JUDGMENT
On Behalf of the Republic of Latvia
Riga, 7 October 2009-12-17
in Case No. 2009-05-01
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 Mārtiņš Ēcis
(hereinafter – the Applicant),
according to Article 85 of the Satversme
(Constitution) of the Republic of Latvia, Article 16 1st indent,
Article 17 (1), 11th indent, Article 192 and Article 28.1 of
the Constitutional Court Law,
on 15 September 2009 in writing examined the case
“On
Compliance of the Words "Two" and "per Month" of Item 4 of
Part 8 of Section 50.4 of the Penalty Execution Code of Latvia with Article 96
of the Satversme (Constitution) of the Republic of Latvia”.
The Facts
1. On 23
December 1970, the Supreme Council of the Latvian SSR (Latvijas PSR Augstākā padome) adopted the Corrective
Labour Code and it came into force on 1 April 1971. The Decision “On Application of the Latvian SSR Legislative Acts”
of the Supreme Council of the Republic of Latvia adopted on 29 August 1991
provided that The Latvian SSR Corrective Labour Code shall be regarded as the
Latvian Corrective Labour Code until a new code is elaborated. On 30 December
1994, the Law “Amendments to the Latvian Corrective Labour Code” adopted on 15
December 1994 came into force. This Law provided for a new wording of the title
of the Law, namely, the Latvian Penalty Execution Code (hereinafter – the
Code), which is its current title.
The Law of
15 December 1994 supplemented the Code with Section 50.4 “Regime of Penalty
Execution in Closed Prisons”, and initially this Section did not regulate the
rights of persons to have telephone conversations.
On
14 October 21998, the Saeima (Parliament) of the Republic of Latvia
(hereinafter – the Saeima) adopted the Law “Amendments to the Penalty Execution
Code”. This Law, among the rest things, supplemented Part 8 of Section 50.4 of
the Code with Item 4 and provided that convicted persons serving sentence at
the average level of the sentence serving regime in a closed prison have the
right to have two telephone conversations per month. Item 4 of Part 8 of
Section 50.4 of the Code has never been amended again.
2. The
Applicant indicates that the words “two” and “per month” of Item 4 of Part 8 of
Section 50.4 of the Code (hereinafter – Contested Norms) do not comply with the
fundamental rights established in Article 96 of the Satversme (Constitution) of
the Republic of Latvia (hereinafter – the Satversme). The Applicant serves
sentence at the average level of sentence serving regime and therefore has the
right to have two telephone conversations per month. Such number of telephone
conversations is not sufficient to maintain normal relations with the
relatives, acquaintances and the society in general. The restriction included
in the Contested Norm prevents fast acquisition of information that could be
used for the exercise of rights of the Applicant.
The Applicant several times
already had to breach the rules and use a cell phone instead. He has received
disciplinary punishment for having used a cell phone. The Applicant insists
that further on he would also use a cell phone in the case of necessity.
It was indicated in the
application that persons serving their sentence in places of imprisonment, are
guaranteed the fundamental rights and all fundamental rights established in the
Satversme are applicable to them insofar as they are not restricted and are
compatible with the objective and regime of imprisonment.
When assessing the legitimate
objective of the Contested Norms, the Applicant indicates that there exists
difference between persons who are not confined and those who have been
confined and already serve their sentence. Restrictions established for the
sake of investigation, and, for instance, to protect victims, are essential in
each democratic State and shall be regarded as established in the interest of
the society. After a person is convicted, however, it is no more necessary to
protect the interest of investigation procedure. Therefore only those
restrictions that are provided by law or in a court judgment are applied to the
convicts. The Applicant, however, does not contest the right to have telephone
conversations as such; he rather objects to the insufficient number of
telephone conversations, and therefore it is necessary to pay a particular
attention to the legitimate objective of the restriction.
It follows from the Code that
there exist other measures that can also be applied to reach the legitimate
objective, like, regime of serving one’s sentence, community work, educational work,
general and professional training. However, when assessing compliance of the
restriction, it is necessary to take into account the fact that restriction of
the number of telephone conversations causes harm not only to by the prisoner,
but also his or her relatives, which is a part of the society. It can also be
concluded form Section 24.1 of the Recommendation Rec (2006) 2 of the Committee
of Ministers to the member states on the European Prison Rules (hereinafter –
European Prison Rules) that prisoners shall be allowed to
communicate as often as possible by telephone or other forms of communication
with other persons.
The Applicant admits that
there exist other forms of communication with persons in freedom, which is, for
instance, letters. Number of letters is not restricted, however the speed of
information exchange is of importance. Taking into account similar functions of
telephone conversations and letters, there is no reason to restrict number of
telephone conversations. Moreover, telephone conversations apart from those
with a lawyer, are performed at presence of an official of the place of
deprivation of liberty. In the case if the convicted person breaches provisions
of law, the above mentioned official has the rights to interrupt the telephone
conversation.
Taking into account the
aforesaid, the Applicant asks the Constitutional court to recognize the
Contested Norms as non-compliant with Article 96 of the Satversme.
3. The
institution that passed the contested act, the Saeima – does not agree
with the argumentation of the Applicant and asks the Constitutional Court to
recognize the application as ungrounded and to reject it.
Restrictions of private life
of a person that also apply to his or her communication with family members and
other persons follow from the fact that the person is imprisoned. The rights of
imprisoned persons to private life are not and cannot be the same as those of
persons living in freedom.
By referring to the judgment
of the European Court of Human Rights (hereinafter – ECHR) of 29 January 2002
in the case A.B. v. the Netherlands, the Saeima concludes that the rights to private life cannot be
interpreted in such a way that it is necessary to ensure convicted persons with
the rights to have telephone conversations. If prison administration provides
the possibility to have telephone conversations, then these can be subject to
different restrictions in accordance with ordinary and reasonable provisions of
prison life, which can be related, for instance, with the necessity to ensure
availability of the respective equipment for all convicted persons and the
necessity to prevent breaches of order and crimes. Section 24.1 and 24.2 of the
European Prison Rules provide that prisoners shall be allowed to communicate as
often as possible by letter, telephone or other forms of communication with
their families and other persons and to receive visits from these persons. The
provisions also provide for restriction and possibilities of control.
The Saeima draws attention to
the fact that the restriction included in the contested norm shall be assessed
in conjunction with other forms of communication that are guaranteed for
prisoners in places of imprisonment, and with the possibilities of the place of
imprisonment to ensure telephone conversations. Moreover, in case if
information that prisoners need an extra telephone conversation disregarding
the schedule or what has been established by law (for example, illness of a
relative or other problematic situation in the family) is obtained, then they
are provided with the possibility to have the conversation.
It is also necessary to take
into account the possibilities of places of imprisonment to ensure telephone
conversations. First, frequency and duration of telephone conversations is restricted
by the necessity to control the content of such conversations. Second, number
of taxophones is also limited. Third, it is necessary to observe the regime of
the place of imprisonment and to ensure storage of telephones.
Consequently, the restriction
has a legitimate objective, which is, security of the society and protection of
the rights of other persons. In order to reach this objective, it is necessary
to prevent a situation when convicted persons would commit breaches of rules of
a prison, to escape the place of imprisonment, commit new crimes and influence
victims of the crime. Moreover, it is necessary to respect and balance the
rights of all convicted persons to have controlled telephone conversations.
When answering questions set
by the Constitutional Court, the Saeima indicates that the Contested Norms do
not provide for any number of telephone conversations to be permitted in
extraordinary cases; therefore it depends on the officials of the place of
imprisonment. There can also be a situation when officials of the place of
imprisonment exercise freedom of actions granted to them differently. Incorrect
use of the freedom of action, however, may not serve as the reason why the
constitutionality of the Contested Norms was contested because it is possible
to submit a complaint regarding activities of officials of places of
imprisonment, and this is the head of the place of imprisonment that is
responsible for uniform exercise of freedom of action.
The Contested Norms not
provide for duration of a telephone conversation because this would not be
useful. Establishment of limits for the telephone conversation would restrict
the rights of convicted person at a greater extent. Duration of a telephone
conversation depends on such different and objective circumstances as number of
convicted persons, number of taxophones, regime of serving one’s sentence, the
possibilities to ensure accompanying of a convicted person to the taxophone and
the duty of employees of the prison to control the content of telephone
conversations.
It is also necessary to take
into account the fact that the State does not pay for telephone conversations
of prisoners and does not provide telephones. This is done by an enterprise.
The more convicted persons have telephone conversations, the better it is for
the enterprise.
Taking into account the
aforesaid, the Saeima asks the Constitutional Court to recognize the Contested
Norms as compliant with Article 96 of the Satversme.
4. The
summoned person – the Ministry of Justice – holds that the Contested
Norms are compliant with Article 96 of the Satversme. Argumentation provided by
the Ministry of Justice to justify such opinion is similar to those of the
Saeima.
The Ministry of Justice
indicates in addition to the aforesaid that Article 96 of the Satversme and
Article 8 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter –Convention) provide for the right to
communicate for persons located in places of imprisonment, and these rights can
be ensured differently. It is necessary to assess the restriction included in
the Contested Norms in the context of other forms of communication that are
available for prisoners, as well as the possibilities of the place of
imprisonment to ensure telephone conversations.
The Ministry of Justice draws
attention of the Constitutional Court to the fact that in extraordinary cases
prisoners are given the possibility to have an extra telephone conversation
disregarding the schedule and what has been established by law.
The majority of places of
imprisonment have taxophones of limited liability company “Lattelecom”. A
decision regarding installation of the necessary number of taxophones is made
by the above mentioned company by assessing its possibility to gain profit.
Consequently, the Ministry of
Justice holds that the restriction included in the Contested Norms is socially
indispensible and compatible, and the Norms comply with Article 96 of the
Satversme.
5. The summoned
person – the Ombudsman of the Republic of Latvia (hereinafter -
Ombudsman) – holds that the Contested Norms comply with Article 96 of the
Satversme. Argumentation of the Ombudsman to justify such opinion is similar to
those of the Saeima.
In addition to what has
already been said, the Ombudsman indicates that the number of telephone
conversations established in the Contested Norms shall be regarded as a
proportionate restriction of the right to private life. The necessity to
observe the regime of the place of imprisonment and the necessity to control
telephone conversations of convicted persons may serve as justification for
establishing the restriction enshrined in the Contested Norms.
The Ombudsman emphasizes that
convicted persons are also provided with other forms of communication with
persons in freedom, for instance, the right to have a visit by the latter or
the right to send letters or telegrams. When establishing the permitted number
of telephone conversations within a certain period, the right of all convicted
persons to use telephone as communication measure and the fact that the total
time devoted to this in accordance with the level of serving one’s sentence is
proportionally distributed among the convicted persons is taken into account.
6. The summoned
person – associated professor of the
Police Academy of Latvia Dr. iur.
Vitolds Zahars – indicates that the Contested Norms provide for a
restriction of the right to private life. This restriction is related with
material possibilities and human resource availability of the place of
imprisonment, as well as the aspects of security of the society and protection
of the rights of other persons.
The particular form of
communication established in the Contested Norms is only one of the ways how
prisoners can communicate with persons in freedom. As to other forms of
communication, one could mention, for instance, the right of a prisoner to
receive 12 consignments and parcels per year, to send and receive letters and
telegrams without any limit, to submit applications to public institutions,
social organizations and officials, to use personal TV set and radio, to have
four long visits per year and to attend public warships lead by a prison
chaplain.
Practice of places of
imprisonment regarding granting extra telephone conversations show that
personnel of places of deprivation of liberty do their best to reduce the
negative influence of imprisonment on the convicted persons.
Mr. Zahars concludes that the
Contested Norms comply with Article 96 of the Satversme.
7. The
summoned person – the Latvian Prison Administration – informs the Court
that prisons permit exceed the number of telephone conversations established in
the Code in case if the prisoner receives information about death, accident or
illness of a relative. Administration of the place of imprisonment can also be
the initiator when providing for extra telephone conversations to inform
relatives of the prisoner in case if the prison is quarantined and long visits
are prohibited, or if proceedings regarding early release of the prisoner are
initiated. Extra telephone conversations can also granted as an encouragement.
The number of cases when extra
telephone conversations are granted at prisons is the following: in the Central
Prison – four to five times, the Iļģuciems Prison – ninety-six to
hundred and twelve times, the Liepāja prison – twelve to twenty-four times
and the Jēkabpils prison – two to four times per year.
Telephones are located in
premises that prisoners cannot access when alone. This means that all telephone
conversations take place at the presence of an official of the place of
deprivation of liberty. Such presence is related with performing of supervisory
function, for example, to prevent damaging of telephones, rather than with
control of the content of telephone conversations.
Location of taxophones and
number thereof depends on peculiarities of infrastructure of places of
imprisonment. Moreover, places of deprivation of liberty have the duty to
ensure fulfilment of all requirements of operators for instalment and
maintenance of telephones. Observance of these requirements is related with the
necessity of an official to accompany the prisoner to the taxophone. In order
to ensure prisoners with the possibility to have telephone conversations more
often, it would be necessary to increase number of officials employed in places
of imprisonment in average by three persons in each prison.
The Latvian Prison
Administration also indicates that before installation of communication
network, the operator assesses all risks related with deriving profit.
Consequently it is possible that the operator might conclude that profit from a
place of deprivation is insufficient.
The
Constitutional Court holds:
8. Article
96 of the Satversme provides: „Everyone has the right to
inviolability of his or her private life, home and correspondence.” It
follows from the application that the Applicant asks assessing
constitutionality of the Contested Norms insofar as they apply the fundamental
right to inviolability of private life established in Article 96 of the
Satversme. In the case under review, constitutionality of norms with the right
of a person to inviolability of home or correspondence is not contested.
Consequently, the Constitutional Court has no reason to assess the Contested
Norms in this aspect.
When interpreting the right to
private life guaranteed in Article 96 of the Satversme, the Constitutional
Court has concluded that these rights are applied to different aspects.
It protects the physical and moral integrity, honor and reputation, use of
person’s name and identity, and personal data. 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. The State has to observe and protect to maximum the right
of an individual to inviolability of private life and interference is allowed
only in strictly determined cases, when it is important for protecting public
interests (see: Judgment of 26 January
2005 by the Constitutional Court in the case No. 2004-17-10, Para 10 and 14.3).
9. The
Applicant holds that the Contested Norms include restriction of the fundamental
rights established in the Satversme. It also follows from the reply of the
Saeima that the Norms restrict the fundamental rights.
It has already been concluded
in the case-law of the Constitutional Court that the State has triple duty – to
observe, to protect and to ensure rights of a person. For the State to act in
accordance with the human rights, it has to fulfil a range of duties, which are
both, passive, like non-interference with the rights of a person, and active,
like ensuring of meeting the individual needs of persons (see: Judgment of 3 April 2008 by the Constitutional Court in case No.
2007-23, Para 7). In this case, taking into account the different nature of
each fundamental right, it must be assessed whether the State is able to
ensure, by means of its positive action, meeting of individual needs of a person
that follow from the particular fundamental rights. Consequently, taking into
account the different duties of the State in the context of each particular
fundamental right, the freedom of action to be conferred to the State and thus
the amount of control rights of the Constitutional Court differs.
The duty of the State to help
a prisoner maintain relations with relatives follows from the right to private
life. 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, 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 Article 96 of the
Satversme (see: Judgment of 23 April 2009
by the Constitutional Court in the case No. 2008-42-01,
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 recognize 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 was not 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).
10.1. The
right to inviolability of private and family life are also guaranteed in
Article 8 of the Convention. The objective of this international norm binding
on Latvia is, first of all, to protect a person against ungrounded inference by
the State. This Article, however, obligates the State not only to restrain from
interference with private life of a person. In addition to this negative duty
of the State, it also has a positive duty to perform all necessary activities
to ensure these rights (see: Judgment of
the ECHR in the case: Biriuk v.
Lithuania, judgment of 25 November 2008, application no. 23373/03, Para 35).
Likewise, the first part of
Section 17 of the International Pact on Civil and Political Rights provide that
arbitrary and unlawful interference with private and family life, threatening
of inviolability of the dwelling place, his or her correspondence secrets,
dignity or reputation shall be forbidden. The norm of international law binding
on Latvia not only provides for a negative duty of the State but also obligates
it to ensure exercise of rights. The State has a special duty regarding
imprisoned persons in ensuring the respective rights. To provide a classical
example, a positive duty of the State is to ensure prisoners with the right to
correspondence, as well as the right to contact with other persons (see: Nowak
M. U.N. Covenant of Civil and Political Rights. CCPR Commentary. 2nd revised
edition: Norbert Paul Engel Verlag, e.K., 2005, p.380).
However, when deciding on its
positive duties, the State shall be conferred a certain freedom of action,
namely, these positive duties shall be assessed in the context of the
objectives established in the second part of Article 8 of the Convention, and
by means of these it is necessary to achieve a fair balance that
has to be struck between the competing interests of the individual and of the
community as a whole (see, e.g.: Judgment
of the ECHR in the cases: Lopez Ostra v. Spain,
judgment of 9 December 1994, Series A no. 303-C, p. 54, Para 51 un Giacomelli
v. Itally, judgments of 2 November 2006, Para 78).
It is also necessary to take
into consideration that the fact whether what has been established in the norms
shall be regarded as restriction or, on contrary, a positive duty of the State,
is of no importance. The decisive factor in any case is the fact whether a fair
balance between the interests of the society, on the one hand, and those of a
particular person, on the other is reached in the particular situation (see: Judgment of the ECHR in the case Dickson v. the United Kingdom,
judgment of 4 December 2007, application no. 44362, Para 71).
As to the right of prisoners
to have telephone conversations, the ECHR has concluded that Article 8 of the
Convention cannot be interpreted in a way to guarantee prisoners the rights to
have telephone conversations, especially in cases when other forms of
communication are available, for instance, written correspondence. On the other
hand, if prison administration has ensured the possibility to have telephone
conversations, it has the right to follow reasonable regulations of prison live
and to submit telephone conversations to lawful restrictions, for example, by
ensuring availability of telephones to all prisoners or preventing disorders or
crimes (see: Judgment of the ECHR in the
case A.B. v. the Netherlands,
application no. 37328/97, judgment of 29 January 2002, Paras 92, 93).
10.2. The Constitutional Court has recognized that European prison Rules have
been adopted for the Council Member States to guide themselves, in their
legislation and practice, by principles included therein. Although the status
of these regulations are not the conclusions of the above
documents shall be assessed not only as recommendatory but also as an
authoritative enough viewpoint, which recommends every state to choose the
optimal model of activity for the solution of a concrete problem (see: Judgment of 19 December 2001 by the
Constitutional Court in the case No. 2001-05-03, Para 6
of the Concluding Part, Judgment of 14 September 2005 in the case No.
2005-02-0106, Para 16 and Judgment of 6 June 2006 in the case No. 2005-25-01,
Para 22).
Section 24.1 of the European Prison rules provides that prisoners shall be
allowed to communicate as often as possible by letter, telephone or other forms
of communication with their families, other persons and representatives of
outside organizations and to receive visits from these persons.
At the same time Section 24.2
of the European Prison Rules provide for limits of implementation of such duty
of the State by providing that communication and visits may be subject to
restrictions and monitoring necessary for the requirements of continuing
criminal investigations, maintenance of good order, safety and security,
prevention of criminal offences and protection of victims of crime, but such
restrictions, including specific restrictions ordered by a judicial authority,
shall nevertheless allow an acceptance minimum level of contact.
Consequently, the
Constitutional Court must assess whether the State, when providing for the
rights of the Applicant established in the Contested Norms, has fulfilled its
positive duty established in Article 96 of the Satversme and has not, for
instance, arbitrarily established number of telephone conversations. Namely,
the Constitutional Court has to assess whether such number of telephone
conversations established in the Contested Norms has a reasonable justification
and whether the established number of telephone conversations is such that can
be regarded as adequate for the State to be able to fulfil its positive duty.
11. The Saeima
indicates that the restriction included in the Contested Norms should be assessed
in the context of other forms of communication available for prisoners in
places of imprisonment. According to Section 44, Section 47, Section 49,
Section 50 and Section 50.4 of the Code, convicted persons serving sentence at
the average level of the sentence serving regime in a closed prison have the
right to receive 12 consignments and parcels per year, to send and receive
letters and telegrams without any limit, to submit applications to public
institutions, social organizations and officials, to use personal TV set and
transistor radio receiver, to use four long visits per year. A similar opinion
is expressed by other summoned parties – the Ministry of Justice, the Ombudsman
and Mr. Zahars (see: case materials, pp.
41, 42, 45 and 46).
As to the rights of prisoners
to have telephone conversations, the ECHR has recognized that their rights to
have telephone conversations shall be assessed in conjunction with other forms
of communication available insofar as these are available and applicable (see: Judgment of the ECHR in the case A.B. v. the Netherlands, application
Nr. 37328/97, judgment of 29 January 2002, Para 92).
It can also been concluded
from what has been established in Section 17 of the International Pact on Civil
and Political rights that the possibilities given to imprisoned persons to
communicate with the outer world, like telephone conversations, shall be
assessed in conjunction with other forms of communication available, and this
communication can be implemented by observing the necessary supervision (see: Nowak,
p.401; Views of the Human Rights Committee, Angel Estrella v. Uruguay,
Communication No. 74/1980, Para 9.2).
In general, the Constitutional
Court agrees with the argumentation of the Saeima that the number of telephone
conversations established in the Contested Norms shall be assessed in
conjunction with other forms of communication available for prisoners in places
of deprivation of liberty. The Constitutional Court, however, cannot agree with
enumeration of forms of communication available, in the context of which the
number of telephone conversations established in the Contested Norms should be
assessed. Not all rights of a convicted person that are enumerated in Section
44, Section 47, Section 49, Section 50 and Section 50.4 of the Code can be
compared with a telephone conversation. Although these also ensure, at a
certain extent, the possibilities of a convicted person to communicate with the
outer world, only the right of prisoners to receive and send letters without
any limit, as established in the first part of Section 49 of the Code and the
right to have four long visits (eight to sixteen hours) and six short visits
(one to two hours) per year established in item 1 of Part 8 of Section 50.4 of
the Code fulfil the function of a telephone conversation. As to the rights of
prisoners to receive necessary information that is at the disposal of state and
municipal institutions, there is a separate rights established in Section 50 of
the Code. Consequently, the above mentioned rights shall be assessed
differently if compared with the rights of a prisoner established in Section
44, Section 47 and Section 50.4 of the Code. It also has to be indicated that
sending of telegrams established in the first part of Section 49 of the Code can
no more be ensured due to technical reasons.
The Constitutional Court holds
that, when assessing the rights established in the first part of Section 49 and
Item 2 of Part 8 of Section 50.4 of the Code in conjunction with what has been
established in the Contested Norms, there is no reason to conclude that the
State has not fulfilled its positive duty. In addition to telephone
conversations, the Code provides convicted persons with other forms of
communication with persons in freedom. It cannot be proved by the application
or the materials of the case that the Applicant would not have had the
possibility to use other forms of communication established in the Law, apart
from the right to send telegrams, or that these forms of communications were
hampered. Moreover, imprisoned persons have the possibility to request extra
telephone conversations in case of death, health problems of a relative or
other similar cases (see: Opinion of the
Latvian Prison Administration and the Ministry of Justice, case materials, Vol.
35, 42 and 43).
It should also be taken into
consideration that the information provided by the Ministry of Justice and the
Latvian Prison Administration regarding the fact that in exceptional cases
convicted person are granted with extra telephone conversations, which can be
initiated either by the prisoner or, in separate cases, by administration of
the place of deprivation of liberty. Such practice allows ensuring
communication possibilities even if a convicted person has already had the
number of telephone conversations established by law. The Applicant also admits
that he has been granted the right to extra telephone conversations as an
alternative for sending telegrams (see:
case materials, pp. 75).
It is also important that a
convicted person, under Item 2 of the first part of Section 68 of the Code, can
be granted, for the sake of inducement, extra telephone conversations, the
number of which cannot exceed six telephone conversations per year. It can be
concluded from the public report of the Latvian Prison Administration of 2008
that in the previous year there were 501 telephone conversations granted as
inducement (see: Public Report of the
Latvian Prison Administration of 2008, pp. 17. http://www.ievp.gov.lv/?sadala=92).
Taking into account the
aforesaid, the Constitutional Court must investigate whether the legislator, in
the Contested Norms, has provided for the right of a convicted person who has
fulfilled his or her duties established by law to have a sufficient number of
telephone conversations.
12. The Code differently regulates the issue on the right of convicted
persons to have telephone conversations. The above mentioned right depend on
the regime of serving one’s sentence and the level thereof. For instance, under
Item 4 of the seventh part of Section 54.4 of the Code, convicted
persons serving sentence at the highest level of the sentence serving regime in
a closed prison have the right to have three telephone conversations per month.
According to Item 4 of Part 8 of Section 54.4 of the Code, convicted persons
serving sentence at the average level of the sentence serving regime in a
closed prison have the right to have two telephone conversations per month. On
the other part, under Item 9 of Part 9 of Section 54.4 of the Code, convicted
persons serving sentence at the lowest level of the sentence serving regime in
a closed prison have the right to have one telephone conversation per month.
Consequently, the different
rights to have a certain number of telephone conversations per month reflect
progressive execution of penalty. Under Section 50.1 of the Code, progressive
execution of penalty is based on differentiation of convicted persons depending
on the kind and regime of each place of deprivation of liberty, as well as
transfer of convicted persons from one kind of prison to another taking into
account the served part of the sentence and behaviour of the prisoner. The
objective of progressive execution of penalty is to achieve compliance of the
regime of serving one’s sentence with behaviour of the convicted person and
level of re-socialization, as well as his or her optimal integration into the
society after the release. The system of progressive penalty execution is
applied to all convicted persons placed in closed or partially closed prisons
disregarding the tem of penalty. Consequently, the Constitutional Court, when
assessing constitutionality of the Contested Norms, must take into
consideration consistency of the legal regulation.
13. The Saeima
justifies the number of telephone conversations established in the Contested
Norms with the necessity to control the content of telephone conversations, the
limited number of taxophones, as well as the duty to preserve the regime of the
place of imprisonment and the technical condition of taxophones.
13.1. The
necessity to control content of telephone conversations is enshrined in the
seventh part of Section 49 of the Code, which provides that telephone
conversations, apart from those with a lawyer, shall be subject to control. Section
24.2 of the European Prison Rules also expressis
verbis permit restrictions of the rights of imprisoned persons insofar as
they are necessary to continue investigation in a criminal case, ensure order,
security and protection of the place of imprisonment, prevent other criminal
delinquencies and protect victims of the crime. The Ombudsman also indicates in
its opinion that such control is indispensible to ensure order and prevent
planned criminal activities (see: case
materials, pp. 45).
The Constitutional Court
admits that the duty to control content of telephone conversations established
by law insofar as its execution is individually grounded and necessary also
provide for the necessity of certain resources, for instance, ensuring of
respective infrastructure. However, according to what has been indicated by the
Ministry of Justice and the Latvian Prison Administration, a person accompanying
the convicted person to a taxophone does not, in fact, control the content of
telephone conversations but mainly provides supervision and ensuring of order
in the place of imprisonment.
13.2. It follows from the information provided by the Saeima and the case
materials that the decision regarding installation of taxophones is made by the
operation of telecommunication in accordance with the possibilities to gain
profit.
The Constitutional Court
indicates that this is the duty of the legislator to elaborate, assess and
adopt legal regulation regarding exercise of the fundamental rights of a
person. Considerations of a private person should not have an impact on the
right and duty of the Saeima to decide on such legal regulation that deal with
protection, exercise and ensuring of the fundamental rights of other private persons.
It can be concluded from the
information provided by the Ministry of Justice and the Latvian Prison
Administration that one of the main considerations that helped deciding on the
number of telephone conversations established in the Contested Norms is the
fact that prison officials must accompany convicted persons to a taxophone.
Moreover, an official of the place of imprisonment has the duty to ensure
during a telephone conversation that the inventory of the place of
imprisonment, for instance a taxophone is not damaged.
The Constitutional Court does
not have the reason to question the effective rules of order regarding the duty
of an official of the place of imprisonment to accompany the convicted person
to a taxophone. This duty can be justified by consideration of order and
security that should be taken into account in places of imprisonment. The
Ombudsman also admits validity of such requirement by indicating that the
objective of such supervision is to ensure order in places of imprisonment (see: case materials, pp. 45).
The Latvian Prison
Administration has provided information that in one of the prisons taxophones
were located in the cells as an experiment. However, the convicted persons had
objections to this because conversations with relatives were carried out at the
presence of other imprisoned persons. Therefore the prison refused from such
alternative solution (see: case
materials, Vo., 36).
When providing for a greater
number of telephone conversations, it is necessary to take into account the
fact that resources necessary for ensuring the above mentioned supervisory
function would increase proportionally. The Latvia Prison Administration has
indicated that such increase of telephone numbers would also imply the
necessity for more personnel.
The consideration regarding
the necessity of additional resources can be regarded as grounded taking into
account the consideration that in this case the State fulfils its positive duty
of exercising the fundamental rights. The Constitutional Court has already
concluded that the legal regulation regarding duration of short
visits of convicted persons taking into account the necessity to ensure the
control of the visits may be justified by the amount of resources at the
disposal of the place of imprisonment (see:
Judgment of 23 April 2009 by the Constitutional Court in the case No. 2008-42-01,
Para 17.2).
14. The
Applicant indicates that in the case if the contested norms are not repealed,
he would further on have to unlawfully use cell phone, which means that the
objective of the execution of criminal penalty, which is to observe
requirements of Law, would not be reached.
Section 70 of the Code provide
for the kinds of disciplinary punishments for confined persons. Item 9 of the
fourth part of this Section provides that use and storage of a cell phone, its
parts or a SIM card shall be regarded as a grave violation of the regime of
serving one’s sentence in closed and partially closed prisons.
It can be concluded from the
public report of 2008 that 2557 cell phones and 3007 parts of cell phones (SIM
cards) have been expropriated from confined persons. Unlawful usage of the
above mentioned means of communication is one of the most popular breaches of
the regime of imprisonment (see: Public
Report of the Latvian Prison Administration of the Ministry of Justice of 2008,
pp. 15. http://www.ievp.gov.lv/?sadala=92).
The Constitutional
Court has already concluded that convicted persons, in the frameworks of the regime
of penalty execution, are provided with restrictions established in the Code
and other normative acts. Deprivation of liberty – forced
keeping of a person in imprisonment – is a kind of punishment, which is
connected with the restriction of the fundamental rights, mainly – the right to
liberty. The convicted person is isolated from the habitual environment and
mode of life. Restrictions, which are determined in accordance with execution
of penalty of deprivation of liberty, create to the convicted person physical
and psychological burden and difficulties. If during serving the sentence the
convicted person violates the internal rules of the place of deprivation of
liberty, he/she may be inflicted a disciplinary punishment. The most severe of
the punishments is placement of the convicted person in the solitary
confinement cell. The restrictions of rights, connected with the disciplinary
punishment can also be justified if they are proportionate. The aim of such
additional restrictions is the necessity of guaranteeing discipline and order
at the institutions of deprivation of liberty (see: Judgment of 6 February 2006 by the Constitutional Court in the
case No. 2005-17-01, Para 6).
The right of a convicted
person to private life no doubt differs from that of a person in freedom. For
instance, as to imprisoned persons, the Constitutional Court has recognized
that these person shall not enjoy rights to private life at the same extent as
persons in freedom (see: Judgment of 23
April 2009 by the Constitutional Court in the case No. 2008-42-01, Para 11).
The Constitutional Court
admits that the number of telephone conversations included in the Contested
Norms, though being insufficient according to the Applicant, may not serve as
justification of breaching the regime of serving one’s sentence. However, the
infringement mentioned may not serve as the grounds for the Constitutional
Court to repeal the Contested Norms. Considerations for ensuring order and
security of the place of imprisonment are of greater importance that the wish
of imprisoned persons to have more telephone conversations according to their
subjective opinion. Consequently, administration of a place of imprisonment has
the right to react to such breaches of the regime of penalty execution according
to the procedures established by law.
15. The Constitutional Court has recognized that
legal regulation of other states, when solving separate issues of the Latvian
legal system, can not be directly applied, apart from the cases established by
law. In the analysis of comparative rights, one has to take into account the
functional context. It follows from essential judicial, social, political,
historical and systemic differences of legal systems of different states.
However, for solution of the particular legal issue, functionally resembling
legal regulations of other states can be indirectly applied, e.g. as an
indicator of a guideline or solution of a particular problem by bearing in mind
potentially different context (see:
Judgment of 8 June 2007 by the Constitutional Court in the case No. 2007-01-01,
Para 24.1).
As to legal regulations of
other European states of the right of imprisoned persons to have telephone
conversations, it can be concluded that basically all persons are prohibited
using cell phones, and expenses for telephone conversations, apart from some
exceptions, are covered by the convicted persons themselves. In some states,
like Check Republic, Croatia, Estonia, Poland and Slovenia the right of
convicted persons to have telephone conversations are regulated in a general
manner without providing for the permitted number and duration of such
conversations (see, e.g.: Section 18 of
the Penalty Execution Law of the Check Republic, Section 125 of Liberty
Deprivation Penalty Execution Law of Croatia, Section 28 and Section 29 of the
Estonian Imprisonment Law, Sections 90, 91, 105 and 247 of the Penalty
Execution Code of Poland and Section 75 of the Criminal Penalty Execution Law
of Slovenia). Legal acts of other states provide for concrete restrictions
regarding the number of duration of telephone conversations (see, e.g.: Sections 73, 74, 75 and 102 of
the Lithuanian Penalty Execution Code and Section 27 of the Criminal Penalty
Execution Provision law of Slovakia). There is no uniform regulation in
this respect. Therefore it can be concluded that the European States do not
recognize the right of imprisoned persons to an unlimited number of telephone
conversations.
Taking into
account the aforesaid, the Constitutional Court holds that the State has not
infringed its duty that follows from Article 96 of the Satversme when
establishing the permitted number of telephone conversations for convicted
persons.
The
Constitutional Court
based on Articles 30 – 32 of the Constitutional Court Law,
h o l d s :
The words
"two" and "per month" of Item 4 of Part 8 of Section 50.4
of the Penalty Execution Code of Latvia complies with Article 96 of the
Satversme (Constitution) of the Republic of Latvia.
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.