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On 21.11.2010, a date of religious celebration for persons of Greek Pontic origin, a group of Greek Pontic detainees asked the central prison authority for the right to celebrate this day by visiting the prison church. The prison authority rejected their request, as a result of which the detainees injured themselves in order to draw attention to their claim. A complaint was filed on their behalf to the Ombudsman’s office against the prison authority’s refusal.

Subsequently, in September 2011, an evangelical priest filed another complaint against the prison authority for refusing his request to visit a group of four Nigerian detainees who had expressed the wish to meet with representatives of the evangelical church. The prison authority rejected this request on the ground that it amounted to proselytism (forbidden under the Cypriot constitution and under prison regulations[1]) in view of the fact that no detainee had upon admission to the prison declared himself to be a follower of the evangelical church. The prison authorities justified this refusal on the assumption that a detainee’s will is variable due to the nature of his psychological condition. As a result, the policy is to allow visits only from representatives of the religion or dogma which the detainee had declared to be a follower of upon admission to the prison. The prison authorities further claimed that proselytism appears to be affecting particularly the foreign detainees and especially third country nationals who are using every means in order to stay in Cyprus and delay their potential deportation to their countries of origin. The prison authorities stated that upon admission to the prison three of the said detainees declared themselves to be Catholics and one declared himself to be an orthodox. The said detainees had also ‘confessed’ to the prison authority that they sought to meet with the evangelical church because no one else was prepared to support and help them.  The prison authority stated that it would allow the evangelical church representatives to visit only those detainees who had, upon admission to the prison, declared themselves to be followers of the evangelical church.

The Ombudsman found as follows (Ombudsman’s Report Ref. A/P 2430/10, 2445/10, 2446/10, 2447/10, 2467/10, 1728/11, dated 9 April 2012): The right to freedom of thought, religion and conscience is a fundamental right guaranteed by the ECHR (article 9), the Charter of Fundamental Rights (article 10), the Cypriot Constitution (article 18) and the Prison Laws and Regulations 121/97, article 109 of which recognises the right to every prisoner to satisfy, to the extent possible, his/her religious, spiritual and moral needs including the right to practice his/her religion and to communicate with a representative of his/her religion or dogma.  Also, UN rules on the treatment of prisoners do not allow the prohibition of visits from recognised representatives of religions where a prisoner so requests such a visit. [2]

Proselytism was repeatedly interpreted and defined by the ECtHR, especially in Kokkinakis v. Greece, in a manner that does not include: public expressions of faith, mere persuasion by one person to another to change his/her religion, information even by way of leaflet distribution or advertising material, missions, meetings, lectures etc. Therefore any restriction or prohibition of the said activities amounts to an unjustified restriction of religious freedom that denies persons the right to seek information for different religions and to change or not their religious beliefs.

With regard to the complaint of the Pontic detainees to celebrate their religious day on 21^st November, the Ombudsman stated that although she appreciates the difficulties facing the prison authorities in meeting the needs of the ethnically and religiously diverse prison population and agrees that these difficulties may to a certain extent justify restrictions as regards the exercise of religious duties within the prison, such restrictions may not lead to a denial of the right of the prisoners to practice their religion. The demand of the detainees in this case, which was merely to access the church within the prison in order to pray, did not presuppose any special arrangements and its denial was therefore unjustified. The report clarifies that the conducting of religious ceremonies within the prison is different, for which restrictions from the prison authorities can potentially be justified.

With regard to the rights of visitation by representatives of a religion or dogma other than the one declared by the prisoner upon admission, the report concludes that this is not explicitly prohibited by prison regulations which, on the one hand, prohibit proselytism without defining this concept and, on the other hand, allow visits by church representatives of the same religion as that of the detainees, pointing out that the interpretation given to these regulations by the prison authorities suggests the existence of a gap. The Ombudsman further notes that the restriction to such visits runs contrary to the international standards and conventions ratified by the Republic and to the Cypriot constitution which allows restrictions in the right to freedom of religion only if some other purpose foreseen by the Constitution is served, which does not apply to this case.

The Ombudsman rejected the position of the prison authorities that the prisoners’ will becomes volatile due to their psychological condition. She also rejected the allegation that proselytism affects more the foreign detainees who are using every endeavour to remain in Cyprus. She added that these views attribute motives to foreign detainees which are not justified or proven and exclude a genuine will for spiritual search. Such views, concludes the Ombudsman, are unacceptable in a modern, democratic and tolerant society where all citizens, including detainees, are equal before the law. The position that visits by representatives of other dogmas are disallowed because they amount to proselytism is based on a number of assumptions which are groundless (e.g. the volatile will of the prisoners). The report recommends that the prison authorities allow visits by any church representatives requested by the detainees and that the prison regulations be amended to clearly reflect that right.

Comment:  A number of issues arise as a result of this report. To start with, the policy of requesting detainees to declare their religion upon admission to the prison is highly problematic. In other contexts, the Ombudsman herself expressed the view that religion is sensitive personal data.[3] The Ombudsman herself has also repeatedly raised an issue with the Ministry of Education for requiring pupils to declare their religion. It therefore does not follow that this reasoning should apply to school children and not to detainees. Secondly, an issue that needs to be addressed is whether the prison authorities apply the same policy of restricting visits from church representatives to the representatives of the Greek Orthodox Church. The author is aware that orthodox priests regularly visit foreign detainees in the prison in order to offer them their support and confessional service, without even requiring permit from the prison authorities;[4] this is somehow not deemed by the prison authorities as carrying the risk of proselytism. This amounts to a direct violation of the non-discrimination principle, as enshrined in the Constitution (article 28), in the horizontal directive and in Directive 78/2000/EC if one is to endorse the scholarly position that the prison is also a workplace, since detainees are asked to perform specific tasks. In this particular case, the Ombudsman, who is also the heading the Equality Body, was apparently unwilling to make use of the wide powers granted by law[5] to the Equality Body in order to apply the non-discrimination principle on the ground of religion or to introduce the provisions of the horizontal directive into the debate. Thirdly, the remarks contained in the report regarding the Ombudsman’s appreciation of the difficulties facing the prison authorities as a result of the ethnically and religiously diverse prison population and the acceptance of the prohibition of religious ceremonies may not withstand the test of legality. The fact that prior arrangements are necessary in order for religious ceremonies to be conducted in the prison church does not relieve the prison authority from the duty to allow these ceremonies, as an expression of the right to practice one’s religion. A remark that is perhaps called for under the circumstances, and is conspicuous by its absence, is that the prison population would be significantly less (and less ‘ethnically and religiously diverse’) if administrative detention was available to third country nationals who are serving sentences or merely detained, sometimes indefinitely, on immigration related offences, as this category forms the majority of third country nationals under detention. It is noted that the Ombudsman is, among other offices held, the independent authority for the prevention of torture; its first annual report in 2011 records her regret over the lack of cooperation on the part of the prison authority.[6]

Source:

• The report is available in Greek at: http://www.ombudsman.gov.cy/Ombudsman/ombudsman.nsf/presentationsArchive_gr/presentationsArchive_gr?OpenDocument, Accessed on 22.11.2012.

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