Judgment
On Behalf of the Republic of
Latvia
Riga, April 23, 2009
in the Case No. 2008-42-01
The Constitutional
Court of the Republic of Latvia composed of the Chairman of the Court session Gunârs Kűtris, Justices Kaspars
Balodis, Aija Branta, Juris Jelâgins, Kristîne Krűma and Viktors Skudra,
based on the
constitutional claim of Jevgeňijs Cecervovs,
according to Article 85
of the Satversme (Constitution) of the Republic of Latvia, Article 16 (1),
Article 17 (1) (11) and Article 19.2 and 28.1 of the Constitutional Court Law,
on 27 March 2009,
in Court sitting examined the case
“On Compliance of the Words “One Hour Long”
and “at Presence of a Representative of an Investigation Prison Administration”
of Item 6 of Section 13 of the Law “On Procedures for Keeping in Custody” with
Article 96 of the Satversme (Constitution) of the Republic of Latvia”.
The Constitutional
Court has established:
1. The
Law “On Procedures for Keeping in
Custody” was adopted on 22 June 2006 and came into force on 18 July 2006. This
Law provides for the procedure of placing detained persons in an investigation
prison, as well as the rights and duties of the detained persons, providing
assistance for the detained persons, security, social rehabilitation, mental
assistance, breeding, employment and measures to ensure the regime of an
investigation prison. Section 13 of the
Law “On Procedures for Keeping in Custody” provides for the rights of
prisoners. Item 6 of the first part of this Section establishes that a detained person shall have the right
to one hour long visit with relatives or other persons not more often than once
per month and at presence of a representative of prison administration. On the
other hand, the second part of Section 13 provides that an investigating judge
or a court may restrict the rights established in Item 6 of the first part of
this Article.
The question
regarding restriction of the rights of a detained
person is also regulated by Article 271 of the Criminal Procedure Law.
2. The person who submitted the constitutional
claim Jevgeňijs Cecervovs (hereinafter – the Applicant) holds that the
words “one hour long” and “at presence of a representative of an investigation
prison administration” of Item 6 of Section 13 of the Law "On Provisions
for Keeping in Custody" (hereinafter - the Contested Norm) does not comply
with Article 95 of the Satversme of the Republic of Latvia (hereinafter – the
Satversme).
It has been indicated in the constitutional claim that the Contested Norm
restricts the rights of a person to private life and family life. These rights
can be restricted if the restriction is established by law, it has a legitimate
objective and it is indispensible in a democratic society. The Applicant admits
that the restriction has been established by law. Since the objective of the
abovementioned norm is to prevent more criminal offences committed by the detained persons, prevent them escaping a prison or adjusting evidence, then it
has a legitimate objective, namely, protection of public safety. It has also
been indicated in the application that the legal remedy provided for in the
Contested Norm is appropriate for reaching the legitimate objective. This
remedy, however, is not the one that would restrict the rights of a person at
the least degree possible. The second part of Section 13 of the Law “On
Procedures for Keeping in Custody” and Section 271 of the Criminal Procedure
Law permits a court or an investigating judge, when assessing each particular
situation and individuality of a defendant, to provide for individual
restrictions to the rights to meet relatives or other persons. The area of
regulation included in these norms is sufficient to reach the legitimate
objective and not to allow such adjustment of evidence and contact with
criminal environment. The Applicant indicates that not all persons that a
defendant could meet are witnesses or would help him or her to escape the
prison. Consequently, meeting with such persons can not infringe investigation
procedure. The Applicant emphasizes that each situation should be assessed
individually and “it is not right to guide oneself by maximum standards".
Moreover, the restriction is substantial and non-compliant with the objectives
in the cases when investigation is finished, especially after delivering of the
judgment of the first instance court.
It is also
mentioned in the constitutional claim that Section 24.4 of the Recommendation Rec
(2006) 2 of the Committee of Ministers of the Council of Europe to the Member
States on the European Prison Rules (hereinafter – European Prison Rules)
provides: the arrangements to visits shall be such as to allow prisoners to
maintain and develop family relationships in as normal manner as possible. It
follows from the Commentaries to the European Prison Rules that this visit
could last for 72 hours. By referring to the case-law of the European Court of
Human Rights, the Applicant indicates that in separate cases prohibition of
long visits could be justified; however, it does not mean that it should be
applied “automatically” to all prisoners.
It has been
indicated in the application that the Contested Norm is being applied also in
the cases when a person has confessed and an appeal or a cassation claim has
been submitted by a co-defendant, not by the defendant. In such a situation,
there is no reason to maintain that a defendant who has pleaded guilty would
infringe the interests of investigation. Likewise, the Applicant indicates that
in his case the co-defendant is also placed in prison, whilst his mother, wife
and daughter are neither witnesses nor defendants. The court has applied
imprisonment because it considered that the defendant, being in freedom, could
commit another criminal offence. There is no reason to suppose, however, that a
long visit with the mother, the wife and the daughter could cause a risk of
another criminal offence.
3. The
institution that passed the contested act, the Saeima holds that the constitutional claim is ungrounded
and the Contested Norm complies with the Satversme.
The Saeima indicates that separation from the family and stress caused by
such situation for detained persons, like for prisoners of places of deprivation
of liberty, is an integral characteristic feature of deprivation of liberty.
Consequently, the restrictions to meet one's relatives and friends are
reasonable and cannot be assessed as intervention into the private life of the detained persons and prisoners. It follows from the essence of imprisonment that
the life of respective persons is being restricted, namely, the rights of the detained persons to family life (including the rights to meet with family members)
are not the same as those of persons in freedom.
The objective of the Contested Norm
is to prevent unlawful involvement of a suspect or a defendant into a criminal
procedure by thus ensuring impartial investigation of a case and objective
decision-making process when putting the culprit to trial. Consequently, the
Contested Norm has a legitimate objective, i.e. to protect the constitutional
value established in Article 116 of the Satversme, namely, public safety.
The
Saeima indicates that custody is the most severe punishment of all security
measures and, unlike deprivation of liberty, is a short-term measure. The
objective of a long visit is to help a defendant to preserve relationships with
immediate family while being separated due to serving of a sentence. In the
case of imprisonment, there is no need to meet relatives due to the short-term
character of custody.
Moreover,
the difference between the detained persons
and prisoners regarding the issue of the rights to long visits is grounded
because, in the case of a convict, a fair regulation of criminal law and public
safety is already established, and it is not infringed by the fact that a
convicts meets a wider circle of persons for a longer period of time. On the
other hand, as to imprisoned persons, no adjudication of the court in a
criminal case is yet effective. Therefore, it is necessary to restrict
contacting of the detained persons
with family members and other persons for investigation purposes. This also
applies to persons who have been imprisoned in accordance with a decision of
the first instance or an appellate instance court. Under the Criminal Procedure
Law, these decisions can be appealed, which means that, before coming into
force of the judgment, the criminal procedure in the respective case has not
yet been completed and there is a possibility that the convict could influence
the judgment during these procedural stages.
The
Saeima indicates that, by providing a detained
person with the rights to meet other person at presence of a
representative of administration of the place of imprisonment, this would cause
risk that during the visit the detained
person could divulge out investigation secret or any other information
(including affecting of witnesses) to a party that is not involved in a
criminal procedure by thus infringing adjudication of the case in accordance
with a fair regulation of relations established by law through criminal law.
Moreover, when ensuring long visits,
it is not enough to change the regulation regarding the length of visit and
ensure presence of a representative of prison administration. In order to
ensure long visits, specially equipped premises and conditions are needed that,
on the one hand, would guarantee the regime of the prison and, on the other
one, would cause no inconvenience to prisoners and the members of his or her
family. Consequently, to ensure long visits, this would require transforming of
a place of custody, as well as certain time and financial resources. By
referring to the judgment of the European Court of Human Rights in the case Dickson
v. United Kingdom, the Saeima emphasizes that the international liabilities
of Latvia obligates the state to provide the detained persons with long visits with their family members. In
the abovementioned case, the European Court of Human Rights has indicated that
the European Convention for Protection of Human Rights and Fundamental Freedoms
(hereinafter – the Convention) does not deny the rights even to a convict to
have long visits.
When
commenting what has been established in the Commentaries to the European Prison
Rules, the Saeima explains that Section 24.2 of the European Prison Rules
provides for a possibility to restrict the rights of the detained persons to a private life in
order to secure the interests of the criminal procedure. Moreover, it has been
established in the Commentaries to the European Prison Rules that the prisoner
should be authorized to have long visits whenever circumstances allow. In
Latvia, this requirement has been implemented, namely, prisoners are guaranteed
the rights to a long visit.
The Saeima concludes that, taking
into account the aim of application of imprisonment, the restrictions enshrined
in the Contested Norm are proportionate because this is the only possibility to
prevent any threat to impartial investigation and fair adjudication of a
criminal case.
4. The
Ministry of Justice as an invited party holds
that the Contested Norm complies with Article 96 of the Satversme. The
argumentation provided by the Ministry of Justice and justifying such opinion
coincides with those of the Saeima.
The Ministry of Justice also emphasizes that, according to Section 272 of
the Criminal Procedure Law, detention may be applied only if there are
substantial concerns that a person will commit another criminal offence, hinder
an investigation and circumstances provided for by law present. An
investigating judge in a pre-trial period or a court during the proceedings,
before adoption of the final decision regarding application of detention, shall
hear out the opinion of the detained person, assess suggestions of the investigator or
state prosecutor, take into consideration the character of the criminal offence
and the reason for imprisonment. Consequently, a court or an investigating
judge shall assess, before applying imprisonment, whether application of
imprisonment is necessary due to objective considerations and whether it is
useful, as well as whether detention shall be applied only in the cases when a
person could hinder criminal procedure or commit another criminal offence.
The Ministry of Justice indicates that those persons who have been
applied detention by the first instance court or an appellate instance court
are also allowed to have long visits. A court, when applying detention at the
stage of proceedings, takes into consideration the same factors that are
considered by an investigating judge at a pre-trial stage. Application of detention
is not obligatory in the cases when a court has applied detention to a person.
Detention is applied only in the case if a person may threat criminal procedure
or commit another criminal offence or if a person has committed an especially
serious crime and circumstances provided for by law are present. Moreover,
under Item 5 of the first part of Section 551 and the second part of Section
560 of the Criminal Procedure Law, new evidence can be lodged in a appellate
instance court, as well as one can require interrogation of persons who have
not been interrogated at the first instance court. Consequently, it is possible
that the defendant may affect the criminal procedure up to the moment when the
case is transferred to examination thereof in an appellate instance court if
the first instance court has passed a verdict of guilty.
The Ministry of Justice also indicates that the convicts, except for
those placed in open prisons where no restrictions are established, have the
right to have three to eight long visits per year, namely, they are provided
the possibility to have one visits within the time period of a month and a half
up to that of one month. Therefore it is fair and proportionate to deny rights
to the detained persons to a
long visit taking into consideration the period of imprisonment, which cannot
exceed, respectively, 3, 9, 12 and 24 months. The Ministry of Justice notifies
that in Latvia, like in Estonia, only prisoners of places of deprivation of
liberty, and not detained persons
have the right to a long family visit.
5. The
Ombudsman of the Republic of Latvia (hereinafter – the Ombudsman) as an invited person holds that the
Contested Norm provides for non-proportionate restrictions of the rights
guaranteed in Article 96 of the Satversme. The Ombudsman emphasizes in
particular that it would be necessary to assess each situation individually
because this is not always right to suppose that visiting of a detained person with relatives could constitute threat to the investigation
process. As it can be seen in the practice, a person may be applied detention
even for three years. The Ombudsman draws attention to the case when a person
spent more than 30 months under arrest, and he was not provided the possibility
to meet his spouse alone.
6.
The Latvian Prison Administration provides information on the imprisoned persons. Out of 1892 persons
imprisoned before 1 January 2009, 451 persons were applied detention before
trial, 478 persons were prisoners whose criminal case investigation has been finished
and the case has been lodged to the first instance court, 548 persons were
waiting for examination of a judgment according to appellate procedure, 47
persons were waiting for examination of a judgment according to cassation
procedure, 246 persons were waiting for coming of a judgment into effect and
122 persons were detained persons of other categories.
The Latvian Prison Administration also indicates that all places of
detention are equipped with premises for long visits, except for Olaine Prison
and Vecumnieki Prison. Likewise the Administration provides information on the
number of such places in each prison. About 50 percent of the convicts use
these premises, and almost all the time the premises are occupied. It is, in
fact, impossible to create additional premises for long visits because of lack
of funding.
At present, none
of the normative acts provides how premises for short visits should be
equipped. Consequently, equipping of premises for visiting in different places
of imprisonment may differ. In all places of imprisonment, however, except for
Cçsis correctional facility for minors, the premise for short visits is divided
into two parts by means of multiplexer glass wall. One half of the room is
meant for the inmates, the other one - for visitors. Both part of the premise
have cabins with a telephone set, by means of which a prisoner can talk to the
visitor. In each prison premise for meetings, there are four to eight cabins.
The representative of the administration of the place of imprisonment supervises
the visits from another room that is also separated by means of a multiplexer
glass wall. From this room, one can see both, prisoners and visitors. Moreover,
the room of the representative of prison administration is equipped with a
device that permits auditing the conversation in each cabin without
interrupting the visit.
The
Constitutional Court holds:
7.
The
Constitutional Court concludes that a technical flaw has occurred in the
decision on initiation of a case. Namely, in the title of the case, the part of
Section 13 of the Law “On Procedures for Keeping in Custody”, wherein Item 6 is
included, has not been indicated, and neither the kind of prison has been
specified.
Consequently, the
title should have the following
wording: “On Compliance of the Words
“One Hour Long” and “at Presence of a Representative of an Investigation Prison
Administration” of Item 6 of the first part of Section 13 of the Law “On
Procedures for Keeping in Custody” with Article 96 of the Satversme
(Constitution) of the Republic of Latvia”.
8. Article 96 of the Satversme
provides: “Everyone has the right to inviolability of his or her private life,
home and correspondence.”
The Applicant has
indicated in the constitutional claim that the Contested Norm restricts the
rights to private life and family life established in this Article in a
non-proportionate manner. Article 96 of the Satversme expressis verbis provides only for the rights to inviolability of
private life.
On the other
hand, Article 110 of the Satversme provides that the State shall protect and
support marriage, the family, the rights of parents and the rights of the
child. Consequently, Article 110 of the Satversme guarantees the rights to
inviolability of family life.
This does not mean,
however, that these rights have not been included in Article 96 of the
Satversme. For instance, the freedom of trade unions is established in Article
108 of the Satversme, whilst it also follows from the right to form and join
associations established in Article 102 of the Satversme. Likewise, the right
to inviolability of private right included in Article 96 of the Satversme
includes also protection of dignity and honour (see: Judgment of 26 January 2005 by the Constitutional Court in the
case No. 2004–17–01, Para 10), however the duty of the State to protect
dignity and honour is also established in the first sentence of Article 95 of
the Satversme. Consequently, one and the same rights can be protected by
several articles of the Satversme.
It is necessary to take into consideration,
that the notion “private life” is often used in a broader sense by including therein
the rights to respect for family life, home and correspondence. Secondly, it
has been recognized in the law that the rights laid down cannot be clearly
distinguished from each other. They supplement each other and overlap (see: Dijk
P., Hoof G.J.H. Theory and Practice of the European Convention on Human Rights.
Hague, London, Boston: Kluwer Law International, 1998,
p.489; Kilkelly U. The right to respect for private and family life. A guide to
the implementation of Article 8 of the European Convention on Human Rights.
Council of Europe, 2001, p.10 – 11; Reid K. A Practitioner’s Guide to the European
Convention on Human Rights. London: Sweet&Maxwell, 2008, p.481).
Consequently,
the rights to inviolability of private life guaranteed in Article 96 of the
Satversme include also the rights to inviolability of family life.
9. When explaining the rights to private life guaranteed in Article 96 of
the Satversme, the Constitutional Court has already stated that these rights
include different aspects. It protects the physical and moral integrity, honour
and reputation, use of person’s name and identity, personal data of a person
and concerns other aspects, connected with private life. The right to private
life means that the individual has the right to its private home, the right to
live as he likes, in accordance with his nature and wish to develop and improve
the personality, tolerating minimum interference of the state or other persons.
The right includes the right of an individual to be different, retain and
develop virtues and abilities, which distinguish him from other persons and
individualizes him (see: Judgment of 26
January 2005 by the Constitutional Court in the case No. 2004–17–01, Para 10).
10. When establishing the content of the basic rights provided for in the
Satversme, it is necessary to take into account the international liabilities
of Latvia in the field of human rights. International norms of human rights and
the practice of their application serve as means of interpretation on the level
of constitutional law to determine the contents and scope of fundamental rights
and the principle of the law-governed state, as far as it does not lead to
decrease or limitation of fundamental rights included in the Satversme. The
duty of the State is to take into consideration the international liabilities
in the field of human rights that follow from 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. From this Article it can be seen that the aim of the legislator
has not been to oppose norms of human rights, included in the Satversme to the
international ones (see: Judgment of 9
May 2008 by the Constitutional Court in the case No. 2007-24-01, Para 11).
The rights to inviolability of private and
family life are guaranteed in Article 8 of the Convention. The European Court
of Human Rights has established that respect for private life must also
comprise to a certain degree the right to establish and develop relations with
other human beings (see: Judgment of the
European Court of Human Rights in the cases: Niemietz v. Germany,
judgment of 16 December 1992, Series A no. 251-B, para 29; Perry v. the United Kingdom, judgment of 17 July
2003, Reports of
Judgments and Decisions 2003-IX, para 36;
Biriuk v. Lithuania, judgment of
25 November 2008, application nr. 23373/03, para 34). On the other hand, the right to
family life means the right to maintain relations with family members. The
European Court of Human Rights has reiterated that a substantial element of
family life is the possibility of children and their parents to maintain
regular contacts with each other (see: Judgment of the European Court of
Human Rights in the cases: Olsson v. Sweden
(no. 1), judgment of 24 March 1988, Series A no. 130,
para 59; Berrehab v. the Netherlands, judgment of
21 June 1988, Series A no. 138,
para 23; X v.
Croatia, judgment of 17 July 2008,
application no.
11223/04, para 3]. Furthermore, although the object of Article
8 is essentially that of protecting the individual against arbitrary
interference by the public authorities, it does not merely compel the State to
abstain from such interference: in addition to this primarily negative
undertaking, there may be positive obligations inherent in effective respect
for private or family life (see:
Judgment of the European Court of Human Rights in the cases: Guerra and others v. Italy, judgment of
19 February 1998, Reports 1998-I,
para 58; Von Hannover v. Germany, judgment of
24 June 2004, Reports
of Judgments and Decisions 2004-VI, para 57;
Biriuk v. Lithuania, judgment of
25 November 2008, application no. 23373/03,
para 35).
The duty of the
State to help a person to maintain relations with close persons during custody
follows from the rights to private and family life (see: Judgment of the
European Court of Human Rights in the cases: Aliev
v. Ukraine, judgment of 29 April 2003, application no. 41220/98, para 187; Moiseyev v. Russia, judgment of 9 October 2008,
application no. 62936/00, para 246 and
Reports of the European Committee for the Prevention of Torture: Report to the
Latvian Government on the visit to Latvia carried out by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) from 24 January to 3 February 1999, para 178.
http://www.cpt.coe.int/documents/lva/2001-27-inf-eng.htm; Report to the
Government of “the former Yugoslav Republic of Macedonia” on the visit
to "the former Yugoslav Republic of Macedonia" carried out by
the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) from 15 to 26 May 2006, para 92. http://www.cpt.coe.int/documents/mkd/2008-05-inf-eng.htm]. Since the possibilities of a person, due to custody,
to maintain contacts and relations with other persons are restricted and thus
an imprisoned person may get alienated from his or her family members, the
State should prevent these negative consequences of the place of imprisonment
as much as possible. Moreover, it is necessary to take into consideration the
fact that the guilt of the detained person
might have not yet been established.
Consequently, these persons can be
subjected to such restrictions of the basic rights that are absolutely necessary
in order to ensure reaching of the objective of imprisonment and guarantee
security in the place of imprisonment.
Consequently, it can be concluded
that the right to private life guaranteed in Article 96 of the Satversme
comprise the rights to form and maintain relations with family members and
other human beings. Moreover, not only the duty of the State to refrain from
intervention into private life, but also the duty of the State to carry out
necessary activities to secure these rights follows from the abovementioned
right.
11. In order to establish whether the Contested
Norm complies with Article 96 of the Satversme, first of all it is necessary to
assess whether it restricts the rights guaranteed in this Article.
11.1. The Contested
Norm provides that a visit of a detained
person with his relatives and other person may be only one hour long and
it would take place at presence of a representative of prison administration.
Consequently, this norm regulates the rights of persons to meet with other persons
who are deprived of liberty.
11.2. The Saeima and
the Ministry of Justice indicates that separation of imprisoned persons from
their family and the stress caused by this situation is integral characteristic feature of deprivation of liberty. It follows
from the essence of imprisonment that the life of respective persons is being
restricted, namely, the rights of the detained persons to
family life (including the rights to meet with family members) are not the same
as those of persons in freedom.
The
European Court of Human Rights has recognized that, when establishing maximum
number and the length of visits, as well as providing for supervision of the visits,
the right of a person to private and family life are being restricted (see, e.g., Judgments of the European Court
of Human Rights in the cases: Moiseyev
v. Russia, judgment of 9 October
2008, application no. 62936/00, para 246;
Ciorap v. Moldova, judgment of 19 June
2007, application no.12066/02, para 111;
Kucera v. Slovakia, judgment of
17 July 2007, application no. 4866/98, para 127 – 128).
Consequently,
imprisoned person do not enjoy the right to private life at the same extent as
person in freedom.
Consequently,
the regulation established in the Contested Norm restricts the right to inviolability
of private life as established in Article 96 of the Satversme.
12. The rights guaranteed in Article 96
of the Satversme are not absolute. Article 116 of the Satversme provides that
these rights may be subject to restrictions in circumstances provided for by
law, if it has a legitimate objective and is proportionate (see: Judgment of 26 January 2006 by the
Constitutional Court in the case No. 2004–17–01,
Para 11).
13. In order to permit such restriction, it must be established by law.
The Contested Norm is
included into the Law "On Procedures for Keeping in Custody". Both,
the Applicant and the Saeima admit that the restriction has been established by
law.
Consequently, in the
case under consideration there is no dispute whether the restriction has been
established by law.
14. Restriction of basic rights can be justified only in the case if it
serves for a particular legitimate objective – to protect the constitutional
values of other rank or other important interests, for protection of which the
restriction is indispensable (see:
Judgment of 16 May 2007 by the Constitutional Court in the case No. 2006-42-01, Para 10). Therefore it is necessary to investigate
whether the Contested Norm has been adopted with a view to reach a legitimate
objective.
It has been indicated in the reply of the Saeima that the
objective of the Contested Norm is prevent unlawful intervention of a person
into criminal procedure by thus ensuring exhaustive examination of the case and
adoption of an equitable decision. Likewise, by means of this norm, the State
is trying to prevent a detained person
from committing other criminal offences, escaping the prison or affect
witnesses. Consequently, the Contested Norm protects public safety. It is also
admitted by the Applicant.
The
Constitutional Court agrees with the Saeima and the Applicant and admits that
the restriction has a legitimate objective - protection of public safety.
15. The principle of proportionality provides that
if the public power restricts rights and legal interests of a person, one has
to observe a reasonable balance between the interests of a person and the State
of the society. In order to assess, whether the legal provision passed by the
legislator complies with the principle of proportionality, one has to
investigate:
first,
whether the means utilized by the legislator are suitable for achieving the
legitimate objective;
second,
whether such action is indispensable, i.e., whether the objective cannot be
reached by other means that restrict the rights and legal interests of a person
at a lesser extent;
third,
whether the action of the legislator is proportionate or commensurate, i.e.,
whether the benefit gained by the society is greater than the losses caused to
the rights and legal interests of a person.
If,
when assessing the legal provision, it is acknowledged that it is in conflict
with at least one of the above criteria, then it is in conflict with the
principle of proportionality and is unlawful (see: Judgment of 16 May 2007 by the Constitutional Court in the case
No. 2006-42-01, Para 11).
16. It is possible to agree with the opinion of the Ombudsman and the
Applicant that, when requiring presence of a representative of a prison
administration at a visit and by limiting the length of the visits, the
possibility to affect witnesses, escape the prison or prevent contacts with
criminal world is reduced. Consequently, the restrictions established in the
Contested Norm are appropriate for reaching the legitimate objective.
17. It has been indicated in the constitutional claim that the legitimate
objective can also be reached by other means that would restrict the rights of
a person at a lesser extent. There is no reason to suppose that visit of a detained person with any person could
constitute threat to the interests of investigation and public safety. An
investigating judge or a court, when assessing a particular situation and the
convict, may provide for security measures to be applied during the visits or
even prohibit visiting certain persons. Thus there would be no need to
establish whether the visit can last one hour and only at presence of a
representative of prison administration. According to the Applicant, when
assessing each particular situation, it would be possible to restrict the rights
of persons at a lesser extent and to ensure the right of detained persons to long visits.
17.1. The words “one hour long"
provided in Item 6 of the first part of Article 13 of the Law “On Procedures
for Keeping in Custody” deny the right of a detained person to long visits.
As
the Applicant has indicated, Section 24.4 of the European Prison Rules provides
that the arrangements for visits shall be such as to allow prisoners to
maintain and develop family relationships in as normal a manner as possible. In
the Commentary to the European Prison Rules it is indicated when explaining
this Section of the Law that the visits are of particular significance not only
for prisoners but also for their families. It is important that where possible
intimate family visits should extent over a long period, for example, 72 hours,
as is the case in many eastern European Countries” [Commentary
to Recommendation REC (2006) 2 of the Committee of Ministers to Member States on the
European Prison Rules, p.11. http://www.coe.int/t/e/legal_affairs/legal_cooperation/prisons_and_alternatives/legal_instruments/E%20commentary%20to%20the%20EPR.pdf].
The
above quoted norm, however, cannot serve as the basis for a conclusion that a
duty of the State to ensure long visits with all prisoners follow from the
right of a person to private and family life. Not all European States guarantee
the right to long visits to all these persons (see: Judgment of the European Court of Human Rights in the case Dickson v. the
United Kingdom, judgment of 4 December 2007, application no. 44362/04, para 81).
Also in the states where such rights are established they mainly apply to
convicts. For instance, in Estonia and Lithuania the right to long visit are
provided only for convicts (see: Imprisonment Act of the Republic
of Estonia, Article 25, Art. 87
and Art. 94; http://www.legaltext.ee/text/en/X30079K5.htm; Lietuvos Respublikos Bausmiu
vykdymo kodeksas, 94 straipsnis, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=27850094).
The
European Court of Human Rights has approved that the number of States that
ensure prisoners the right to long visits is increasing. However, at the same
time the European Court of Human Rights has indicated that it does not hold
that the duty to ensure the possibilities to arrange long visits would follow from the right to
private and family life (see: Judgment of
the European Court of Human Rights in the cases: Aliev v. Ukraine, judgment of
23 April 2003, application no. 41220/98,
para 188; Dickson v. the United Kingdom, judgment of
4 December 2007, application no. 44362/04,
para 81). Moreover, the
European Court of Human Rights has stick to the same opinion after adoption of
the European Prison Rules and the Commentaries thereto.
Consequently,
no duty of the State to ensure the possibilities for detained persons to have long visits follows from the rights to
private and family life as established in the Satversme.
Consequently,
the words “one hour long” of Item 6 of the first part of Section of the Law “On
Procedures for Keeping in Custody” comply with the Satversme insofar as it
denies the rights of prisoners to long visits.
17.2. It must be concluded, however,
that the regulation regarding the length of a visit established in the Law does
not only deny the right of a prisoner to have long visits but it also limits
the length of the visit. A detained person
is deprived of the right, for instance, to have two or three hour long visit.
Moreover, such restriction is being automatically applied to all detained persons.
The
European Court of Human Rights has recognized that strict regulation regarding
frequency and length of visits that does not provide for any possibility to
assess a particular situation infringes the rights to private and family life.
For instance, the European Court of Human Rights has recognized in the case Moiseyev
v. Russia that Article 8 of the Convention has been breached by providing
in the Law that a detained person
should be allowed to have no more than two short visits of family and other
persons per month and these visits may not last longer than three hours (see: Judgment of the European Court of Human
Rights in the case Moiseyev v. Russia,
judgment of 9 October 2008, application no. 62936/00, paras 252 – 256).
The
Constitutional Court admits that in separate cases it may be necessary to
restrict the length of a visit in order to provide for timely control of
events. However, these are only exceptional cases when, for instance, relatives
of a detained person are
related with the criminal world or are witnesses at the criminal procedure.
Likewise, this restriction may be justified by the amount of resources at the
disposal of the place of imprisonment. But not always these conditions are
present. Moreover, there can be a situation when a one hour long visit does not
ensure an appropriate possibility to enjoy the rights to private life. Such a
situation can emerge in the case if a detained
person is placed in a prison located far from the living place of their
relatives, which means that they cannot meet the prisoner each month. Likewise,
it is necessary to take into account the period of imprisonment. Therefore the
rights of a person would be restricted at a lesser extent by a regulation that
would allow deciding on the length of a visit after having assessed a
particular situation.
Item
6 of the first part of Section 13 of the Law “On Procedures for Keeping in
Custody” provides for a flexible regulation regarding frequency of visits,
namely, it is established that one hour long meeting shall be provided not less
frequent than one per month. Consequently, this regulation ensures sufficient
protection of prisoners because it provides for the minimum number of visits.
At the same time, it permits assessing individual circumstances of a person
(for instance, the term that a person has spent in custody etc.), stage of
criminal procedure and the control necessary for the protection of interests of
investigation, as well as resources that are at disposal of the place of
imprisonment and provide for more than one visit per month under certain
circumstances.
As
to the length of a visit, it is possible to provide that a detained person must be ensured with
at least one hour long visit. Thus a detained
person would be provided with minimum guarantees by at the same time
allowing ensuring longer visits when possible. Maybe there are other solutions
how to make the regulation regarding the length of a visit more flexible by
ensuring a possibility to asses each particular situation and individual
circumstances. In the judgment, the Constitutional Court must not enumerate all
possible measures that would restrict the rights of a person at a lesser
extent. Having established that there exists at least one more lenient remedy,
it is possible to recognize that the Contested Norm restricts the basic rights
of a person in a non-proportionate manner.
Consequently,
the words "one hour long" of Item 6 of the first part of Section 13
of the Law "On Procedures for Keeping in Custody" restrict the right
of a person to private live at a non-proportionate manner and thus does not
comply with Article 96 of the Satversme.
17.3. Item 6 of the first part of Section 13 of the Law “On Procedures for
Keeping in Custody” provides that a prisoner shall have the right to visit with
relatives or other persons not more often than one per month and at presence of
a representative of prison administration.
When explaining how the
presence of a representative of prison administration would be ensured, the
Latvian Prison Administration indicates that in prison premises for short
visits prisoners are separated from visitors by means of a glass wall.
Conversation between a prisoner and a visitor takes places via telephone.
Consequently, no physical contact is possible between a prisoner and a visitor.
There are four to eight cabins in one room. The representative of the prison
administration is provided with a separate room, from which he can see both,
prisoners and visitors. The room of the representative of the prison
administration is equipped with a device that permits listening to conversation
in any cabin.
17.3.1. The European Committee for the Prevention of Torture has indicated that
physical separation of a prisoner and a visitor in certain cases may be
necessary due to consideration of security. However, such measures can only be
applied after having established certain infringement of security rather that
automatically to all prisoners (see, e.g.: Judgment of the European Court of
Human Rights in the cases: Ciorap v. Moldova,
judgment of 19 June 2007, application no. 12066/02, para 117-118;
Moiseyev v. Russia, judgment
of 9 October 2008, application no. 62936/00, para 258
and the Report to the Latvian Government on the visit to Latvia carried out by
the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) from 24 January to 3 February 1999,
para 182. http://www.cpt.coe.int/documents/lva/2001-27-inf-eng.ht].
The
second part of Section 13 of the Law “On Procedures for Keeping in Custody”
provides that a court or an investigating judge may restrict the rights
mentioned in Item 6 of the first part of this Section, namely, the right to
have a visit. Section 271 of the Criminal Procedure Law also regulates the
issue regarding restriction of the rights of a prisoner. The second part of
this Section provides that application of detention shall be the basis for a
restriction on the rights of a person, and shall allow the holding of the
persons in an investigation prison or in specially equipped police premises, a
restriction on the meetings and contacts of the detained person, except for
meetings with a defence counsel, as well as a control on the correspondence and
conversation of the detained person. On the other hand, the third part of Section
271 of the Criminal Procedure Law provides that an investigating judge shall
determine the amount of restrictions individually for each detained person,
within the boundaries specified by law, assessing the proposals of an
investigation or public prosecutor, hearing the views of the detained person,
as well as taking into account the nature of the criminal offence, and the
reason for detention. Consequently, it has been provided by law that a court or
an investigating judge may restrict the range of the person that a detained
person is allowed to meet and to provide for security measures, including
separation of persons by means of a glass wall. This shall be regarded as a
less restrictive measure if compared to automatic physical separation of
prisoners and visitors. Taking into account the aforesaid, the fact that in the
prison premise for short meetings a prisoner is separated from visitors by
means of a glass wall shall be regarding as a non-proportionate restriction of
the right to private life.
Although
this non-proportionate restriction exists, it does not follow from the
Contested Norm. The Contested Norm only provides that a meeting may take place
only at presence of a representative of prison administration but this does not
mean that a prisoner must be separated from a visitor by means of a glass wall.
The Norm can also be implemented by ensuring actual presence of a
representative of prison administration in the room without dividing the
premise into separate rooms by means of a glass wall. Consequently, there is no
reason to recognize the Contested Norm as non-compliant with the Satversme
because of the planning of prison premise for short visits.
17.3.2. Under the Contested Norm,
during the entire period of imprisonment meetings with relatives of each
detained person is subject to supervision and audited by a representative of
prison administration. All prisoners disregarding the fact whom they are
meeting with are subject to such a procedure. Consequently, it shall be
regarded that this regulation restricts the right of persons to private life in
a non-proportionate manner.
Moreover,
as it was indicated by the Ombudsman, such detention may last even for three
years. It is necessary to take into consideration the fact that in Latvia a
person shall be regarded as a detained person until â verdict of guilty comes
into effect. Consequently, at the time when an appeal or cassation claim is
being reviewed, a person shall be regarded as a detained person.
There
is no doubt that a situation may emerge when it is necessary to supervise and
audit a visit due to the interests of investigation and security
considerations. However, Section 271 of the Criminal Procedure Law allows a
court or an investigating judge assessing each particular case individually and
providing for the necessary security measures that should be applied to a
visit. Consequently, a court or an investigating judge, when assessing several
conditions, including the term spend in detention, stage of a criminal
procedure and other circumstances, could decide on the necessity to supervise
and audit a person during the visit and, if necessary, whether to carry out
visual supervision only, or auditing, too. Such individual assessment of each
particular case shall be regarded as a less restrictive measure.
Consequently,
the words “at presence of a representative of an investigation prison
administration" of Item 6 of the first part of Section 13 of the Law “On
Procedures for Keeping in Custody”, insofar as they do not provide for
individual assessment of circumstances, restricts the rights guaranteed in
Article 96 of the Satversme in a non-proportionate manner.
18. According to the third part of Article 32 of the Constitutional
Court Law, Any legal norm (act) which the Constitutional Court has determined
as incompatible with the legal norm of higher force shall be considered invalid
as of the date of publishing
the judgment of the Constitutional Court, unless the Constitutional Court has
ruled otherwise.
When providing for the date when contested
norms lose their force, the Constitutional Court shall take into consideration
the fact that the legislator needs time to introduce necessary amendments into
normative acts. Likewise, the Constitutional Court shall take into account the
fact that it requires time for a court and investigating judge to apply the
restrictions provided for by law for each detained person.
The Constitutional Court
Based on articles 30 - 32 of the Constitutional Court Law
h o l d s :
the words “one hour long” of Item 6 of the first part of
Section 13 of the Law "On Procedures for Keeping in Custody” insofar as
they provide for the maximum time of short visits and the words “at presence of
a representative of an investigation prison administration” of Item 6 of the
first part of Section 13 of the same Law insofar as they do not provide for
individual assessment of a particular case, do not comply with Article 96 of
the Satversme of the Republic of Latvia and shall be invalid as from 1 December
2009.
The Judgment is final
and not subject to appeal.
The Judgment comes into
force as on the date of publishing it.
The Presiding Judge G. Kűtris