ECtHR decision in Gubenko v. Latvia (excerpts), 2015

A. The circumstances of the case

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4. The applicant was serving a prison sentence in Daugavpils prison. He was a follower of the Hare Krishna movement. On 2 October 2006 he asked the director of the prison to be allowed to keep in his cell an audio cassette player with headphones and cassettes with recordings of religious programmes and services, prayer beads for chanting Maha Mantra, and other attributes for prayers and religious rites.

5. On 9 October 2006 the director denied his request, stating that according to Regulation no. 423 of the Cabinet of Ministers (see below) prisoners were not allowed to possess the aforementioned objects.

6. That response was upheld by the Prisons Administration (Ieslodzījuma vietu pārvalde) on 27 October 2006.

7. On 30 October 2006 the Ministry of Justice wrote to the applicant, conceding that the list of permissible objects contained in the Regulation was insufficiently complete and its frequently restrictive application by prisons made it difficult for prisoners to receive various objects. The Ministry told the applicant that it would take his comments into account when drafting future amendments to the existing legal regulation.

8. The applicant then attempted to dispute the constitutionality of the Regulation before the Constitutional Court. He stated in a general manner that the contested legislative instrument did not permit the keeping and use of religious objects in prison, and he asked the Constitutional Court to repeal it.

9. On 7 November 2006 a committee of three judges of the Constitutional Court, relying on Section 20 (5) (3) of the Constitutional Court Law, adopted a decision refusing the initiation of constitutional proceedings. The decision stated that the constitutional complaint did not comply with the criteria provided by Section 19²(1) of the Constitutional Court Law. It was evident from the decision that the applicant had not sufficiently demonstrated in his complaint how his fundamental rights had been infringed and that the Constitutional Court had been unable to rule on the constitutionality of an existing legal provision in this case.

B. Relevant domestic law and practice

1. Constitution

10. The relevant Article of the Latvian Constitution (Satversme) provides:

Article 99

“Everyone has the right to freedom of thought, conscience and religion. The church shall be separate from the State”.

2. Regulation of the Cabinet of Ministers

11. Regulation of the Cabinet of Ministers no. 423 (2006), entitled “The Internal Rules of Prisons” (Brīvības atņemšanas iestādes iekšējās kārtības noteikumi), provides in the relevant parts that detainees may keep only a limited range of objects in their cells, these objects being exhaustively listed in Annex no. 1 of that Regulation. The list in the amendment does not include any objects of a religious character such as those requested by the applicant.

3. Constitutional Court Law

12. Pursuant to Section 19²(1), an individual constitutional complaint must include justification as to how the applicant’s fundamental rights as defined in the Constitution have been infringed.

13. Section 20 (5) (3) provides that in examining applications, the panel dealing with the application may refuse to initiate a matter if the application does not comply with the requirements specified in Sections 18 or 19-193 of the Constitutional Court Law. For a more detailed review see Meimanis v. Latvia, no. 70597/11, 30 June 2015, “Relevant domestic law and practice” part.

4. Case-law of the Constitutional Court

14. In 2010, R.N. ‒ a person who was serving a prison sentence at the material time ‒ lodged a constitutional complaint in which he asked the Constitutional Court to assess Annex no. 1 of Regulation no. 423 of the Cabinet of Ministers (see paragraph 11 above), insofar as it failed to regulate the keeping of religious objects. The claimant argued that the prohibition on the keeping by prisoners of religious objects such as icons, crosses, or rosaries contradicted the right to freedom of religion as guaranteed in Article 99 of the Constitution. He also argued that the prohibition on keeping religious objects prevented him from practising religious rituals and restricted his right to freedom of religion, and that such prohibition was not proportional. The claimant considered that the above restriction could not be justified on grounds of safety because it was possible to harm others using objects that were authorised. Moreover, in many prison establishments, the keeping of religious objects was permitted and this caused a feeling of inequality amongst the prisoners.

15. On 1 July 2010 the Constitutional Court instituted constitutional proceedings (case no. 2012-13-01) in connection with Annex no. 1 of Regulation no. 423 of the Cabinet of Ministers (2006), insofar as it failed to regulate the keeping of religious objects. On 18 March 2011 it ruled in favour of the claimant and recognised that the contested norm, i.e. Annex no. 1 of the contested Regulation did not comply with Article 99 of the Constitution. The annex was repealed with effect from 1 October 2011.

COMPLAINTS

16. The applicant complained under Article 9 of the Convention about the prohibition on keeping religious objects in his prison cell.

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THE LAW

A. Complaint under Article 9 of the Convention

18. The applicant complained that the prohibition on keeping religious objects in his prison cell was contrary to the rights guaranteed under Article 9 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

19. The Government argued, inter alia, that the applicant had failed to exhaust domestic remedies by failing to submit a properly drafted constitutional complaint. In particular, the applicant had not substantiated his argument that the contested legislative act was incompatible with the Constitution nor explained how the prohibition on keeping religious objects violated his right to freedom of religion as it followed from Article 19²(1) of the Constitutional Court Law. They drew the Court’s attention to the fact that the Constitutional Court had already instituted constitutional proceedings in a comparable legal situation in 2002. Specifically, in case no. 2001-15-03 the Constitutional Court had ruled that Regulation no. 73 of the Cabinet of Ministers (2002), insofar as it prohibited food parcels, was not compatible with the Constitution.

20. The applicant did not submit any observations.

21. The Court reiterates that it is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress directly in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been discharged, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Mooren v. Germany [GC], no. 11364/03, § 118, 9 July 2009).

22. The Court observes at the outset that it has already examined the scope of the Constitutional Court’s review in Latvia. The Constitutional Court examined, inter alia, individual complaints challenging the constitutionality of a legal provision or its compliance with a provision of superior legal force (see, as a recent example, Latvijas jauno zemnieku apvienība v. Latvia (dec.), no. 14610/05, §§ 44-45, 17 December 2013).

23. Turning to the effectiveness of this remedy in the instant case, the Court observes that the contested measure – a prohibition on keeping religious objects in a prison cell – derived from a legal provision, as it had been confirmed by the Constitutional Court (see paragraph 15 above). The circumstances of the instant case should therefore be distinguished from the cases of Liepājnieks v. Latvia (dec.) no. 37586/06, §§ 73-76, 2 November 2010 and Savičs v. Latvia, no. 17892/03, §§ 113-116, 27 November 2012, in which the request to adjudicate issues relating to the interpretation and erroneous application of legal provisions, and the filling of a legislative gap fell outside the competence of the Constitutional Court. The Court is therefore satisfied that the Government have discharged their burden of proof as to the effectiveness of this remedy.

24. As to the question of whether or not the applicant had properly exhausted the above remedy, the Court reiterates that the obligation to exhaust domestic remedies normally requires that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I, more recently, Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, § 72, 25 March 2014).

25. In the instant case the Constitutional Court had informed the applicant that his constitutional complaint did not comply with Section 19²(1) of the Constitutional Court Law which set out all the formal requirements to be met when submitting a constitutional complaint, inter alia, that anyone submitting a constitutional complaint must substantiate the claim that an existing legal provision has infringed the fundamental right invoked. It appears that the applicant failed to substantiate his grievances on the point of facts and law, and his general complaint was insufficient for the Constitutional Court to conclude that a prohibition on keeping religious objects in a prison cell in the applicant’s case derived from a legal provision. In this connection the Court observes that it is not its task to take the place of the Constitutional Court and to review its conclusion in relation to the quality of the applicant’s complaint. Furthermore, the Court notes that at a later date the Constitutional Court accepted a properly drafted complaint brought by another prisoner who had raised the same legal issue as the applicant. In these circumstances the Court considers that by failing to submit a proper constitutional complaint through means complying with the requirements set out by the domestic law, the applicant has failed to exhaust domestic remedies.

26. Relying on the aforementioned considerations, the Court concludes that this complaint must be rejected under Article 35 § 1 of the Convention.


Document data: adopted on 03.11.2015, application No. 6674/06 Link: http://hudoc.echr.coe.int/eng?i=001-159065

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