JUDGMENT
On Behalf of the
in Case No 2008-48-01
The Constitutional
Court of the Republic of Latvia, composed of the Chairman of the Court hearing Gunārs Kūtris, Justices
Kaspars Balodis, Aija Branta, Juris
Jelāgins, Kristīne
Krūma and Viktors Skudra,
having regard to the application of Roberts Mutulis,
according to Article 85 of the Satversme (Constitution) of the
on 8 September 2009 in writing examined the case
“On Compliance of the Second Part of Section 74 of the
Latvian Penalty Execution Code with Article 111 of the Satversme (Constitution)
of the
The Facts
1. On 23 December 1970, the Supreme Council of the Latvian SSR (Latvijas PSR Augstākā
padome) adopted the Corrective Labour Code. The Decision “On Application of the Latvian
SSR Legislative Acts” of the Supreme Council of the
The
Second part of Section 74 of the Code in the present wording provides the
following: “Convicted persons who are held in punishment isolation cells shall
be prohibited from having walks” (hereinafter – the Contested Norm).
On
30 April 2009, the Saeima (Parliament) of the
2. The applicant Roberts Mutulis (hereinafter
– the Applicant) holds that the Contested Norm does not comply with Article 111
of the Satversme of the
The
Applicant indicates that daily walks of at least one hour should be ensured for
all prisoners, including convicted persons who are held in punishment isolation
cells because long staying in an isolation cell without the possibility of
having a walk constitutes threat to health. Daylight and fresh air are the
basic elements of person’s life, whilst lack of it may cause different
illnesses. To punish a convicted person for violations, it is enough to apply
other restrictions established in Section 74 of the Code. The European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (hereinafter – the Committee for the Prevention
of Torture) has indicated that all imprisoned persons should be
permitted to have daily walks of at least one hour.
The
Applicant holds that the right established in Article 111 of the Satversme is
absolute and it cannot be restricted. To observe the freedoms of a person in
custody, the State should undertake additional care for health of such person
because the possibilities of the person to take care of himself
or herself are limited.
3. The institution that
passed the contested act – the Saeima, on 5
February 2009 submitted a letter “On the Reply in Case No 2008-48-01” addressed
to the
In the letter of 7 May 2009,
the Saeima indicates that the draft law “Amendments to the Latvian Penalty
Execution Code” (reg. Nr. 1005/Lp9), which also included the draft law
No. 1099/Lp9 was approved in the final reading at the meeting of the
Saeima of 30 April 2009. The new wording of the Contested Norm provides that
the convicted persons who are held in punishment isolation cells shall be
permitted daily walks of one hour. The amendments would come into force on 1 January
2011 because before that date it is necessary to substantially improve the
present technical and organizational possibilities of places of imprisonment to
ensure such walks, and this requires financial resources. Since the Contested
norm has been amended within the frameworks of legislative procedure, the
Saeima asks to assess whether it is useful to continue proceedings in the case
under review.
4. The summoned person – the Ombudsman of the
According to the Ombudsman,
the right to health shall be understood as the right to such conditions,
services and goods that are indispensible to reach the best possible level of
health protection. Not only the duty of the State to carry out, in certain
cases and at a certain level, measures that are closely related with economic
possibilities of the State to take measures to protect people’s health, but
also the duty of the State to restrain from such actions that restrict the
possibilities of a person to independently take care of his or her health
follow from the words “the State shall protect human health” enshrined in
Article 111 of the Satversme.
The Ombudsman holds that in
the case under consideration the right to health shall be considered in
conjunction with the prohibition of inhuman treatment established in Article 95
of the Satversme, Article 5 of the UN Universal Declaration of Human Rights,
Article 7 of the UN International Pact on Economic, Social and Cultural Rights
and Article 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter – the European Convention on Human Rights).
By referring to the judgment of the European Court of Human Rights in the case Poltoratsky v. Ukraine, the Ombudsman
indicates that 24 hour stay in an isolation cell without fresh air and
daylight, as well as restricted area per one prisoner and lack of possibility
to have a walk in fresh air shall be regarded as an inhuman treatment and
infringement of Article 3 of the European Convention on Human Rights.
The Committee for the
Prevention of Torture founded by the Council of Europe already during its first
visit to
The Ombudsman concludes that
the rights guaranteed in Article 111 in conjunction with Article 95 of the
Satversme are being infringed if the convicted persons who are held in
punishment isolation cells are not ensured with daily walks of one hour. The
State cannot substantiate it by lack of financial resources or other resources
if it does not ensure the exercise of the rights that include elements of
prohibition of inhuman treatment.
5. The summoned person – the State agency „Public Health Agency” (hereinafter
– the Public Health Agency) – in its letter draws attention to a possibility of
causing harm to health for a person placed in premises without natural light
and air circulation for a long time. As the air quality in the premises
deteriorates, a person might feel uncomfortably and his or her working capacity
decreases; a person starts feeling tired, he or she has headache, disorders on
action of the heart, as well as the risk to get respiratory disease and
infection increases. When inhaling dirty air, the disease resistance of human
body deteriorates, immunity becomes weaker and the possibility to catch
infections increases.
6. The summoned person – the Ministry of Justice – has provided an answer to the following
question: why the date of coming into force of the new wording of the second
part of Section 74 of the Code is 1 January 2011.
On 28 January 2009, the
Minister of Justice has submitted a proposition of the third reading of the
draft law “Amendments to the Latvian Penalty Execution Code” (reg. No. 1005/Lp9)
by suggesting the following wording of the second part of Section 74 of the
Code: “Convicted persons who are held in punishment isolation cells shall be
permitted walks of one hour once per two days.” However, the Latvian Prison
Administration objected to this suggestion. On 18 March 2009, the above
mentioned suggestion was reviewed at the meeting of the Saeima Defence, Internal
Affairs and Corruption Prevention Committee and the Director of the Latvian
Prison Administration indicated that the suggestion cannot be implemented
because prisons do not have enough walking grounds, whilst organization of new
walking grounds requires considerable resources of State budget.
Representatives of Ombudsman have indicated during the meeting that convicted
persons who are held in punishment isolation cells should be ensured with daily
walks of one hour.
Taking into account the
opinions expressed at the meeting of 18 March 2009 and the letter No
9/6-2-n/113-(9/09) of 18 March 2009 of the Saeima Committee addressed to the
Minster of Justice, the Minister has revoked his suggestion regarding
amendments to the second part of Section 74 of the Code. The Minister, however,
has submitted another suggestion – to provide the following wording of the
second part of Section 74 of the Code: “Convicted persons who are held in
punishment isolation cells shall be permitted daily walks of one hour”, as well
as the proposed to supplement the Transitional Provisions with Para 10 with the
following wording: “Amendments to the second part of Section 74 of the Code
shall come into force on 1 January 2011.”
The transitional period up to
1 January 2011 has been established with a view to accumulate budged resources
to ensure possibilities of organizing such walks and for the Latvian Prison
Administration to be able to carry out necessary organizational measures.
7. The Latvian Prison
Administration has provided the
The Latvian Prison
Administration draws attention to particular measures that should be
implemented to ensure walks for convicted person. For instance, the Riga
Central Prison, the Jelgava Prison, the Jēkabpils Prison and the Šķirotava
Prison need their walking grounds to be repaired. However, the Brasa Prison needs two more positions of supervisor to
ensure walks for prisoners. In the Iļģuciems
Prison, the punishment isolation cell is never use because it is in bad
technical condition, whilst the Daugavgrīva
Prison five walking grounds are never used due to their bad condition.
The
8. The new wording of the second part of Section 74
of the Code, the term of coming into force of these amendments being 1 January
2011, provides the following: “Convicted persons who are held in punishment
isolation cells shall be permitted daily walks of one hour.” The Saeima asks
assessing whether it is useful to continue proceedings in the case under review
provided that the Contested Norm has been amended during the legislative
procedure. Thus the legal question indicated in the application is resolved.
8.1. Item 2 of the first part of Article 29 of the Constitutional
Court Law provides that proceedings in the case may be closed before the
judgment is announced by a decision of the Constitutional Court if the disputed
legal norm (act) is no longer in effect. The abovementioned provision has been
established in order to ensure economy of the Constitutional Court process and
that the Constitutional Court would not render judgment in cases where a
dispute no more exists (see: Judgment of
12 February 2008 by the Constitutional Court in the case No. 2007-15-01, Para 4).
The Constitutional Court has concluded that the application field of Item 2 of
the first part of Article 29 of the Constitutional Court Law is broader than
its actual wording. The above mentioned norm can also be applied in cases when
at the moment of decision-taking it has not become void factually, whilst the
institution that has passed the contested act has prevented dispute, i.e. it
has provide that the norm would become void (see: Decision of 23 May 2005 on
termination of proceedings of the Constitutional Court in the case No. 2005-01-01,
Para 7 and decision of 5 November 2008 on termination of proceedings of the
Constitutional Court in the case No. 2008-06-01, Para 7.2).
The Saeima has amended the
Contested Norm with a view to solve the present dispute. However, in such cases
the first part of Article 29 of the Constitutional Court Law provides for the
right of the Constitutional Court to terminate proceedings but not the duty to
do so (see: Decision of 12 June 2007 on
termination of proceedings of the Constitutional Court in the case No. 2007-06-03, Para 11). Consequently, the Constitutional Court
has to assess whether there exist any considerations that require continuation
of proceedings.
8.2. In the case under review, it is important that the Contested Norm
becomes void on 1 January 2011 when, according to Para 10 of the Transitional
Provisions of the Code, the new wording of the second part of Article 74 of the
Code would take effect.
Based on the European Convention for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (hereinafter – the
Convention for the Prevention of Torture), there was the Committee for the
Prevention of Corruption established. According to Article 1 of the Convention
for the Prevention of Torture, the Committee shall, by means of visits, examine the
treatment of persons deprived of their liberty with a view to strengthening, if
necessary, the protection of such persons from torture and from inhuman or
degrading treatment or punishment. The Convention on the Prevention of Torture
became binding to Latvia as from 1 June 1998.
It was indicated in the Second
General Report on the activities of the Committee for the Prevention of Torture
from 1 January to 31 December 1991 that all imprisoned persons without
exception should be permitted daily physical activities in fresh air, and this
is regarded as the minimum requirement (see:
case materials, pp. 27 and 29,
http://www.cpt.coe.int/en/annual/rep-02.htm).
From 5 May to 12 May 2004, the
Committee for the Prevention of Torture visited Latvia for the third time, and
on 13 March 2008 it published a report on this visit addressed to the Latvian
government. In this report, there is concern expressed regarding the fact that
Latvian public institutions have not implemented many instructions given after
the visit of 1999 and again after that of 2002. According to the Committee for
the Prevention of Torture, adult prisoners held in punishment isolation cells are
still denied the possibility to have physical activities in fresh air. The
following opinion of Latvian public institutions is mentioned in the report: it
is not possible to ensure walks in fresh air for those prisoners who are held
in punishment isolation cells due to the fact that walking grounds are located
outside the premises of the place of imprisonment; it means that it is
necessary to build additional walking grounds, which depends on resources
available. When commenting the situation, the Committee for the Prevention of
Torture indicated that the above mentioned reasons for non-fulfilment of
instructions by the Latvian public institutions are ungrounded. It requested
Latvia to take immediate measures to implement all recommendations (see: case materials, Vol. 33 – 36, http://www.cpt.coe.int/documents/lva/2008-15-inf-eng.htm).
8.3. It can be concluded from the aforesaid that the
Latvian government and the legislator knew for more than ten years already that
convicted persons who are held in punishment isolation cells should be ensured
with daily walks of at least one hour in fresh air in order to prevent breach
of the torture prohibition included in Article 3 of the European Convention on
Human Rights. As it follows from the report, the Committee for the Prevention
of Torture has drawn attention to this problem several times already. Latvian
public institutions, however, have not reacted to these reprimands.
The Constitutional Court holds
that the Latvian government and the legislator had had a sufficient time to
implement international liabilities of the State and ensure convicted persons
that are held in punishment isolation cells with daily walks of at least one
hour. Taking into account international liabilities of the Republic of Latvia
and conclusions made by the Committee for the Prevention of Torture, as well as
the fact that according to the amendments to the Code adopted by the Saeima the
Contested Norm would become void as on 1 January 2011, the Constitutional Court
holds that it is necessary to assess compliance of the Contested Norm with
Article 111 of the Satversme. In case if the Constitutional Court concludes
that the Contested Norm does not comply with the Satversme, the continuous
breach of the fundamental rights of persons will not be admissible before
coming into force of the new wording of the second part of Section 74 of the
Code.
Consequently, it is necessary
to continue proceedings in the case under review.
9. Article 111 of the Satversme provides: „The State shall protect human health and guarantee a
basic level of medical assistance for everyone.”
The right to health shall be
regarded as social right. As it has already been concluded by the
Constitutional Court, when interpreting the norms, incorporated into Article
111 as read together with international liabilities and the practice of their
application, the obligation of the State to undertake measures, in certain
cases and at a certain extent, to protect health of the people follows from
Article 111 of the Satversme (see:
Judgment of 22 October 2002 by the Constitutional Court in the case No. 2002-04-03, Para 1 of the Concluding Part).
Person’s
health is influenced by different factors, including air quality because air is
indispensible for maintaining vital functions of body. According to the Public
Heath Agency, as the air quality in the premises deteriorates, a person might
feel uncomfortably and his or her working capacity decreases; a person starts
feeling tired, he or she has headache, disorders on action of the heart, as
well as the risk to get respiratory disease and infection increases. Walks in
fresh air ensure the benevolent influence of sunlight on the body, it makes a
person feel better, strengthens immunity and ensures protection against
infection diseases (see: case materials,
pp. 89, 90).
According
to Item 6 of the first part of Section 70 of the Penalty Execution Code,
convicted persons can be placed in punishment isolation cell for a term up to
15 days. According to the Ombudsman, a convicted person can be held in
punishment isolation cell for more than 15 days. For instance, refusal to leave
the punishment isolation cell for the ordinary cell is regarded as breach of the
regime of serving one’s sentence, and in such a case the person can again be
placed in punishment isolation cell for 15 days more. Moreover, results of
examinations performed by the Ombudsman show that conditions in punishment
isolation cells are not fit for persons to be held there for a long period.
Punishment isolation cells are small cells with non-confined toilet facilities,
without daylight and natural ventilation, as well as insufficient artificial
light (see: case materials, pp. 88).
It
can be concluded from the aforesaid that long-term presence in such premises
without having the possibility to have a walk in fresh air may cause
considerable harm to person’s health.
Consequently, the Contested Norm that prohibits the possibility to have
walks for convicted persons who are held in punishment isolation cells
infringes the right to heath of the Applicant as guaranteed in Article 111 of
the Satversme.
10. Although Article 116 of the Satversme that
provides for cases when the rights of a person can be restricted does not
mention Article 111, the Constitutional Court has concluded that the
fundamental rights established in Article 111 of the Satversme can be
restricted with a view to protect other rights guaranteed in 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 and judgment of 23 April 2004 in
the case No. 2003-15-01, Para 7).
Consequently,
even in the case if the rights guaranteed in Article 111 of the Satversme are
restricted, the Constitutional Court must investigate whether the restriction
has been established by law, whether it has a legitimate objective and whether
it is proportionate with the objective.
In the case, there is no dispute whether
the Contested Norm has been established by a law adopted and proclaimed
according to proper procedure.
11. Placing in punishment isolation cell is one of
disciplinary punishments. A person is placed in punishment isolation cell only
in the case if he or she has committed grave or systematic breaches of the regime
of serving one’s sentence. The Constitutional Court has concluded that the restrictions of the rights of a convicted person,
including restrictions of the rights established for a person that is held in
punishment isolation cell, shall only be such, which are aimed at guaranteeing
execution of penalty and regime of execution of penalty (see: Judgment of 6 February 2006 by the Constitutional Court in the
case No. 2005-17-01, Para 7).
Placing
of a person in a punishment isolation cell has a legitimate objective, which is
ensuring that a person would no more breach the regime of serving one’s
sentence. Restrictions of rights, however, that are established for a person
held in a punishment isolation cell should be oriented towards reaching of the
legitimate objective.
Article 74 of the Code
provides for the regime in punishment and disciplinary isolation cells and
establishes different prohibitions for confined persons who are held in such
isolation cells. Since the prohibition to have walks is one of the many, it
should also be oriented towards execution of penalty and ensuring of the regime
for executing penalty.
According to the
Constitutional Court, a total prohibition of having walks, which implies
long-term stay indoors and constitutes threat to person’s health, is not
restriction of rights that is oriented towards execution of penalty or ensuring
the regime for executing penalty. The Saeima has not indicated any legitimate
objective of the restriction established in the Contested Norm.
Consequently, the restriction of the rights established in the Contested
Norm has no legitimate objective and therefore it does not complies with
Article 111 of the Satversme.
12. When taking the decision on the moment from which the
impugned norm loses effect, the Constitutional Court shall as much as possible
take care that the situation, which might arise from the above moment, does not
harm the interests of other persons (see:
Judgment of 6 June 2006 by the Constitutional Court in the case No. 2005-25-01, Para 23).
The Constitutional Court also has to take into account the factual
circumstances and consider the fact that public institutions might need certain
period of time to ensure observance of the fundamental rights of a person.
12.1. The Applicant has asked the Constitutional Court to recognize the Contested
Norm as void since the date of adopting it because this is the only way how to
prevent negative consequences caused to him in the result of application of the
Contested Norm.
In the case under review, the
Constitutional Court finds no reasonable grounds for retroactive repealing of
the Contested Norm. The Applicant has neither indicated how retroactive
repealing of the Contested Norm would eliminate the infringement of rights
caused to him.
12.2. When determining the date when the Contested Norm
will become void, the Constitutional Court must take into account the fact that
harm could be dome to persons’ health in the case if the time period from the
date of announcing the judgment till such date is too long. However, places of
imprisonment need a certain time period to carry out all necessary measures and
ensure the possibility to have walks also for convicted persons who are held in
punishment isolation cells.
When substantiating why the
Contested Norm would become void on 1 January 2011, the Saeima indicates that
it is necessary to substantially improve technical and organizational
possibilities of places of imprisonment to ensure the possibility to have
walks, as well as this requires financial resources (see: case materials, pp. 95). The Ministry of Justice explains that
it is not possible to ensure the possibility to have walks until a walking
ground is constructed for each punishment isolation cell, which at present is
impossible due to unsuitable infrastructure. It is neither possible to involve
more personnel that would be responsible for transfer and supervision of the
convicted persons or to pay for extra working hours for the present personnel (see: case materials, pp. 107).
The Constitutional Court
emphasizes once more that public institutions had more than ten years at their
disposal to carry out measures indispensible for ensuring the possibility to
have walks for convicted persons that are held in punishment isolation cells.
During this time, it was possible to introduce appropriate amendments into
normative acts and to find the necessary funding.
The Latvian Prison
Administration indicates that is possible to carry out repair works in current
walking grounds and to employ additional supervisors. The Jēkabpils
Prison only needs construction of a walking ground (see: case materials, pp.108 – 111). It follows from the information
provided by the Latvian Prison Administration that the number of convicted
persons held at the same time in punishment isolation cells, the number of
walking grounds and working hours provide the possibility to ensure walks for
the convicted persons held in punishment isolation cells. Since the present
technical condition of walking grounds allows ensuring the possibility of having
a walk for the rest of convicted persons, this could not serve as an obstacle
for the failure to ensure the possibility of having walks for persons held in
punishment isolation cells. Other data provided by the Latvian Prison
Administration also show that it is possible to implement all measures that are
necessary to ensure the possibility to have walks for persons held in
punishment isolation cells, this being done within a short time frame, which is
before 1 January 2011.
The Constitutional Court:
based on Articles 30 – 32 of
the Constitutional Court Law,
h o l d s :
The second part of Section 74
of the Latvian Penalty Execution Code does not comply with Article 111 of the
Satversme of the Republic of Latvia and shall be void as from May 2010.
The Judgment is final and not
subject to appeal.
The Judgment comes into force
on the date of publishing it.
Presiding
Judge G.
Kūtris
Translated by Egija Labanovska, translator of the Constitutional Court.