On the (non)existence of the right to religious freedom of persons deprived of liberty

Acknowledgements

This monograph is the end result of a research project: “The standards of respect the religious rights of persons detained in prisons, detention centres, educational and correctional centres for juveniles” (decision no. 2018/31/B/HS5/02233), funded by the National Science Centre (Poland).

Our joy at the publication of this study is all the greater because the road to its creation was extremely turbulent and difficult. The SARS-CoV-2 pandemic forced us to change the strategy of carrying out research and significantly lengthened the process of data acquisition and processing. Therefore, we wish, at this point, to thank the persons and institutions without whose help our efforts and enthusiasm could have been in vain.

First and foremost, we would like to thank the Ministry of Justice of the Republic of Poland and the Central Board of the Prison Service for giving consent to conducting our study on the premises of selected penitentiary facilities and detention centres.

Our sincere thanks for their support go to the directors and educators of penitentiary facilities, detention centres, youth educational centres and correctional facilities, where we were allowed to carry out our study. We are grateful for the enormity of your kindness and for your help in distributing and mailing our questionnaires.

Heartfelt thanks to our Mentor, beloved Chieftainess prof. zw. dr hab. Teresa Dukiet-Nagórska, for shaping our research workshop, without which it would be difficult for us to navigate the frontier of written law and its practical application. We also thank her for strengthening our special sensitivity to human rights violations, in particular, the rights of the vulnerable and the rejected.

We express great gratitude to the reviewer of this monograph – Head of the Department of Penal Enforcement Law at the Faculty of Law and Administration of the University of Łódź – dr hab. prof. UŁ Aldona Nawój-Śleszyński, for the insightful and critical comments that have made this monograph an even better work than it was at the outset.

Special thanks to Mr. Łukasz Gałecki, Peter Lang senior acquisitions editor for guiding us professionally through the entire publishing process.

Many thanks are due to dr Marta Byczek and all the staff of the Law Library of the University of Silesia in Katowice. Thank you not only for help in finding and obtaining the literature necessary for the work on the subject we have undertaken, but also for genuine kindness and selfless commitment.

And last but not least, thanks to mgr inż. Monika Łyczba from the Research Project Team of the Faculty of Law and Administration of the University of Silesia in Katowice, for the invaluable and unparalleled support at every stage of our project, without which the day we joyfully receive author copies of the monograph from Peter Lang would never come.

Olga Sitarz, Anna Jaworska-Wieloch & Jakub Hanc

Introduction

Researchers are keen to address the issues of human rights, including those of human beings deprived of their liberty as a result of a committed criminal offence. They are equally keen to address – on the level of sociology, psychology, religion studies or theology – the issues related to religion, religiosity and faith. Even when religious freedom in prisons is analysed, the focus is very rarely on prisoners’ religious practices from the perspective of human rights. Undoubtedly, the leading Polish researchers in this field include Zbigniew Lasocik¹ and Jerzy Nikołajew.² This publication seeks to continue the trails laid down by the designated researchers, adding new issues.

The few studies to date indicate that faith and religion are of great significance for prisoners. A study carried out in the first half of March 2015 among prisoners incarcerated in the External Division in Zabłocie (Penitentiary facility in Biała Podlaska), which covered 95 % of prisoners (101 persons), showed that the religious attitudes were as follows: 6.9 % of respondents described themselves as strong believers, 74.2 % as believers, 12.9 % as undecided, 3.9 as indifferent and 3 % as non-believers.³ Other studies revealed that faith and religion helped 14 % of long-term prisoners the most to serve their long sentence.⁴ In other words, a huge number of prisoners attach special importance to religious rights and freedoms. The isolation conditions and prisoners’ low efficiency mean that the extent to which these rights and freedoms are exercised must be evaluated directly at the prisoners’ location. Ultimately, the religious reality in post-criminal isolation units is co-shaped by the existing regulations of various levels, the involvement of individuals in the performance of their duties, the attitude of the penitentiary staff, prisoners themselves and their fellow prisoners.

This publication discusses the issue of the social and individual significance of religion. We believe that experiencing religious freedom by prisoners in isolation units teaches them respect for the law, the rights of others, difference and diversity and it may also, as Jeroen Temperman pointed out, minimize the radicalization of convicts and detainees.⁵

Isolation arising from the commission of a prohibited act, hereinafter referred to as criminal isolation, is accompanied by numerous limitations and deprivations, which, among other things, may relate to the sphere of performing religious practices. The question we sought to answer is mainly about how much these practices are genuinely restricted, which practices are affected and to what extent these limitations are justifiable. Such findings cannot be formulated in isolation from the adopted normative regulations and prisoners’ opinions. The official prison statistics and those concerning the implementation of measures of education and reform involving juveniles do not have this information.⁶

The study was carried out on two levels – the first part covered the theoretical and normative issues, the second focused on questionnaires among prisoners in post-criminal isolation units and their educators in Poland.

The theoretical research was based on identifying the significance of religion both in social and individual terms.

The normative study consisted of identifying the international standards of religious freedom and determining how these principles are applied to the Polish and German national legal orders. A further step was to reconstruct the international and national rules relating to religious freedom in isolation facilities that incarcerate individuals in connection with the commission of a prohibited act. The scope of the normative study covered incarcerated adults and juveniles – children who committed a prohibited act. The selection of the Polish and German legal orders, within the previously discussed framework, is justified by the available research material (Poland) and the evident similarity between the two countries, both EU members, in which legal tradition derives from so-called continental law. Detailed and insightful comparative findings have shown fundamental differences in the way prisoners’ universal right to religious freedom is regulated.

The specificity of the study, its applicative value and its universal problems prompt us to present some key terms characteristic of the Polish criminal law system, which in their English translation may not always be understood by everyone.

The following terms are used below:

• – penal enforcement law – a set of legal norms governing the enforcement of penalties and other related measures imposed in court proceedings and in cases involving minor offences;
• – Penal Enforcement Code (PEC) – the law that most fully normalizes the enforcement of judgments in criminal proceedings, in cases involving fiscal crimes and minor offences, and in proceedings involving administrative penalties and coercive measures resulting in deprivation of liberty;
• – penitentiary facility (Polish: Zakład Karny, ZK) – a penitentiary in which adults or juveniles that are held liable like an adult are incarcerated to serve a prison sentence. There are four types of penitentiary facilities: for young adults, individuals serving a first penalty, penitentiary recidivists and soldiers serving a sentence of military detention. Penitentiary facilities may be organized as closed, semi-open and open institutions.
• – detention centre (Polish: Areszt Śledczy, AŚ) – a penitentiary in which adults or juveniles that are held liable like an adult are incarcerated to serve a prison sentence or to enforce a preventive measure in the form of pre-trial detention. Convicts serving a penalty of deprivation of liberty in detention centres serve it in conditions complying with the classification, that is, in accordance with a specified type and kind of penitentiary facility;
• – youth educational centre (Polish: Młodzieżowy Ośrodek Wychowawczy, MOW) – the placement of a juvenile in a youth educational centre is an educational measure that may be applied to juveniles in response to demoralization or a criminal offence;
• – correctional facilities (Polish: Zakład Poprawczy, ZP) – the placement of a juvenile in a correctional facility is a measure of reform that may be applied to juveniles who at the moment of the commission of the act have attained 13 years of age, but have not attained 17 years of age, committed a punishable act corresponding to a crime or a fiscal crime and, simultaneously, the application of such a measure is supported by the high degree of demoralization of the juvenile and the nature of the criminal act, the manner and circumstances of its commission;
• – post-criminal isolation units (PCIU) – units in which the offender is placed in response to a committed criminal act (penitentiary facilities and detention centres in the case of individuals liable under the Criminal Code, youth educational centres and correctional facilities in the case of juveniles);
• – juvenile – an individual who has not attained 17 years of age at the moment of the commission of a punishable act, and simultaneously has attained at least 10 years of age in the case of demoralization and 13 years of age in the case of a punishable act. Where they meet strict conditions, including the attainment of a minimum of 14 years of age, they may be liable under the rules provided for adults by the Polish Criminal Code;
• – adult within the understanding of the Criminal Code – an individual who has attained 17 years of age at the moment of the commission of a prohibited act;
• – young adult is an offender who has not attained 21 years of age at the moment of the commission of a prohibited act and 24 years of age at the time of first instance adjudication;
• – legal adult – an individual who (as a rule) has attained 18 years of age.

1 Z. Lasocik, Praktyki religijne więźniów, Warszawa 1993.

2 See: J. Nikołajew, “Specyfika duszpasterstwa więziennego w Polsce. Prezentacja badań własnych”, Teologia w Polsce, vol. 3, no. 1, 2009, pp. 153 et seq.; J. Nikołajew, Duszpasterstwo więzienne. Tradycje, teraźniejszość, perspektywy, Lublin 2009; J. Nikołajew, “Reguły Minimalne i Europejskie Reguły Więzienne a prawo więźniów do wolności sumienia i religii w Polsce”, Studia z Prawa Wyznaniowego, vol. 16, 2013, pp. 111 et seq.; J. Nikołajew, Wolność sumienia i religii skazanych i tymczasowo aresztowanych, Lublin 2012.

3 W. Romanowicz, D. Tomczyszyn, “Stosunek do religii osób odbywających karę pozbawienia wolności a miejsce religii we współczesnym świecie”, Rozprawy Społeczne, vol. 9, no. 3, 2015, p. 96.

4 A. Polak-Krusznik, “Doniesienia z badań nad wykonywaniem długoterminowych kar pozbawienia wolności”, in K. Mrozek (ed.), Z problematyki badań empirycznych w prawie karnym wykonawczym. Część 2, Wrocław 2021, p. 141.

5 J. Temperman, “Freedom of Religion or Belief in Prison. A Critical Analysis of the European Court of Human Rights’ Jurisprudence”, Oxford Journal of Law and Religion, vol. 6, no. 1, 2017, pp. 48 et seq.

6 See: https://sw.gov.pl/dzial/statystyka (accessed 29.08.2023).