In an earlier post, Lourdes and I were wondering whether the Court was opening the door to the concept of reasonable accommodation in freedom of religion cases with the judgment of Jakόbski v. Poland. With the recent case of Gatis Kovalkovs v. Latvia – well-hidden in the archives of inadmissibility decisions – it can be concluded that, at least, even though the door to reasonable accommodation might not be wide open yet, the Court is moving in that direction. In Gatis Kovalkovs v. Latvia, a detainee who wants to practice his religion in prison once more confronts the Court with a reasonable-accommodation type of claim.
Mr. Gatis Kovalkovs, a Latvian detainee adherent to the Hare Krishna movement, alleges that his right to freedom of religion has been violated and that he has been discriminated against on the basis of his religion. He claims to have been ridiculed by his cell mates and the prison priest and that he was limited in practicing his religion in his cell, since he was unable to read religious texts and to pray in his cell. He also complains about the confiscation of his incense sticks by a prison guard during a search of his personal belongings. The prison authorities argued that performing religious rituals in common cells is not appropriate since it could disturb the other prisoners and stated that they proposed the applicant to pray at specific times in a separate room. Also, the prison administration inquired more information with the Riga Chapter of the International Society of Krishna Consciousness concerning the rituals that have to be performed in Vaishnavism. They asked whether “Vaishnavism required a twice-daily loud chanting of mantras for fifteen minutes”. The Riga chapter responded that several forms of prayers exist for praying to Krishna and one of them is praying with a soft voice by using prayer beads. In a later statement following another request of information by a government agent, the Riga congregation explained that “some of the basic rituals of Vaishnavism were the burning of incense sticks, a daily washing, a special diet, studies of religious writings, and meetings with other followers of Vaishnavism. The obligation to observe those rituals was, however, conditional. For instance, if circumstances did not permit it, the burning of incense sticks was not mandatory”.
The government first questions the victim status of the applicant, stating that according to them the applicant is not a follower of Vaishnavism since he participated in a distance-learning Bible study course. The Court’s response to this argument is very clear. It “takes this opportunity to underline the fact that in no way can a person’s choice to educate himself – be it on religious or other topics – be objectively held to affect that person’s belief system”. Also, the Court sees no reason to doubt about the genuineness of the applicant’s faith. With these statements, the Court sets the tone for the reasoning in this case. This approach, clear, well-structured, and reasoned, is rare in freedom of religion cases.
The Court proceeds to the merits of the case, limiting its reasoning to the claims concerning the inability to read and to pray in his shared cell and to the confiscation of the incense sticks. Both claims are considered to be “motivated or inspired by a religion and not unreasonable”. The question arises here whether the ‘reasonability’ of the claim should play a role at this stage. In my opinion, from the moment that a claim can be considered as motivated by a religion and thus falling within the scope of article 9, all the other considerations should be examined under paragraph 2 of article 9.
The Court acknowledges that the claims in this case can be approached both from a negative obligation of the State not to interfere with the applicant’s rights (in this case by not confiscating the incense sticks) and from the “positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under Article 9 § 1”. The wording the Court uses, namely the “duty to take reasonable and appropriate measures” is a remarkable reference to the concept of reasonable accommodation used in other jurisdictions. (see also blogpost about Jakobski v. Poland)
The Court subsequently examines whether a fair balance has been struck between the competing interests at stake, following the analysis prescribed by article 9 §2, something the Court rarely does in freedom of religion cases.
The Court accepts that an interference took place and that it was prescribed by law. According to the Court, legitimate aims have been pursued, namely the protection of public safety (in the case of the incense sticks) and the rights and freedom of others. This freedom is affected in a direct way, namely the right of prisoners not be disturbed by the applicant’s rituals, but also in an indirect way since the Court is, similarly to the case of Jakobski, “prepared to accept that financial implications for a custodial institution which can have an indirect impact on the quality of treatment of other inmates”. From a reasonable accommodation perspective it is interesting to see how the idea of undue hardship for the State again finds its way into the reasoning of the Court. (see also blogpost about Jakobski v. Poland)
For both issues, the Court proceeds subsequently to a proportionality analysis and concludes that the complaints are manifestly ill-founded.
Religious reading, praying and meditating in a shared cell
The Court states that “(t)he interference with the applicant’s right is not such as to completely prevent him from manifesting his religion. The Court considers having to pray, read religious literature and to meditate in the presence of others is an inconvenience, which is almost inescapable in prisons (…), yet which does not go against the very essence of the freedom to manifest one’s religion.” The fact that a detainee can reasonably be limited in practicing his religion in prison is understandable. However,the way the Court is formulating this referring to the ‘very essence of the freedom to manifest one’ s religion’ is confusing and unfortunate as will be argued bellow. In any way, the Court seems to mainly rely on the argument that since the applicant did not make use of the authorities’ offered possibility to pray in another room the interference with the applicant’s right was not disproportionate.
Confiscation of incense sticks
The Court notes that “that the burning of incense sticks typically creates a powerful odour which is not pleasant to everyone and which might be disturbing to other prisoners” and takes into account the information provided to the Directorate of Religious Affairs by members of the Rīga Vaishnavist congregation who observed that “the religious tradition of burning incense sticks depends on the circumstances of the person in question”. Consequently, “the Court considers that restricting the list of items permitted for storage in prison cells by excluding items (such as incense sticks) which are not essential for manifesting a prisoner’s religion is a proportionate response to the necessity to protect the rights and freedoms of others”. Again the Court refers to the non essential character of a certain practice to the manifestation of religion.
In my opinion, this is not a necessary argument in the proportionality analysis and the Court should avoid making this kind of assessments. As seen above, the Court already accepted that both the praying and the burning of incense sticks can be considered as a manifestation of religion. Moreover it initially also stated that these manifestations were not unreasonable. Why is it arguing now that these claims or not essential for the applicant’s freedom to manifest his religion? The essential character of a certain religious practice is a very subjective issue. Some adherents of the Hare Krishna movement might find it essential to pray aloud and some not, whatever the Riga Chapter of the International Society of Krishna Consciousness says. This assessment could have been avoided. I am convinced that even if the Riga chapter would have stated that the burning of incense sticks is essential and always obliged for followers of Hare Krishna, that the Court would still have accepted that a limitation imposed on this manifestation of religion can be proportionate, namely in light of the rights of the co-detainees not to be disturbed, but maybe also because of the legitimate aim of protecting the safety in prison, an aim that has been mentioned by the Court above, but which is not included in the proportionality analysis.
Although I do agree with the outcome in this case and although I do like the structured reasoning of the Court, I do not completely agree with the Court’s assessment whether or not a certain practice belongs to the essence of an individual’s right to manifest is or her religion. This strand of reasoning is not necessary in the proportionality analysis. Also, I am always surprised to see that a case like this is dealt with in an admissibility decision. The reasoning elaborated by the Court shows that the non-proportionate character of the claims is not so manifest as the Court concludes. This case deserves not only a judgment because of the complexity of the case, but also because of the constructive approach of the Court which is a positive step towards opening the door to reasonable accommodation in freedom of religion cases.