GUBENKO v. LATVIA
Inadmissible
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The applicant, Mr Vladimirs Gubenko, is a permanently resident non-citizen of the Republic of Latvia, who was born in 1976 and who at the time of submitting his complaint was in detention in Riga. He was represented before the Court by Mrs L. Cakare, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine, who was succeeded by Mrs K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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”. 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. 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. 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.