Differences in the regimes for serving prison sentences for men and women are incompatible with the equality principle included in the Satversme
On 7 November 2019, the Constitutional Court passed the judgement in case No. 2018-25-01 “On Compliance of Section 504 of the Sentence Execution Code of Latvia with Article 91 of the Satversme of the Republic of Latvia”.
The Contested Norm
Section 504 of the Sentence Execution Code of Latvia (hereinafter – the Code) establishes the regime for serving the sentence in closed prisons, inter alia, that men, who have been sentenced to the deprivation of liberty for committing a serious or a particularly serious crime, serve the sentence in a closed prison.
The Norm of Higher Legal Force
Article 91 of the Satversme of the Republic of Latvia (hereinafter – the Satversme): “All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind.”
The Facts
The case was initiated with respect to an application submitted by Andris Otto. The applicant is serving a sentence of deprivation of liberty at a closed prison at the lowest level of sentence serving regime. The Applicant holds that the contested norm is incompatible with the equality principle included in Article 91 of the Satversme because it establishes differential treatment of convicted men. I.e., men, who have been sentenced for serious and particularly serious crimes, must serve their sentence at a closed prison, but women – at a partly-closed prison. Accordingly, the scope of the rights and obligations that these persons have at the institution for deprivation of liberty, are said to differ.
The Court’s Findings
On the limits of reviewing the contested norm
The Court found that Section 504 of the Sentence Execution Code of Latvia (hereafter – the Code) as a united legal regulation established the regime for serving the sentence for convicted men, who are serving the sentence of deprivation of liberty in a closed prison, defining, inter alia, the rights, obligations and restrictions of the convicted persons as well as the course of serving the sentence. Thus, the Constitutional Court examined compliance of the whole Section 504 of the Code with Article 91 of the Satversme. [15.]
On gender as a criterion included in Article 91 of the Satversme
The Constitutional Court found that gender was one of the criteria that were included in the content of Article 91 of the Satversme. [17.]
On comparable groups of persons
In the framework of the present case, men and women, who, being of age, have committed a serious or a particularly serious crime, have been sentenced to deprivation of liberty and are serving their sentence, are in similar and comparable circumstances. The Constitutional Court also recognised that convicted women, who were pregnant or were breast-feeding, are not in similar and comparable circumstances with the persons referred to above. [19.]
On the manifestation of differential treatment
The Constitutional Court found that the contested norm envisaged differential treatment of persons who were in similar and comparable circumstances. I.e., depending on the prison, where the convicted person starts serving the sentence of deprivation of liberty, the scope of rights and restrictions defined for convicted men and women in each level of sentence serving regime differs, first and foremost, with respect to the convicts’ right to have contacts with their relatives. [20.3.]
On whether the differential treatment envisaged in the contested norm has been established by law
The Constitutional Court recognised that the differentia treatment envisaged in the contested norm had been established by law. [21.]
On whether the differential treatment envisaged in the contested norm has objective and reasonable grounds
On the historical context of women’s rights and gender equality
Historically, women have been restricted in their rights; however, in the 20th century, with the development of a democratic state governed by the rule of law, the gender equality was reinforced. [22.1.] Gender is one of the prohibited grounds for discrimination, established as the result of historical development of women’s rights and gender equality. [22.3.]
On women as group in need of special protection
States take special measures to reinforce the equality of women and to eliminate inequality that has developed historically. These measures are of temporary nature and must be revoked when the aim thereof is attained. [23.1. and 24.]
Women must be considered as being a group of convicts in need of special protection, and they have specific needs; the State must take special care to provide for these needs in organising the execution of a prison sentence. International norms of human rights also set such requirements. [23.2.]
The differential treatment of convicted men occurred because the State took special measures to ensure the rights of convicted women and to decrease the gender equality that had developed historically. [23.3.]
In the present case, to examine, whether the contested norm complied with Article 91 of the Satversme, the Constitutional Court ascertained whether objective and reasonable grounds still existed for establishing a different regime for serving a prison sentence for convicted men, including different scope of rights and obligations, compared to convicted women. [24.]
On restrictions on the right to private life
The differential treatment of convicted men most significantly manifests itself in the restrictions on the right to private life. The Constitutional Court concluded: in examining the contested norm, the Constitutional Court should take into account that it affected not only the rights of a convicted man but also the rights of his family members and that the relationships between parents are children required special protection. [26.]
In the context of re-socialisation and adapting to life after release from prison, maintaining relationship with the family is equally important both for convicted women and convicted men. [27.]
On traditional gender roles in society and family
With the growing awareness of equality between men and women in a democratic state governed by the rule of law and in society, stereotypes or notions of the traditional roles of each gender, inter alia, in the family, have significantly changed. For example, today it not questioned that the father and the mother have equal rights in the upbringing of children, and the importance of the father in the child’s development is particularly emphasised. [28.]
Although anatomical and physiological differences between the genders exist, also most recent studies in neuroscience recognise that the notion of pronounced gender differences in thinking and behaviour has become out-dated. [28.]
Moreover, irrespectively of their gender, convicted persons may perceive differently the sentence of deprivation of liberty and the restrictions related to it, as well as re-socialisation. [28.]
On the equality of men and women
The equality of men and women has been recognised in the Latvian legal system, inter alia, also in matters related to marriage and family relationships. [29.]
The convicted men have fewer possibilities to have contacts with their relatives than the convicted women. Hence, also the children of convicted men have fewer possibilities to meet their convicted father compared to the possibilities that the children of convicted mothers have to meet their mother. The differential treatment that follows from the contested norm affects a significant number of persons – convicted men and members of their families. [29.1.]
In the current system of sentence execution, the individual needs and risks of each individual cannot be taken into account in full, in determining the sentence serving regime, rights and restrictions applicable to him. [29.2.]
On whether the differential treatment of convicted men has objective and reasonable grounds
A legal regulation, which only on the basis of gender criterion, without taking into account the individual needs and risks of each convicted person, envisages for the convicted men a stricter regime for serving the sentence, as well as different rights and restrictions that follow from it (in particular, with respect to restrictions on private life) compared to convicted women, does not ensure that the rights of convicted persons are respected. Likewise, this does not ensure to the families of convicted men the same protection as to the families of convicted women and, inter alia, infringes on the bests interests of the convicted men’s children. [29.3.]
A legislator may not use considerations of economic nature to substantiate why a regulation that envisages differential treatment of convicted men has not been reviewed for years. [29.3.]
In view of the findings presented above, the Constitutional Court recognised that there were no objective and reasonable grounds for the differential treatment of convicted men. Hence, the contested norm is incompatible with Article 91 of the Satversme. [29.3.]
On the legislator’s discretion
It is not the task of the Constitutional Court to indicate concrete solutions to sentence execution since the legislator is the first who must make considerations regarding a new regulation on the system of sentence execution that would comply with the Satversme and the international human rights provisions. At the same time, the legislator must take into account that convicted women are a group of convicts in need of special protections and must regularly consider whether and what kind of special measures are required to protect this group of convicts. [30.]
On the date as of which the contested norm becomes void
The contested norm regulates issues linked to serving a criminal sentence, which is significant in the national legal system. The legislator needs a reasonable time period for adopting new legal regulation since the respective changes must be aligned with the general policy of sentence execution. Moreover, until the new legal regulation enters into force, continuity of sentence execution must me ensured. Hence, in this case, the contested norm cannot be deemed as being void retroactively or being void as of the date when the Constitutional Court’s judgement enters into force. [31.]
The Constitutional Court held:
to recognise Section 504 of the Sentence Execution Code of Latvia, insofar the differential treatment of convicted men established in it lacks objective and reasonable grounds, as being incompatible with Article 91 of the Satversme of the Republic of Latvia and void as of 1 May 2021.
The judgment of the Constitutional Court is final and is not subject to appeal. The text of the judgement is available on the homepage of the Constitutional Court: https://www.satv.tiesa.gov.lv/web/viewer.html?file=/wp-content/uploads/2018/12/2018-25-01_Spriedums.pdf#search=
Linked case: 2018-25-01