The Constitutional Court of the Republic of Latvia, composed of the Chairman of the Court session Gunārs Kūtris, Justices Kaspars Balodis, Aija Branta, Juris Jelāgins, Kristīne Krūma and Viktors Skudra

based on Article 85 of the Satversme (Constitution) of the Republic of Latvia and Item 1 of Article 16, Item 11 of the first part of Article 17, Article 28.¹ of the Constitutional Court Law

having regard to the constitutional claim of Mārtiņš Ēcis (hereinafter – the Applicant),

on 23 September 2008 in the Court session examined the case in written proceedings

1.  The first part of Section 52 of the Latvian Penalty Execution Code (hereinafter – the Code) provides: “Prisoners sentenced to deprivation of liberty shall be provided with an eight-hour working day six days per week. The beginning and the end of work (working shift) shall be established according to the agenda of the place of deprivation of liberty. Prisoners shall be provided with one rest day per week, and they shall be provided a rest day on public holidays.” The Applicant contests the first sentence and the third sentence of this norm regarding rest days (hereinafter – the Contested Norms on Rest Days), as well as the first sentence of the sixth part of Section 52 of the Code, which provides: “Vacation of prisoners shall be unpaid” (hereinafter – the Contested Norm regarding Vacation).

1.1. The Latvian SSR Corrective Labour Code was adopted on 23 December 2970 and came into force on 1 April 1971. On 29 August 1991 the Decision of the Supreme Council “Regarding Application of the Latvian SSR Legislative Acts in Latvia” was adopted and simultaneously came into force. This Decision provided that the Latvian SSR Corrective Labour Code shall be regarded as the Latvian Corrective Labour Code up to elaboration of a new code. On 30 December 1994 the Law adopted on 15 December of the same year “Amendments to the Latvian Corrective Labour Code” came into force, wherewith the title of the Code was formulated as it is nowadays.

1.2. Length of prisoners’ labour week and the number of rest days has not, in fact, changed since coming into force of the Code in 1971. The first part of Section 52 thereof provides: “Persons serving their sentence in training-schools and prisons shall be provided with an eight-hour working day; they shall be provided with one rest day per week.”

Whist, the fifth part of Section 52 of the Code initially provided: “Persons deprived of liberty shall not be conferred the right to vacation during serving of the sentence”. By the law of 14 October 1998, which came into force on 1 April 1999, there were amendments made to the Code. The fifth part of Section 52 of the Code acquired the following wording: “Employed prisoners serving their sentence at prisons shall be provided with a six-day paid vacation, but employed juvenile shall be provided with a twelve-day paid vacation. Prisoners serving their sentence in an open prison, if they have not received disciplinary punishment during the last 30 days, shall have the right to spend the vacation outside certain territory, given the permission of the supervisor of the prison.”

The rights to a paid vacation for employed prisoners were conferred to prisoners from 1 April 1999 to 9 December 2004, until the word “paid” was excluded from the fifth and the sixth part of Section 52 of the Code by the amendments to the Code of 11 November 2004.

2. The Applicant holds that the Contested Norms do not comply with Article 107 of the Satversme of the Republic of Latvia (hereinafter – the Satversme). The Contested Norms restrict the rights of employed prisoners to weekly holidays and paid annual vacation.

The Applicant indicates that, by establishing a six-day working week, he has been denied the rights guaranteed in Article 107 of the Satversme to at least two free days per week. If it is necessary to work six days per week, he is denied the possibility to use the free days of rest for other activities, e.g. sports or education. Observing what has been established by the Contested Norms regarding free days, he had to work eight hours six days per week. Moreover, the Labour Law provides for only a 40 hour working week. The Applicant, by working 48 hours per week, receives the minimum wage of the State, which has been provide for a 40 hour working week. Consequently, the prisoners have been put into a worse situation, if compared to other employed persons.

On the other hand, the Contested Norm regarding Vacation violates the rights of the Applicant established in Article 107 of the Satversme to paid annual vacation, since it does not at all provide for such possibility.

The Applicant shares the viewpoint that employment of prisoners has a particular objective – re-socialization, rather that gaining any benefit, however it must be emphasized that this objective would not change if prisoners would be treated as free employed persons as to the number of working hours and free days, and if they were provided for paid annual vacation.

Moreover, in this case, the Recommendation of the Committee of Ministers of the Council of Europe of 11 January 2006 Rec(2006)2 “European Prison Rules” (hereinafter – the European Prison Rules), which provides that convicted persons maximum working hours per day and week shall be established observing local provisions or practices that regulate employment of free persons.

Having got acquainted with case materials, the Applicant emphasized that he does not agree with the opinion expressed in the reply of the Saeima that persons convicted to deprivation of liberty shall be employed as much as possible by thus favouring their activity. The Applicant holds that re-socialization of prisoners include not only employment. It is comprised of several parts, including education and sports activities, activities correcting behaviour, etc. Therefore prisoners must be allowed to fulfil their work in a wholesome manner and in accordance with the norms of the Satversme and international standards that provide only for a 40 hours working week by thus providing time for other activities.

The Applicant does not agree with the arguments provided by the Saeima regarding the fact why vacation shall not be paid. He indicates that funding provided for the place of custody is insufficient for meeting additional needs of prisoners, and it is impossible even for employed prisoners to ensure, for instance, assistance of a psychologist or education that is not provided by administration of a prison.

The Applicant emphasizes that the basic rights established in Article 107 of the Satversme may not be restricted, and consequently the Contested Norms do not comply with the abovementioned Article of the Satversme.

3. The institution that passed the Contested Act – the Saeima of the Republic of Latvia (hereinafter – the Saeima) – asks, in its reply, the Constitutional Court to recognize the application as ungrounded, and the Contested Norms – as compliant with Article 107 of the Satversme.

The Saeima does not agree with the opinion of the Applicant and holds that the Contested norms comply with legal norms of a higher legal force due to several reasons.

Article 107 of the Satversme provides for the rights to weekly holidays and paid annual vacation. Consequently, employees have the right to rest, which is guaranteed by the State according to procedure established by law. However, the abovementioned rights shall be applied to the subjects mentioned in Article 106 of the Satversme, namely, persons who have the rights “to freely choose their employment and workplace according to their abilities and qualifications” by thus forming a united regulation of the Satversme system.

The Saeima emphasizes that employment of prisoners is a specific field of execution of penalty, the aim of which is to ensure prisoners the possibility to acquire the necessary working and social skills that would be useful after leaving the place of deprivation of liberty. The aim of such employment is not to provide prisoners with the possibility to compete in the labour market with other persons who are also serving their sentence and hence to participate in the labour market during serving their own sentence.

Referring to the judgment of the Constitutional Court in the case No. 2007-31-01, the Saeima indicates that the State is obligated to regulate the issues regarding prisoners separately from others. Moreover, this regulation on employment should not be identical with the regulation of legal labour relations of free employed persons. Consequently, it is possible to conclude that Article 106 and 107n of the Satversme shall not be directly applied to prisoners. The rights to weekly holidays and paid annual vacation shall not be automatically applied to prisoners that are employed in places of deprivation of liberty. The state is obligated to establish who prisoners can exercise their rights to rest.

The Saeima expresses a viewpoint that the Contested Norm regarding Vocation does not prohibit providing prisoners a vacation. The essence of a paid vacation is to compensate lack of remuneration for an employee, and this payment shall be regarded as social guarantee of an employee. Whilst, prisoners who are kept by means of the State budget, and consequently, they do not need this material support during their vacation.

Replying to the questions set by the Constitutional Court, the Saeima indicates that Article 106 and Article 107 shall not be fully applied to prisoners, especially as to the question regarding free days and paid vacation. These Articles shall be applied to free employed persons. Consequently, different provisions can be applied to these two groups of persons.

The Saeima emphasizes that Article 107 of the Satversme regarding free days and vacations shall not be applied to prisoners and consequently no restriction of rights provided in this Article can be established. On the other hand, in the case of absence of violation of rights, it is impossible to assess the legitimate objective thereof, as well as it compliance with the principle of proportionality.

However, the Saeima assumes that the minimum requirements included in the Contested Norms can be improved, and prisoners could be conferred broader rights and guarantees as to their employment. In order to solve the problem of employment of prisoners, the Ministry of Justice has elaborated the Project “Conceptions for Employment of Persons Sentenced to Deprivation of Liberty” (hereinafter – Conception Project), which was announced on 29 November 2007 at the meeting of secretaries of the State. After the Conception Project is examined and approved by the Cabinet of Ministers, the draft law “Amendments to the Latvian Penalty Execution Code” shall be developed.

The Saeima indicates that in the case of the Constitutional Court would request concretization of the Contested Norms, elimination of the problems established should be regarded conjunctly with the abovementioned conception. Consequently, enough time should be given for improvement of the system.

4. Ombudsman of the Republic of Latvia (hereinafter – the Ombudsman) indicates in its opinion that, due to the specific status of prisoners, the norms of the Labour Law shall not be applied thereto. Special norms of the Code regarding employment of prisoners shall be applied to them. Employment of prisoners shall be carried out without any labour agreement and by an order of the supervisor of the place of deprivation of liberty.

The Ombudsman emphasizes that labour relations of prisoners cannot be regarded as identical to those of free employed persons, and it particularly concerns the principles and system of labour remuneration. Referring to the norms of Section 52 of the Code, the Ombudsman expresses a viewpoint that general principles of labour law, which follow from the norms of human rights, shall be observed in relation to prisoners, for instance, it shall be prohibited to establish a non-proportionate working hours and working conditions. Moreover, it is provided in the European Prison Rules that maximum amount of working hours per day and week shall be established for a prisoner according to provisions and practices that regulate employment of free employees. Prisoners must also have at least one free day per week, as well as enough free time for education and other activities. Local provisions of Latvia that regulate employment of free employees provide that a working week shall not exceed 40 working hours. In normal conditions, a five-day working week is established, and only in separate cases a six-day working week can be determined by shortening each working day by an hour. Taking into consideration the European Prison Rules, the same principles of working hours shall be applied to prisoners.

The Ombudsman holds that the guarantees that are not related with the objective of re-socialisation, for instance, the rights to rest, shall be provided for prisoners like for free employed persons, because it is impossible to establish any legitimate objective for restriction of these rights. The objective of the rights to rest is related with ensuring of a good health of an employee and respect to a free time and labour efficiency. The Ombudsman concludes that the prisoners must be provided with the rights to rest, like it is provided for free employed persons, although the objectives of employment, as well as the remuneration system differ. Consequently, the Contested Norms regarding Vacation does not comply with Article 107 of the Satversme because it unjustly restricts the rights of persons to rest.

The Ombudsman emphasizes that the rights to vacation is included into the rights to vacation. The Contested Norm regarding Vacation regulates the use of vacation of prisoners. However, payment of vacation does not fall within the system of labour remuneration for prisoners, which may differ from labour remuneration system for free employed persons. The objective of remuneration of free employment is to provide persons with subsistence, and to provide means of subsistence for persons during their vacation. The Ombudsman indicates that the prisoners, during the vacation, receives livelihood, material guarantees for meeting their everyday needs and public facilities according to the general order, and consequently the guarantees related with paid vacation shall not be applied to prisoners. Consequently, the Contested Norm regarding Vacation complies with Article 107 of the Satversme.

5. The Ministry of Justice indicates that, under the sixth part of Section 51 of the Code, prisoners shall be employed in places of deprivation of liberty without concluding a labour agreement, namely, each prisoner shall be employed by means of an order of the supervisor of a prison. Since employment of prisoners cannot be compared with legal labour relations outside places of deprivation of liberty due to the different objectives of employment, the State is obligated to regulate the issues regarding employment of prisoners separately. Moreover, this regulation should not be identical to regulations of employment regarding legal labour relations outside prison. However, by creating a different regulation, the State shall as far as possible guide itself by recommendations provided by the United Nations Organization and the Council of Europe in this regard.

According to the Standard Minimum Rules for the Treatment of Prisoners of the United Nations Organization of 1995 (hereinafter – UN Standard Minimum Rules for the Treatment of Prisoners) and European Prison Rules, the maximum number of working hours per day and per week shall be established, observing local provisions or practices that regulate employment of free persons. This recommendation has been taken into account also in the fourth part of Section 52 of the Latvian Penalty Execution Code, which provides that prisoners serving their sentence in a training school for juveniles, working hours per day and free days per week shall be established having regard the general provisions according to the Labour Law.

The Ministry of Justice admits that the Contested Norms regarding Rest Days do not comply with Article 107 of the Satversme, since they provide for a different regulation for prisoners if compared to free employed persons, as well as they provide for different regulation for different kinds of prisoners, namely, minor and adult prisoners.

The Ministry of Justice expresses a viewpoint that work is the main source if means of subsistence for the majority of the society, and the aim of a paid vacation is to ensure the necessary means of subsistence for persons. A free able-bodied person has the right and obligation to gain the necessary means of subsistence. Places of custody are funded form the State budget, which, in its turn, is formed by collected taxes. As to prisoners, normative acts obligate places of deprivation of liberty to ensure their nourishment and other means to ensure their existence during the entire period of serving one’s sentence. Consequently, employed prisoners and free employed persons do not enjoy equal and comparable conditions. The Para 91 of the Committee of Ministers of the Council of Europe’s Recommendation of 12 February 1987 No. Re (87)3 “European Prison Rules” provides that “prisoners are treated without restrictions other than those necessary for the penal procedure and the security of the institution”. Observing the abovementioned, the Ministry of Justice concludes that the Contested Norm regarding Vacation complies with Article 107 of the Satversme because it is proportionate, it has a legitimate objective and it is necessary for procedure of penalty.

6.  The Latvian Centre of Human Rights (hereinafter – the Centre of Human Rights) indicates in its opinion that the Contested Norms regarding Rest Days provide for such working hours for prisoners that exceeds the minimum number of working hours per week, - prisoners are provided for an eight-hour working day six times per week, and the total amount of working hours per week for prisoners constitutes 48 hours. Consequently, employed prisoners are performing unpaid overtime work. According to Item 1 of Section 136 of the Labour Law, “overtime work shall mean work performed by an employee in addition to regular working time”. Employed prisoners receive the minimum wage for work performed in the frameworks of a normal working week and also for overtime work. Since prisoners who work 48 hours per week receive the minimum wage that is established for work within the frameworks of a normal working hours, the legislator has violated the rights established in Article 107 of the Satversme to receive, for the work done, commensurate remuneration, which shall not be less than the minimum wage established by the State.

The Centre of Human Rights indicates that up to 1 April 1999, the fifth part of Section 52 of the Latvian Penalty Execution Code provided: “Persons deprived of liberty shall not be conferred the right to vacation during serving of the sentence”. However this norm has been amended and employed prisoners serving their sentence at prisons shall be provided with a six-day paid vacation, but employed juvenile shall be provided with a twelve-day paid vacation. The Centre of Human Rights emphasizes that the rights to a paid vacation for employed prisoners existed up to 9 December 2004, which is more than fire years. The word “paid” mentioned in the fifth and the sixth part of Section 52 of the Code has been excluded by the amendments of the Law of 11 November 2004, which came into force on 9 December 2004.

Although the abovementioned amendments during the period of their adoption have not been discussed much, still, when analysing the justification mentioned in the annotation thereof it is possible to conclude that the rights of employed prisoners to a paid vacation have been restricted in order to save resources that could be used for other purposes. This may not serve as a legitimate objective for restriction of rights, in the result of which the situation of employed persons has became worse.

The Centre of Human Rights holds that the Contested Norm regarding Vacation does not comply with Article 107 of the Satversme.

7. The Latvian Prison Administration has provided information regarding employment of prisoners. On January 1, 2008, there were 1393 employed prisoners in the prisons of Latvia. 731 prisoners were employed as the stuff of the prisons, and 662 prisoners – in working places created by businessmen. ON March 2008, the total number of employed prisoners constituted 1574 persons, 848 out of which were employed as stuff of the prisons and 725 – in working places established by businessmen.

8. The Applicant, in his constitutional claim, asks to assess compliance of the Contested Norms with the rights to weekly free days and paid annual vacation established in Article 107 of the Satversme.

8.1. Article 107 of the Satversme provides: “Every employed person has the right to receive, for work done, commensurate remuneration which shall not be less than the minimum wage established by the State, and has the right to weekly holidays and a paid annual vacation.” The content of this Art5icle shall be considered in conjunction with Article 89 of the Satversme, which provides that the State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia.

It follows, among the rest, from Article 107 of the Satversme that there must be the minimum wage established in the State, and employers cannot pay employees the wage that would be less than the minimum wage established in the State. The first part of Section 2 of the Convention No. 131 concerning Minimum Wage Fixing adopted by the International Labour Organization on 22 June 1970 requires that the Member States of the Convention would, by means of normative acts, fix the minimum wage that could not be reduced. Consequently, fixing of the minimum wage is the issue to be resolved by means of legislation (see: Judgment of 21 November 2005 by the Constitutional Court in the case No. 2005-03-0306, Para 6).

According to the first part of Section 61 of the Labour law, the minimum wage shall not be less than the minimum level determined by the State. However, the second and the third part of this Section authorize the Cabinet of Ministers to specify the minimum wage within the scope of normal working time, as well as the minimum hourly wage rates and procedures for specification and review of the minimum monthly wage.

8.2. The minimum wage is closely related with normal working time, namely, it is paid for a certain working time.

The duty of the State to fix the minimum working time and minimum rest time is provided by several international legal acts. Item “d” of Section 7 of the International Covenant on Economic, Social and Cultural Rights provides for the rights of a person to rest, free time and reasonable restriction of working time, periodically paid vacation, as well as to remuneration for work during State holidays. Article 2 of the European Social Charter, among the rest, provides that the Parties undertake: to provide for reasonable daily and weekly working hours, the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit; o provide for a minimum of two weeks' annual holiday with pay; to ensure a weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest. Whilst, Article 24 of the Universal Declaration of Human Rights provides that everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

8.3. Section 131 of the Labour Law regulates the normal working time and provides that Regular daily working time of an employee may not exceed eight hours, and regular weekly working time – 40 hours. The length of the working week is, in its turn, regulated by Section 133 of the Labour Law: “A working week of five days is specified for employees. If due to the nature of the work it is not possible to determine a working week of five days, an employer, after consultation with employee representatives, shall specify a working week of six days.”

It clearly follows from the aforesaid that a normal working time is 40 hours per week. The number of rest days is related with a certain number of working hours per day, and it shall not be less than one rest day per week.

On the other hand, Section 150 of the Labour Law regulates the rights of an employee to paid annual vacation and provides that Annual paid leave shall be granted each year at a specified time in accordance with agreement between the employee and the employer or with a leave schedule which shall be drawn up by the employer after consultation with employee representatives.

Similar principles are provided for in the Covenant No. 47 of the International Labour Organization “Concerning the Reduction of Hours of Work to Forty a Week”, European Social Charter and other international documents.

9.  The Saeima has indicated in its reply that Article 107 of the Satversme regarding its part on free days and vacations does not apply on prisoners because it concerns the subjects mentioned in Article 016 of the Satversme, namely, persons who have the right to freely choose their employment and workplace according to their abilities and qualifications, namely – employees. Employed prisoners shall not be included in the group of persons, therefore it is impossible to establish violation of the abovementioned rights. However, in the case of absence of such violation it is impossible to assess the legitimate objective of the restriction, as well as its compliance with the principle of proportionality.

Thus it must be first of all established whether Article 107 of the Satversme can be applied to prisoners and whether a person that is being employed at prison fall within the content of the notion “employee” used in this Article.

9.1. The Committee of Ministers of the Council of Europe’s Recommendation of 12 February 1987 No. Re (87)3 “European Prison Rules” was supplemented and revised, and it was substituted by the Committee of Ministers of the Council of Europe’s Recommendation Rec(2006)2 “European Prison Rules”.

European Prison Rules were adopted to provide the possibility to the Member states of the Council of Europe to guide themselves by the principles included in their legal acts and practice. “Even though the formal status of the Regulations is to recommend guidelines to the administrations of imprisonment places, they charge the Member States, which have adopted the Regulations with strict moral and political duties” (see: Judgment of 19 December 2001 by the Constitutional Court in the case No. 2001-05-03, Para 6 of the Concluding Part). The fundamental principles included in the European Prison Rules provide: “All persons deprived of their liberty shall be treated with respect for their human right. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.”

The Constitutional Court has already examined violations of the basic right sof prisoners (including the rights established in Article 107 of the Satversme), however none of these judgments could serve as the basis for a conclusion that no basic rights could be applied to prisoners (see, e.g.: Judgment of 14 June 2007 by the Constitutional Court in the case No. 2006-31-01, Judgment of 21 November 2005 by the Constitutional Court in the case No. 2005-03-03 and judgment of21 November 2001 by the Constitutional Court in the case No. 2001-05-03). An analogous opinion has been expressed also by the Supreme Court of the Republic of Latvia: “The State must ensure that persons serving their sentence were re-educated and rehabilitated, as well as they were isolated from the rest of the society by thus preventing that these persons would commit other criminal delinquencies. However, this does not mean that an imprisoned person loses his or her human rights as such. Imprisoned person, within the territory of the place of custody, like persons outside places of deprivation of liberty, must be ensured with human rights at a sufficient extent” (see: Judgment of 19 August 2008 by the Administrative Case Department of the Senate of the Supreme Court in the case No. A7010108 SKA - 581/2008, Para 6, http://www.at.gov.lv/files/archive/department3/2008/08_ska_581.doc). The European Court of Human Rights has also indicated in its case-law that imprisoned persons continue enjoying their basic rights when in prison (see, e.g.: Turkey, judgment of 20 May 2008, No. 16330/02, Para 46).

9.2.  The Constitutional Court shares the viewpoint of the Ombudsman and the Ministry of Justice that labour relations of prisoners may not be regarded as labour relations outside custody, however, the principles of labour law that follow from the norms of human rights must be observed in relation to prisoners. Therefore, persons employed in prisons should not be provided with a non-commensurate working time or inimical and unsafe working conditions.

When regulating employment of prisoners, the State must observe the basic rights of these persons insofar as it is permitted by the objective of the punishment and the regime of the place of custody, as well as possible, it must guide itself by the recommendations made by the United Nations Organization and the Council of Europe concerning employment of prisoners.

The Code, in accordance with the first part of Section 1, regulates “provisions and procedures for execution of criminal penalties provided in the Criminal Law, the status of prisoners, competence of State and municipal institutions in penalty execution”. However, Chapter 8 of the Code provides for specific norms that regulate employment of prisoners.

Taking into account the special status of prisoners, according to Section 51 of the Code, employment of these persons shall be performed without a labour agreement, but by means of an order of the supervisor of a place of deprivation of liberty. Depending on the regime of the custody, supervision of persons shall be ensured.

9.3. However, this procedure, according to which prisoners are involved into legal labour relations, shall not be regarded as an obstacle for the fact that the abovementioned persons would pertain to the content of the notion “employee” mentioned in Article 107 of the Satversme, especially in the case if prisoners are employed in a working place created by a businessman. In this case, all persons that are involved in legal labour relations at the place of custody, shall be considered as persons who are employed in accordance with the Labour Law if compared by their basic rights that follow from Article 107 of the Satversme.

Consequently, the statement of the Saeima that Article 107 of the Satversme regarding free days and vacation may not be applied to prisoners is ungrounded. The legislator has regulated the issues (basic principles) of prisoners in a separate Code, and these regulations may differ from the legal regulation on labour (see: Judgment of 14 June 2007 by the Constitutional Court in the case No. 2006-31-01, Para 14.2 of the Concluding Part). But it is impossible to include such norms into the special regulation that would deny, in their terms, the rights established in Article 107 of the Satversme.

10.  The basic rights are not absolute, and they can be restricted, moreover, restrictions for prisoners may be even more strict, if compare to free persons.

11. Employment of prisoners has a different legal regulation, which is established by the Code. Thus the Contested Norms restrict the rights established in Article 107 of the Satversme, since they provide for an eight-hour working day in a six-day working week for prisoners, as well as they provide for one rest day and unpaid vacation.

Article 116 of the Satversme does not mention the rights guaranteed in Article 107 of the Satversme, however this does not mean that these basic rights are absolute and they cannot be restricted. The Satversme is a single whole and the norms enshrined into it shall be interpreted systemically. The presumption that no restrictions may be imposed on the rights of every particular person, envisaged in Article 107 of the Satversme, would not comply with the objective of punishment (custody regime), and the basic rights of other persons guaranteed in other articles of the Satversme (see: Judgment of 22 October 2002 by the Constitutional Court in the case No. 2002-04-03, Para 2 of the Concluding Part).

Both, in assessment of restrictions of the basic rights, as well as in establishment thereof, certain requirements must be observed, namely, these restriction must be of the following nature: 1) they must be established by law; 2) they must have a legitimate objective; 3) they must be commensurate (proportionate) with this objective.

11.1. The restriction of the basic rights established in the Contested Norms are included in the first and the third sentence of the first part of Section 52 of the Code, as well as the first sentence of the first of the same Section. Respectively, these restrictions are established by law.

11.2. The regulatory framework regarding 48 hour working week for prisoners exists since coming into force of the Code in 1971. At that time, free employed persons were also employed in an eight hour working day, and the working week was six days. Thus a similar length of working week was established for employed prisoners and free employed persons.

At present, according to the Contested Norm, persons deprived of liberty are provided with an eight hour working day and six working days per week, as well as they are provided with one rest day. Consequently, for more than 10 years the legislator has not revised the regulations regarding the length of a working week for employed prisoners, although the length of employment of free employed persons has been changed, and several international recommendations regarding employment of prisoners requires approximating the life in places of custody with the positive aspects that are characteristic for the life outside prison.

Both, the European Prison Rules and the Standard Minimum Rules for the Treatment of Prisoners of the United Nations Organization provides employed prisoners with at least one free day. The third sentence of the first part of Section 51 of the Code includes this very provision. However, the Constitutional Court draws attention to the fact that one rest day per working week provided by the Contested Norm is closely related with the length of a working week of employed prisoners – 48 hours. Therefore both contested norms include in the first part of Section 52 of the Code regarding free days shall be considered jointly.

When examining the case under review, it cannot be confirmed that the rights of prisoners to a normal working time, namely, 40 hours per working week and at least one free day, should be restricted in order to reach any legitimate objective. The institutions that were asked to provide their opinions regarding compliance of the Contested Norms with the Satversme (the Ombudsman, the Ministry of Justice and the Centre of Human Rights) have not indicated why the restriction included in the Contested Norms on free days would be necessary. The abovementioned institutions have expressed a viewpoint that these norms do not comply with Article 107 of the Satversme.

The Saeima admits that the minimum requirements included in the Contested Norms can be improved, and it draws attention to the draft Conception elaborated by the Ministry of Justice. Para 4.3.6 thereof provides that “when elaborating normative regulations regarding working time (prisoners shall be provide with the same normal working time as other inhabitants – 40 hours per week), rest time of prisoners and other general conditions of employment that are not directly mentioned in the Conception, there must be system formed that would ensure that these provisions would comply, as much as possible, with the regulatory framework established in the Labour Law by forming a respective tieback in the normative acts regulating execution of criminal penalties (see: case materials, pp. 76).

11.3. The Contested Norm on Vacation provides that vacation of prisoners shall not be paid.

Both, the Saeima and the Ministry of Justice indicate that the aim of a paid vacation is compensation of lack of wage during rest time of an employee, and this payment shall be characterized as a manifestation of social security of an employee. However, prisoners are maintained by means of the State budget, and thus it is not necessary to provide them such material aid during their vacation. However, neither the Saeima, nor the Ministry of Justice has indicated what serves as a legitimate objective for restriction of the basic rights.

Moreover, for prisoners who serve their sentence in an open prison and are employed in a working place created by a businessman on the basis of a labour agreement, as well as for minor inmates, vacation shall be paid according to the Labour Law, although they are already maintained by means of the State budget (see: case materials, pp. 39). Consequently, in places of custody the minimum material support provided by the State during vacation cannot serve as justification or explanation for establishing of such restriction.

A paid vacation is one of the guarantees established in Article 107 of the Satversme. The rights of employed prisoners to a paid vacation were effective from 1999 to 2005, which is more than five years (see: Para 1 of this Judgment). The word “paid” was excluded from the fifth and the sixth part Section 52 of the Code by the amendments of 11 November 2004 to the Code that are effective since 9 December 2004. It has been indicated in the annotation of the abovementioned amendments to the Code that the amendments included into the draft law have been developed in order to update and improve the process of execution of the deprivation of liberty and create additional resources that could be used for implementation of those tasks that are not ensured at a sufficient level. Such justification of the amendments allow concluding that the rights of employed prisoners to a paid vacation have been restricted in the result of coming into force of the amendments in order to save additional resources that could be used for other needs. However, neither the Saeima, nor the Ministry of Justice have not indicated this fact as the legitimate objective of the restriction of the basic rights. Also, when examining other case materials, it cannot be concluded that this conclusion could be regarded as a legitimate objective for the restriction of the basic rights of prisoners.

Vacation of an inmate has the same function if compared to a free employed person, i.e. rest. A prisoner that has been employed for a long period of time, like a free employed person, needs physical, as well as mental rest, and there is no reason to consider that employment of a prisoner would require less efforts if compared to work done by a free employed person. Vacation is established not only for restoration of capacity, but also for the purpose of re-socialization.

On the other hand, the issue regarding payment of vacation is related with the fact that conditions of custody must as far as possible be approximated to living conditions in freedom by preparing prisoners for a normal rhythm of working years after a person has earned the right to a paid vacation, during which his or her living standard would not fall. The State guarantees for a person (gives a clear indication) that he or she can earn a paid vacation working regularly. This also favours positive attitude towards work. Moreover, a paid vacation is particularly important in prison conditions when many things are provided only at the minimum level and thus remuneration of prisoners is essential as to ensuring additional health services, training, better food etc. In the majority of the States, e.g. Bulgaria, Bosnia and Herzegovina, Croatia, Slovenia, Finland, Hungary, Germany and other states employed prisoners have the right to a paid vacation.

The rights of prisoners to a paid vacation can be restricted (for instance, by providing less vacation days if compared to what has been established in the Labour Law), but these rights cannot be denied in their terms.

12. According to the third part of Article 33 of the Constitutional Court Law, the norm that the Constitutional Court has recognized as non-compliant with a legal norm of a higher legal force shall be regarded as invalid as of the day of publishing of the Judgment, unless the Constitutional Court has stated otherwise. Immediate recognition of the Contested Norms as invalid and exclusion thereof from the Code would mean that the length of employment of prisoners and their vacation would not be regulated at all. This would constitute even greater restriction of the basic rights, therefore the Constitutional Court shall establish the term of execution of this Judgment.

The Saeima, in its reply, refers to the Conception Project and indicates that implementation of this Conception would prevent non-compliance of the Contested Norms with the Satversme. The Constitutional Court takes into consideration the fact that for implementation of the Conception requires additional resources from the State budget, as well as amendments to several other normative acts, however the restriction of the basic rights established in the Judgment must be eliminated in the shortest time frame possible.

Based on Item 3 of the first part of Section 29 and Articles 30 – 32 of the Constitutional Court Law, the Constitutional Court

The Judgment if final and not subject to appeal.

The Judgment takes effect as of the day of publishing it.

The Presiding Judge G.Kūtris