meat to cultivate compassion for all living beings.
Even peaceable Buddhists commit crimes sometimes and go to prison. Meat free diets however are not available in all European penitentiaries. Should committed vegetarians be made to forfeit their beliefs once their offences against society have committed them to penal servitude?
In Poland, apparently, the answer is yes. The refusal to provide a Buddhist prisoner with a meat-free diet was not unlawful under local law which provided only that prisoners should receive meals taking into consideration their employment, age and where possible religious and cultural beliefs. That let-out clause allowed the Polish government to issue an ordinance requiring the provision of special meals for diabetics and a “light diet”. Both contain meat products.
Attempts by prisoners to avoid normal aspects of prison routine by invoking Convention rights have sparked a certain amount of criticism and debate – see Alasdair Henderson’s post on the refusal of a Muslim prisoner to undergo a urine test for suspected drug use because he was undergoing a voluntary fast at the time (R(Imran Bashir) v Secretary of State for Justice). It was argued with some force in that case that Mr Bashir had by committing a serious crime voluntarily accepted the restrictions of being in prison. The Secretary of State also contended that requiring Mr Bashir to give a urine sample was a proportionate interference. It was clear that preventing drug abuse in prisons was a legitimate aim. Nevertheless, his arguments prevailed albeit on a somewhat narrow basis and the disciplinary decision was quashed.
This prisoner case however is in a different category altogether. The following summary is based on the Court’s press release:
The applicant, a Polish national, is currently serving an eight-year prison sentence in for rape, of which he was convicted in 2003.
A Buddhist, he repeatedly requested to be served meat-free meals, stating that he adhered strictly to the Mahayana Buddhist dietary rules which required refraining from eating meat. His requests were refused. For some time he was granted a diet which did not include pork, but other meats and fish.
In April 2006, Mr Jakóbski brought criminal proceedings against the prison employees, complaining that, despite his requests, he was receiving meals containing meat products and that he could not refuse them as this would have been regarded as a decision to start a hunger strike and would have entailed disciplinary punishment. The criminal proceedings were discontinued. Subsequently, the Buddhist Mission in Poland sent a letter to the prison authorities in support of Mr Jakóbski, and he made another unsuccessful request, addressed to the prison director, noting that the pork-free diet contained meat and thus did not satisfy his needs. Further requests fell on deaf ears and Mr Jakóbski’s subsequent complaint to the Regional Court concerning the matter was dismissed by the regional court December 2007. The court held in particular that in view of the technical conditions and understaffing in prison kitchens it was not possible to provide each prisoner individually with food in conformity with his or her religious dietary requirements.
In 2009, Mr Jakóbski was transferred to another prison, where his requests for meat-free meals were also refused. He complained that the prison authorities had infringed his right to manifest his religion through observance of the rules of the Buddhist religion, as protected by Article 9 of the Convention.
Decision of the Court
While the Court was prepared to accept that a decision to make special arrangements for one prisoner within the system could have financial implications for the custodial institution, it had to consider whether the State had struck a fair balance between the different interests involved. The Court noted that Mr Jakóbski only asked to be granted a diet without meat products; his meals did not have to be prepared, cooked and served in a prescribed manner, nor did he require any special products. The Court was not convinced that the provision of a vegetarian diet would have entailed any disruption to the management of the prison or a decline in the standards of meals served to other prisoners.
The Court concluded that the authorities failed to strike a fair balance between the interests of the prison authorities and those of Mr Jakóbski, in violation of his rights under Article 9 and awarded him 3,000 Euros in respect of non-pecuniary damage.
Strasbourg case law leaves us in no doubt that prisoners have not forfeited their rights under Article 9 to respect for their freedom to practice their religion. Any limitations could be set only in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Whilst testing for illegal use of drugs (as in the Bashir case) is a legitimate aim under this category, it cannot be said, by any stretch of the imagination, that observing vegetarianism presents a threat to public safety, health, morals or the rights and freedoms of others.
The respondent government did try to run the argument that vegetarianism could not be considered an essential aspect of the practice of the applicant’s religion, since the strict Mahayana school to which the applicant claimed to adhere only encouraged vegetarianism but did not prescribe it. However, in Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, the Strasbourg Court has established that observing dietary rules can be considered a direct expression of beliefs in practice in the sense of Article 9 (although in that case the state’s restrictions on ritual slaughter of animals according to kosher rules was considered a legitimate aim in the interests of public health). In the present case the Court considered that the applicant’s decision to adhere to a vegetarian diet could be regarded as motivated or inspired by a religion and was not unreasonable. Consequently, the refusal of the prison authorities to provide him with a vegetarian diet fell within the scope of Article 9 of the Convention.
Poland will therefore have to review its regulations under which it is not obligatory for the prison authorities to serve a special diet in accordance with the inmates’ religious beliefs. To this extent, the non-binding Recommendation (Rec 92006)2) on the European Prison Rules, which recommend that prisoners should be provided with food that takes into account their religion, is being gradually rendered binding by the Court’s judgments on this issue.
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