A case initiated with regard to the provisions regulating what objects an arrested person is allowed to keep
On 9 July 2021, the 2nd Panel of the Constitutional Court initiated the case “On compliance of paragraph 10 of Section 13(1) of the Law on the Procedures for Holding under Arrest and of paragraph 10 of Annex 4 to the Cabinet of Ministers Regulation No 800 of 27 November 2007 ‘Internal procedure regulations of investigation prisons’ with the first sentence of Article 101 and the first sentence of Article 106 of the Constitution of the Republic of Latvia”.
Contested Provisions
- Paragraph 10 of Section 13(1) of the Law on the Procedures for Holding Under Arrest:“An arrested person has the right to use personal small-scale household appliances – TV set (the size of the screen up to 50 cm cornerwise) and video games connectable thereto, as well as a refrigerator, water heating appliances, radio receiver (without the possibility of voice recording). The total weight of the household appliances in individual use shall not exceed 30 kilograms.”
- Annex 4 to the Cabinet of Ministers Regulation No 800 of 27 November 2007 “Internal procedure regulations of investigation prisons” lists objects and foodstuffs that a prisoner may keep. Listed in paragraph 10 of the Annex are a small-size TV set (diagonal screen size up to 50 cm), video games connectable to the TV set, a small-size refrigerator, and a radio receiver.
Provisions of Superior Legal Force
- First sentence of Article 101 of the Constitution (Satversme) of the Republic of Latvia (hereinafter – the Constitution): “Every citizen of Latvia has the right, as provided for by law, to participate in the work of the State and of local government, and to hold a position in the civil service.”
- First sentence of Article 106 of the Constitution: “Everyone has the right to freely choose their employment and workplace according to their abilities and qualifications.”
Facts of the Case
The case has been initiated on the basis of an application filed by Aivars Lembergs. By decision of a first instance court, which has not entered into legal force, the Applicant was sentenced, inter alia, to deprivation of liberty, and arrest was applied to him as a security measure. While under arrest, he asked permission of the head of the investigation prison to use a computer with internet connection. The Applicant’s request was declined because the contested provisions do not provide for an arrested person’s right to use such an item. Therefore, the Applicant holds that he is denied the right to perform, remotely, the duties of a member of a local government council.
The Applicant notes that the process in which the restriction on fundamental rights, as contained in the contested provisions, had been established does not comply with the principle of good legislation. Besides, more lenient means exist, which would be less restrictive of the fundamental rights granted to an individual by the first sentence of Article 101 and by Article 106 of the Constitution while allowing to achieve the legitimate aim of the restriction at an equivalent quality level. More specifically, the legislature could have adopted a regulation allowing a case-by-case assessment as to whether the arrested individual can be permitted to use a computer with internet connection, along with criteria for granting such permission. The benefit gained by society from the restriction imposed by the contested provisions is outweighed by the damage caused to the individual.
Court Procedure
The Constitutional Court has requested the Saeima and the Cabinet of Ministers to submit written replies stating the facts of the case and the legal reasoning by 9 September 2021.
- The case is to be prepared by 9 December 2021.
The Court will decide on the type of proceedings and the date of hearing once the case has been prepared.
The decision to initiate the case is available here.
Press release in PDF is available here.
Linked case: 2021-32-0103