Jakόbski v. Poland: Is the Court opening the door to reasonable accommodation?
By Saïla Ouald-Chaib and Lourdes Peroni
In a previous post, I said I would give the European Court of Human Rights a standing ovation the day it adopted a more open stance in freedom of religion cases. The time has come for such ovation. And the opportunity has been provided by what may well be a landmark decision: Jakόbski v. Poland. In this post, Lourdes and I discuss the causes for celebration.
Mr. Jakόbski, currently detained in a Polish prison, submits that he is a Buddhist. This is the reason why on several occasions he asked to be served meat-free meals to be able to follow the religious dietary rules required by Mahayana Buddhism. The prison authorities provided him with a ‘PK diet’ – which is a diet that contains no pork – but did not provide him with a complete meat-free diet. The applicant complained about a violation of his freedom of religion.
In a first argument, the government contests that a meat-free diet is a religious prescription required by Buddhism stating that the Buddhist school to which the applicant adhered to only encourages vegetarianism but does not prescribe it. The Court refers to previous case law where it already considered that dietary rules can be considered a direct expression of beliefs in the sense of art. 9 of the Convention. (Cha’are Shalom Ve Tsedek v. France, §§ 73-74) However, contrary to the State’s argument and in light of the principle that “the State’s duty of neutrality and impartiality (…) is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs”, the Court does not enter into the discussion of whether or not vegetarianism is really a religious dietary prescription. The Court simply states that “without deciding whether such decisions are taken in every case to fulfil(sic) a religious duty… in the present case the Court considers that the applicant’s decision to adhere to a vegetarian diet can be regarded as motivated or inspired by a religion and was not unreasonable” and that it thus falls within the scope of article 9.
The Court has always stated in the past that not every act motivated by religion or belief is protected by the Convention. In some cases this principle led to theological interpretations by the Court (e.g. in X v. UK  the Commission was not convinced that attending Friday prayers in the mosque was required by Islam and in Kosteski v. FYROM  the Court was not persuaded that celebrating a religious holiday was a manifestation of belief as the applicant in that case did not substantiate his belief). In Jakόbski, the Court does the right thing: it refrains from judging on the content of religious prescriptions (contrary to e.g. Dahlab v. Switzerland  where the Court found the wearing of the headscarf by a Muslim woman difficult to reconcile with a message of tolerance). The neutral way in which the Court deals with the religious part in Jakóbski , taking into account the personal conviction of the applicant, is how it should always be.
In a second argument, the government contends that providing each detainee with special food would entail too many difficulties of technical and financial nature. The Court’s reasoning on this point is remarkable, as it adopts a more accommodating approach towards religious minorities’ specific needs. This stands in contrast to the usual hands-off stance adopted in most of its prior case law, when confronted with the accommodation of religious minorities’ concerns. Jakóbski may thus be path-breaking in this regard. When going over the Strasbourg Court’s reasoning in this case, one cannot help thinking of some of the most accommodating jurisdictions, in particular the Supreme Court of Canada. In Jakóbski, the European Court seems to address some of the key issues the Canadian Supreme Court usually examines in its reasonable accommodation analysis. (*)
The Polish government’s arguments clearly echo the “undue hardship” defense (**) usually advanced by respondents before the Canadian Supreme Court against the duty to accommodate. In fact, to justify the refusal to accommodate the applicant’s request, the Polish government invoked: 1) the “excessive burden” this would represent to the prison’s kitchen staff and 2) the “extra costs” of hygiene requirements. In the Canadian Supreme Court’s case law, a request for accommodation may be rejected if it leads to “undue hardship.” Disproportionate costs and an impediment to the organization’s functioning are some of the forms undue hardship may take.
When examining whether the state has struck a fair balance between the interests of the institution and those of the applicant, the European Court admitted that special arrangements for one prisoner may have financial implications for the custodial institution. The Court was not however persuaded that the provision of a vegetarian diet would have meant a “disruption to the management of the prison.” The applicant, the Court said, “merely asked to be granted a vegetarian diet excluding meat products.” His meals, the Court further stated, “did not have to be prepared, cooked and served in a prescribed manner, nor did he require any special products.” So, in other words, one could say that the European Court did not find any indication of what the Canadian (and US by the way) Court calls “undue hardship.”
Jakóbski is definitely a great case. It deserves a standing ovation not only for adopting a more sensitive and accommodating approach towards religious minorities’ particular concerns but also for being more consistent with the idea of neutrality that the Court normally advocates. If the Court adopts the principles laid out in this case in future cases concerning accommodation claims, this would lead to a huge improvement of the case law regarding minorities. So, hopefully, Jakóbski will also represent a positive turn in the accommodation of minorities’ specific needs more generally.
(*) “This notion, which stems from jurisprudence in the realm of labour, indicates a form of arrangement or relaxation aimed at ensuring respect for the right to equality, in particular in combating so-called indirect discrimination, which, following the strict application of an institutional standard, infringes an individual’s right to equality.” (Bouchard-Taylor Abridged Report, p. 7)
(**) “The notion of undue hardship was first defined in the realm of labour relations and it is thus in this field that the criteria that define it are the most developed. The cost of the accommodation, the hindrance to the operation of the enterprise and the rights of co-employees are the key considerations that can warrant the rejection or the reformulation of a request.” (Bouchard-Taylor Integral Report, p. 163)