What are the rights of religious or belief minority (RBM) members in prisons, healthcare facilities, and the armed forces?

To a large extent, the rights of RBM members are no different from those of any other individual. Inmates, patients and, to a lesser extent, military personnel have in common that they do not enjoy full freedom of movement. The right to freedom of religion or belief requires that they be guaranteed the possibility of practicing their religion and following their beliefs within prisons, healthcare and military facilities and, more specifically, the possibility of receiving assistance from representatives of their RBMs. Within this framework common to all prisoners, patients and military personnel, members of RBMs may be at a disadvantage because, historically, the right to profess and practice their religion/belief within these institutions has been fully guaranteed only to members of the majority religious organizations. The increasing religious and cultural diversity of the European population therefore requires a rapid and in-depth transformation of the structures and methods by which this right is ensured.

Referring to the right of private life as guaranteed by Article 8 of the European Convention of Human Rights (ECHR) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), the conditions of persons subject to certain legitimate constraints can only be restricted in the name of ensuring public security. Thus, the fundamental principles of data protection are generally applied but their effectiveness can’t be measured on a national level. The UN Human Rights Committee (HRC) has stated:

[…] In accordance with articles 18 (2) and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief.

[…] Persons already subject to certain legitimate constraints, such as prisoners, continue to enjoy their rights to manifest their religion or belief to the fullest extent compatible with the specific nature of the constraint. States parties’ reports should provide information on the full scope and effects of limitations under article 18 (3), both as a matter of law and of their application in specific circumstances [CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add.4, 20 July 1993, paras. 3 and 8, p. 2 and p. 3; see also CCPR General Comment No. 16: Article 17 (The right to respect of privacy, family, home and correspondence, and protection of honour and reputation), CCPR/GEC/6624, 8 April 1988].

Pursuant to these directives, countries of the European Union refrain from asking inmates about their religious affiliation or allow them not to respond to this request for information.

How is the right to receive spiritual assistance from one's RBM representatives guaranteed (Clusters A, C and E)?

As already mentioned, this right is part of the right to religious freedom. Therefore, any individual who does not enjoy full freedom of movement is entitled to receive spiritual assistance by a representative of his/her religious or belief organization. For inmates, the right to receive spiritual assistance is recognized both by

-    Recommendation of the Council of Europe Committee of Ministers to Member States on the European Prison Rules (Rec (2006)2, Article 29.2) 

and

-    United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules, UN General Assembly, A/RES/70/175, 17 December 2015, see in particular Rule 65).

In the EU countries spiritual care is ensured in three different ways: by providing for the permanent presence of chaplains in prisons, healthcare facilities and barracks; by recognizing the right of representatives of religious or belief organizations to have regular access to these institutions; by granting these representatives the right to have access to the institutions in question whenever requested to do so by a prisoner, patient or member of the armed forces. These three modalities are often articulated differently in relation to different RBMs because the service of spiritual assistance cannot ignore the number of members of each religious organization. For this reason, many institutions guarantee the permanent presence of representatives of the majority religious organization only, while representatives of the RBMs simply enjoy the right of access.

In order to ensure an efficient spiritual assistance service, these arrangements need to be updated according to changes in the religious demographics of each European country. This has not always been the case and therefore it is possible that within the prisons, healthcare facilities or barracks of a country, RBM believers do not receive an adequate spiritual assistance service. Concerning prisons, this can lead to a violation of Rule 65.1 of the Nelson Mandela Rules which states:

If the prison contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved. If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis [pp. 19-20].

Do prisons, healthcare facilities and military institutions provide spaces for worship, prayer and meditation (Clusters B, D and F)?

Rule 66 of the Nelson Mandela Rules states that

[so] far as practicable, every prisoner shall be allowed to satisfy the needs of his or her religious life by attending the services provided in the prison […] [p. 20; a similar provision is contained in paragraph 2 of Article 29 of Recommendation Rec(2006)2].

This rule implies that the prison must provide spaces for religious activities (the same principle can be extended to healthcare and military facilities) but these spaces are not always available or adequate. In some countries, there are only churches or chapels belonging to the majority religious organization (usually Christian); in others, more or less permanent spaces are available for ceremonies and meetings of RBMs; in a few others, there are multi-faith spaces open to the members of different religious organizations.

How are the costs of spiritual care met (Cluster A, questions 2.1-2.4; Cluster C, questions 5.1-5.3; Cluster E, questions 8.1-8.4)?

There is no single model for all EU countries, but in many of them the state bears the economic burden of providing the necessary spaces for spiritual care and of remunerating the representatives of religious or belief organizations. In some countries the State support goes exclusively to the benefit of the majority religious organization. For example, this is the case in Italy where only the representatives of the Catholic Church are paid from public funds; in others State support is distributed among different religious organizations in proportion to the number of their members in the institutions where spiritual assistance is provided, as is the case, for example, in France and Belgium. In the latter country, representatives of BOs are also paid from public funds, which is almost unique in Europe.

Do members of the armed forces have the right to be exempted from service on occasion of the festivities of their RBM (Cluster G)?

The OSCE Handbook on Human Rights recommends that

Armed forces should, wherever possible, accommodate religious practices by members, including [...] observance of holy days and fasting, and observance of dress and dietary requirements [OSCE Office for Democratic Institutions and Human Rights (ODIHR), Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel, 7 April 2008, Section III, Chapter 11, pp. 96-97].

This recommendation has been followed in many EU countries where, subject to service requirements, members of the armed forces have the right to refrain from any activity on the public holidays of their religion and/or to leave the barracks to participate in religious rites and ceremonies held in their places of worship.

In the EU countries, most of the official public holidays are Christian holidays (Christmas, Easter, etc.); the weekly rest day itself, Sunday, originates in the Christian tradition. This is why the faithful of Christian religious minorities do not find it too difficult to celebrate their own religious holidays. For this reason, with reference to the questions of this cluster, Christian religious minorities have always been counted among those whose members have the right to abstain from service (Mormons are classified within the group of Christian religious minorities because they also celebrate the most important Christian holidays).

Do inmates have the right to receive food that is not forbidden by the rules of their RBM (Cluster G)?

Article 22.1 of Recommendation Rec(2006)2 of the Council of Europe states that

Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work [see also Council of Europe: European Court of Human Rights, Guide on Article 9 of the European Convention on Human Rights: Freedom of thought conscience and religion, 31 August 2022 (last updated), nos. 96-98, pp. 34-35].

In most EU countries inmates can obtain food that is not forbidden by their religion; more rarely, however, they are allowed to receive food prepared according to religious rules (e.g. halal or kosher food). In some countries inmates are entitled to eat food prepared outside the prison by their own religious group according to religious rules (this is the case in Italy for members of the Jewish community).

The European Court of Human Rights (ECtHR) has ruled that

The observance of dietary laws dictated by a religion or a philosophical system is a “practice” which is protected by Article 9 § 1 of the Convention 8 (Cha’are Shalom Ve Tsedek v. France [GC], 2000, §§ 73-74; Jacóbski v. Poland, 2010) [Guide on Article 9, Chapter II, para. B, no. 96, p. 34] 

and has established that there is a right to receive such food unless its provision imposes an “excessive burden” on the prison.

More recently the ECtHR has ruled that 

[…] providing food to a prisoner compatible with his or her religious beliefs is important since observing dietary rules can be considered a direct expression of beliefs in the sense of Article 9 of the Convention (Jakóbski v. Poland, 2010, § 45; Vartic v. Romania (no. 2), 2013, §§ 33-36) [Guide on the case-law of the European Convention on Human Rights: Prisoners’ rights, 31 August 2022 (last updated), Chapter II, para. F, no. 50, p. 16].

From another point of view, the ECtHR has ruled that

[…] an arrangement whereby a prisoner is authorised to obtain by his own means foodstuffs complying with the precepts of his religion must not impose a burden on him which he would be unable to shoulder for objective financial reasons (Erlich and Kastro v. Romania, 2020, § 40) [Guide on Article 9, Chapter III, para. C, no. 276, p. 93].  

Silvio Ferrari and Ilaria Valenzi

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This guide provides some keys to interpreting the three indices (P-index, E-index and G-index) built on the basis of the Atlas data.

P-index (States)

1.  France, Belgium and Portugal are the countries where RBM rights are promoted the most, Greece, Spain, Cyprus, and Italy those where they are promoted the least. The other countries rank somewhere in between, and among them some (Croatia, Denmark, Finland and Hungary) remain below the average of the 16 countries considered by the Atlas.

2. Disaggregating the data by clusters aids a better understanding of differences between these countries.

Cluster A, Cluster C and Cluster E. It emerges that the difference separating Greece, Italy, Cyprus, and Spain from the other countries is mainly due to the fact that in these countries the legal system does not give members of RBMs the right to stable spiritual assistance, organized and financed by the state (this right will be referred to as the "right to a chaplain"): only members of the majority religious organizations can avail themselves of this right. In France, Belgium, and Portugal, by contrast, a very large number of RBMs have the right to have a chaplain (all RBMs which are registered in France and Portugal and recognized in Belgium). This does not mean that chaplains for all RBMs are present in the prisons, healthcare facilities and armed forces of these countries: but the legal system does not preclude this possibility. In countries in the middle range of promoting the rights of RBMs, the right to a chapel is granted to fewer RBMs or chaplains are not paid by the state (as in the case of Austria, where all recognized RBOs have the right to a resident representative in prisons, but the State covers the costs only for some of them or only in part).

Cluster B, Cluster D and Cluster F. If we move on from the "right to a chaplain" to the "right to a chapel" the data show that in almost no country do the RBMs have the right to have places set aside, in a stable and exclusive manner, for carrying out religious activities or for the meeting of their members (see questions 4, 4.1, 7, 7.1, 10, 10.1; this right will be indicated with the expression "right to a chapel"). There are no significant differences between the countries surveyed (although in some of them this right is recognized to the majority religious organization, as will be seen when examining the G-index data). Differences emerge when another element is taken into consideration, the existence of places permanently set up to carry out religious activities but available to a plurality of religious organizations (see questions 4.2, 7.2, 10.2). It is not easy to obtain precise and reliable information in this field, and for this reason a coefficient of 0.50 has been applied to the data provided by the national experts. However, these spaces appear to be widespread in Sweden and, to a lesser extent, in Austria.

Cluster G. The last cluster considers the existence of two rights: the right to abstain from duty on religious holidays (limited to members of the military personnel) and the right to have food not prohibited by one's religion (limited to inmates). The first right is guaranteed to a particularly large number of RBMs in Romania, Poland, and Hungary. The possibility of receiving food not forbidden by one's religion is recognized in all countries, if this is possible and does not constitute an excessive burden for prisons.

3.  These data seem to indicate that a far-reaching reform of the spiritual care system is needed in Greece, Cyprus, Italy and Spain. The fact that only members of the majority religion can avail themselves of chaplains and chapels could have been understandable when the vast majority of the population professed that religion. Today the religious demographics of these countries have changed and religious diversity has grown significantly: for this reason the existing system may prove to be discriminatory against RBMs. Reform may move in the direction of suppressing the position of chaplain and expanding the right of the representatives of RBMs to visit persons in prisons, healthcare and military facilities, or of extending the right to have a chaplain to a wider range of RBMs.

With regard to chapels, increasing the number of "multi-faith spaces" seems to be the best approach. This path could have the additional advantage of stimulating interreligious dialogue.

Lastly, it is desirable that the right of military personnel to be exempt from duty on religious holidays and the right of inmates to receive food not prohibited by their religion/conviction be applied in a less discretionary way by military and prison authorities.

P-index (RBMs)

4. If we move from states to RBMs, it is easy to see that at the lowest rung of the equal treatment ladder lie Belief organizations (BOs) and Scientology. In many countries, neither are recognized as religious organizations and are therefore deprived of the rights attributed to the latter. Among the other RBMs whose rights are less promoted the Sikh and Hindu communities stand out, probably penalized by their small numbers and the absence of a core of converts equal to that of the Buddhist communities (which rank higher). On the highest step (excluding the majority religious organization of each country) are the Christian Churches, followed by the Islamic and Jewish communities. Interestingly, this is the only policy area where the rights of Islamic communities are more promoted than those of Jewish ones.

E-index (States)

5. This index shows that the four countries where RBM rights are least promoted (Greece, Cyprus, Italy, and Spain) are those where differences in legal treatment among RBMs are smallest. This suggests that in these countries equal treatment among RBMs means that their rights are equally restricted or disregarded. On the contrary, Belgium and France, two countries where the promotion of RBM rights is significantly intense, are in the range where these differences are greatest. If both indicators - promotion of RBM rights and equal legal treatment of RBMs - are taken into consideration together, the country that achieves a better balance is Portugal, where a large number of RBMs can provide spiritual assistance on an equal footing.

6. It appears from this data that the countries considered in the survey are finding it difficult to promote the rights of RBMs on an equal basis. The more intense the promotion of RBMs, the less strong the equality among them; the less intense the promotion, the stronger the equal treatment (even if it is a downward equality, as in the case of the four countries mentioned in the previous paragraph). This indicates that the promotion of RBMs rights is often selective: in many countries, the rights of some RBM are promoted but almost never those of all of them.

G-index (States and RBMs)

7.  The countries where the distance between the rights granted to the majority religious organization and to RBMs is greater are Greece, Cyprus, Italy, and Spain, confirming what is written in paragraph 2 (Clusters A, C, E and Clusters B, D, F). Those where this distance is less are Sweden and France.

8.  As is also the case in the other policy areas, non-Christian minorities -and in particular BOs, Scientology, and Sikh communities- are the ones which experience the greatest gap from the majority religion. It is interesting to note that the distance between the majority religion and the Muslim minority is less than that between the majority and the Jewish minority. This confirms the remarks made in paragraph 4.

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