Freedom of Religion or Belief in Prison

Both at the regional European (the European Prison Rules) and at the universal level (the brand new UN Nelson Mandela Rules) soft-law benchmarks exist on the rights of prisoners, including their freedom of religion or belief. While the European Court of Human Rights is mandated to monitor compliance with the far more general freedom of religion or belief clause (Article 9 ECHR), this proliferation of tailored prison rules does raise the interesting question as to how responsive the Strasbourg Court is to religious liberty claims by prisoners.
This article, first, presents an analysis of prisoners’ freedom of religion or belief cases before the European Court of Human Rights and before the former European Commission of Human Rights. The objective is to chart how accommodating the Strasbourg Court has proven to be in areas such as prison church attendance, clergy visits, dietary requirements, and the use of religious items in prison cells.
Second, this article focuses on one particularly salient question with which this court appears to grapple, namely how to determine what type of religion-based claims, privileges, interests, activities, practices, etc, merit protection.
The article concludes by making recommendations that aim to revisit the institutionalized inequality of arms—prison authorities versus incarcerated person—specifically with respect to approaches to the burdens and standards of proof in these cases.