KOVALKOVS v. LATVIA
Inadmissible
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
1. The applicant, Mr Gatis Kovaļkovs, is a Latvian national who was born in 1970 and lives in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 18 February 2002 the Jelgava Court convicted the applicant of attempted robbery. He was sentenced to six years’ imprisonment, suspended for two years. On 5 November 2003 the Dobele District Court established that during that two-year period the applicant had committed various infractions. For that reason it ordered the applicant to start serving his sentence pursuant to the Jelgava Court’s judgment of 18 February 2002, effective immediately. 4. On 13 November 2003 the applicant was transferred from the Central prison in Rīga to serve his sentence in Pārlielupe prison in Jelgava. According to the applicant, soon after his arrival at Pārlielupe prison he began to have disagreements with the administration of the prison and with his cellmates. It appears that the primary cause of conflict was the fact that almost all of the prisoners and staff at Pārlielupe prison spoke Russian. According to the applicant, their knowledge of Latvian – the official language of Latvia and the applicant’s native language – was limited or non-existent. The applicant made numerous requests to be transferred to a place of imprisonment where he could freely communicate in Latvian. However, all his requests to that effect were rejected. 5. It furthermore appears that at the relevant time the applicant frequently made dismissive and disparaging oral remarks concerning the Russian minority of Latvia. Similar statements were also included in the applicant’s correspondence with State authorities and in articles which he regularly published in an extreme right-wing magazine. As a result, other inmates became hostile towards the applicant. 6. On 18 August 2005 the applicant was transferred from Pārlielupe prison to Jēkabpils prison after the governor of Pārlielupe prison had written a report in which it was noted that the applicant “constantly provoke[d] conflicts with the administration of the prison by sending unsubstantiated complaints to various Latvian newspapers”. 7. On 7 October 2005 the applicant was transferred to Valmiera prison. 8. On 7 November 2005 the applicant was transferred to Matīsa prison in Rīga (in 2009 Matīsa prison merged with the adjacent Central prison). The report concerning the desirability of the applicant’s transfer noted that “all of the [applicant’s] conflicts and disagreements in prison [were] caused by himself, [he] provoke[d] the [prison] administration and incite[d] other prisoners to write complaints”. At the applicant’s request, one month after his arrival in Matīsa prison he was placed in an individual cell. The applicant remained in Matīsa prison until his release upon having served his sentence on 8 January 2009. 9. The applicant alleges that his cellmates and also the chaplain at Pārlielupe prison ridiculed him because of his religious beliefs. He furthermore alleges that he was prevented from adequately performing the fundamental rituals of Vaishnavism (the Hare Krishna movement). 10. On 19 May 2005 the applicant complained about the purported infringements of his religious freedoms to the Directorate of Religious Affairs (Reliģijas lietu pārvalde) of the Ministry of Justice. In particular he complained that the chaplain of Pārlielupe prison had described the Hare Krishna movement as a “satanic” religion. He also pointed out that he was not receiving the same level of spiritual support as the prisoners belonging to the Christian faith. 11. On 8 June 2005 the applicant submitted a request to the governor of Pārlielupe prison. He explained that in prison he worked as a cobbler. Part of his earnings he had to spend to buy food in the prison store, since his religion did not allow him to eat some of the food served by the prison canteen. He furthermore complained that in his cell he was unable to read religious writings because of his cellmates’ tendency to discuss their immoral lifestyles by using countless swear words. He invoked Articles 9 and 14 of the Convention and requested to be placed in a separate (individual) cell. It appears that he did not receive any written response. 12. In a letter from the Directorate of Religious Affairs of 20 June 2005 the applicant was informed that his religious rights were being respected “in so far as it was possible”. He was furthermore informed that a Christian education programme was operating in Pārlielupe prison. 13. On 27 June 2005 the applicant complained to the Prison Administration (Ieslodzījuma vietu pārvalde) of being mocked and humiliated by the prison staff and his fellow prisoners because of his religious beliefs. He invoked Articles 9 and 14 of the Convention and complained that the circumstances in his cell and the negative attitude of his cellmates prevented him from devoting himself to meditation and studies of Vaishnavism. 14. On 15 July 2005 the deputy governor of the Prison Administration replied to the applicant by explaining that it was not appropriate to perform religious rituals in a common cell, since it might disturb other prisoners. However, the applicant was informed that the administration of the prison would set aside a specific time for him to visit the prison chapel or another appropriate space so that he would be alone for praying, reading religious literature, and meditating. According to the applicant, that never happened. 15. On 16 November 2005 the deputy governor of the Prison Administration responded to an enquiry from the Ministry of Justice for information about the applicant. The letter referred to an unspecified prison where the applicant had been held and indicated, inter alia: “[the applicant’s] religious activities create tense situations. [The applicant] in the presence of other convicted persons in the residential areas regularly and openly performs religious rituals – singing, meditation, massages with oils and so on – thus disturbing the other convicted persons. Despite the fact that the administration of the prison indicated [to the applicant] that residential areas are not meant for carrying out religious activities and offered the use of another room for this purpose, [the applicant] refused and stubbornly continued to perform religious rituals in the residential areas. ... With his actions [the applicant] offends the honour and dignity of other convicted persons and creates a negative attitude towards himself.” 16. During a search of the applicant’s belongings at Matīsa prison on 20 January 2006 a guard found and confiscated some incense sticks. According to the applicant, the incense was necessary for him to perform the religious rituals of Vaishnavism. The record of the search contains a space for any objections that the prisoner might have. The applicant signed the record but the space for objections was left blank. 17. On 13 June 2007 the Prison Administration wrote to the president of the Rīga Chapter of the International Society of Krishna Consciousness asking for an explanation of certain religious rituals that several prisoners had sought to perform in prisons. Namely, the Prison Administration wished to ascertain whether Vaishnavism required a twice-daily loud chanting of mantras for fifteen minutes. The president of the Rīga Chapter responded on 28 June 2007. He explained that there existed two methods for praying to Krishna. The first – japa – involves the repetition of a mantra in a soft voice by using prayer beads. The second – kirtan – is chanting of the Hare Krishna mantra at a regular volume. Typically kirtan is performed by a group of devotees as a form of a religious service. It appears that both forms of prayer are equally acceptable. 18. At the request of the Agent of the Government, on 2 November 2007 the Directorate of Religious Affairs provided certain information concerning the organisation of religious life in prisons, about the applicant’s complaints received by the Directorate, and concerning certain specific aspects of Vaishnavism. Concerning the latter, members of the Rīga congregation had explained to representatives of the Directorate that some of the basic rituals of Vaishnavism were the burning of incense sticks, a daily washing, a special diet, studies of religious writings, and meetings with other followers of Vaishnavism. The obligation to observe those rituals was, however, conditional. For instance, if circumstances did not permit it, the burning of incense sticks was not mandatory. According to the members of the congregation, in a prison environment it would recommendable for a follower of Vaishnavism to be placed in a single cell, since the observance of the religious rituals in a shared cell could incite a negative attitude among other prisoners. Concerning religious literature, the members of the congregation affirmed that upon request religious writings could and would be sent to inmates. Lastly, concerning the dietary requirements it was emphasised that the ban on eating meat products was particularly significant for followers of Vaishnavism. 19. On 1 September 2005 the applicant refused to stay in his wing of Jēkabpils prison. He submitted a written statement to the Prison Administration, in which he requested to be moved to Jelgava prison and explained that he was in danger in Jēkabpils prison. According to the applicant, he orally informed the representatives of the administration of Jēkabpils prison that on that day he had been beaten by other prisoners. He also complained that the smallest detention wing that had been offered to him held forty other prisoners. 20. On the same day the administration of Jēkabpils prison took a written statement from several prisoners saying that the applicant had not been subjected to physical or mental harassment and that he had not had any conflicts with any of the inmates. Two hours after the applicant had refused to return to his wing he was seen by a medical assistant (feldšere) who examined him and did not find any bruises on his body. The relevant excerpt from the applicant’s medical record reads as follows: “At 15.40 brought for examination due to bodily injuries. Does not have any complaints. According to the prisoner, there is no need for a medical examination. Body examined in its entirety. Concl[usion]: No bruises or subcutaneous haematomas have been observed.” The applicant received a disciplinary penalty in the form of seven days’ detention in a punishment cell for the refusal to return to his wing. 21. On 5 September 2005 the applicant was moved to a different wing of Jēkabpils prison where the prisoners are placed in cells (as opposed to dormitories in the rest of the prison). 22. On 10 and 13 October 2005 the applicant submitted complaints to the Specialised Public Prosecutor’s Office (Specializētā vairāku nozaru prokuratūra). He stated that in Jēkabpils prison he had been beaten by “Russian speakers” who had been incited to do so by one of the wardens. The applicant asked to be moved to Matīsa prison because he felt threatened in all the other prisons in Latvia. 23. The applicant’s complaint was forwarded to the Prison Administration, which on 28 October 2005 refused to initiate criminal proceedings concerning the applicant’s alleged beating in Jēkabpils prison. An inspector of the Prison Administration took into account written reports that had been drawn up by the administration of Jēkabpils prison and written statements from the applicant’s cellmates. It was found that all the information in the file consistently pointed to the conclusion that the applicant had not been attacked by anyone. 24. On 14 November 2005 the applicant appealed to the Specialised Public Prosecutor’s Office for Organised Crime and Other Offences (Organizētās noziedzības un citu nozaru specializētā prokuratūra) against the Prison Administration’s refusal to initiate criminal proceedings. He named two prisoners who had allegedly beaten him and complained that the investigator of the Prison Administration had not questioned them. He furthermore pointed out that immediately after his arrival at Jēkabpils prison as well as on 31 August 2005 he had complained to representatives of the administration that he was threatened by other inmates, yet no action had been taken. The applicant noted that the prisoners who had been questioned by the investigator of the Prison Administration had been the ones friendly to him and that there had been no reason to question them in relation to his alleged beating. Concerning his medical examination on 1 September 2005 the applicant submitted that the medical assistant had observed him “while holding a cup of coffee in her hands”. She had declared that the applicant had a “red head” and had only noticed a scratch on his skin when the applicant himself had pointed it out. The medical assistant had refused to give any treatment for the scratch or for the applicant’s headache and had not even recorded his complaints. 25. On 28 November 2005 his appeal was rejected by a senior prosecutor of the Specialised Public Prosecutor’s Office. In reply to the applicant’s complaint that the investigator of the Prison Administration had not questioned the two inmates whom he had singled out as being responsible for his beating, the prosecutor explained that persons could be questioned only after criminal proceedings had been initiated. Considering that, in the absence of any recorded injuries, there was no reason to initiate criminal proceedings concerning the applicant’s alleged beating, the two prisoners named by the applicant could not be questioned. 26. On 1 December 2005 the applicant appealed against the reply of 28 November 2005. He essentially repeated the arguments that had been set out in his previous complaints, namely, that he had identified by name a prisoner who had threatened and then beaten him, yet that person had never been questioned and that his medical examination on 1 September 2005 had been very superficial. 27. In a final decision of 14 December 2005 another senior prosecutor of the Specialised Public Prosecutor’s Office for Organised Crime and Other Offences rejected the applicant’s complaint. The response was essentially identical to the previous ones given to the applicant but also added that the “lodging of complaints is to be seen as a counteraction against the administration of the prison and against prisoners negatively disposed towards [the applicant]”. 28. On 12 February 2004 the Criminal Law was amended. Among other things, the minimum prison term for robbery was reduced. The applicant wrote numerous letters to the Supreme Court and to prosecutors requesting that his sentence be reduced. He received an explanation that the transitional provisions concerning the entry into force of the amendments to the Criminal Law provided that the reduction in the minimum term of imprisonment was not applicable to persons sentenced prior to 1 January 2005, the date when the amendments to the law came into effect. The applicant’s subsequent attempts to appeal to the Constitutional Court remained unsuccessful. 29. Also in 2005 the applicant enquired with the State authorities about the possibility of changing his Russian-sounding surname (Kovaļkovs) to the surname which he had had until the age of five (Bite). He received a response stating that under the law he could not change his name before his criminal record was expunged. 30. In a letter of 7 March 2006 which was addressed to the Human Rights Bureau (Cilvēktiesību birojs) the director of the Prison Administration described the applicant’s personal situation and characterised the applicant in negative terms. The applicant subsequently sought in vain to initiate criminal proceedings for defamation against the director of the Prison Administration. In July 2006 the applicant requested State-granted legal aid in order to lodge a civil claim for damages against the director of the Prison Administration. On 9 July 2006 the Legal Aid Administration (Juridiskās palīdzības administrācija) rejected the applicant’s request for the reason that the law did not provide for legal aid for such claims. The claim which had been drafted by the applicant himself was not accepted by the Rīga City Latgale District Court for procedural reasons. The final decision in that regard was adopted on 14 September 2006. 31. On 1 November 2007 (after the case had been communicated to the Government) a psychiatrist issued a one-paragraph report on the applicant’s mental health, finding him to be a querulent personality with a tendency to misinterpret other people’s actions towards him as hostile or dismissive and to “aggressively exaggerate his rights by incessantly writing unsubstantiated complaints”. 32. Article 461 of the Sentence Enforcement Code (Sodu izpildes kodekss), as in force at the relevant time, provided for the existence of a chaplaincy service in prisons and indicated that the prisoners’ meetings with clerics and their participation in “moral development activities” were to be regulated by the Internal Rules of Order of an Institution of Deprivation of Liberty, which were contained in regulations of the Cabinet of Ministers. 33. As in force until 3 June 2006, Regulation of the Cabinet of Ministers no. 73 (2002) provided in paragraph 36 that the chaplains and other staff members of prisons were to organise “moral development activities”, such as lectures, educational talks and musical performances. The “moral development” also included religious events organised by chaplains, such as studies of religious literature, services, sacraments and other ceremonies. It was also noted that “convicted persons shall have the opportunity to educate themselves individually”. Paragraph 37 provided that with the permission of the prison governor or of the director of the Prison Administration “representatives of registered religious and public organisations” could be involved in the organisation of the educational activities for prisoners. 34. Paragraph 46 of the Regulation provided that convicts could only keep a limited selection of objects in their cells, which was exhaustively listed in amendment no. 3 to that Regulation. The list in the amendment did not include incense sticks. 35. On 3 June 2006 the previous Regulation was replaced by Regulation of the Cabinet of Ministers no. 423 (2006). Paragraph 35 of the new Regulation provides that the spiritual care of convicted persons is to be organised or performed by chaplains. Paragraph 39 provides that “[o]nly the religious organisations listed in the normative acts concerning the chaplaincy service shall be authorised to distribute religious literature in prisons”. 36. At the relevant time the chaplains’ work in prisons was regulated by Regulation of the Cabinet of Ministers no. 277 (2002), entitled “Regulations on the Chaplaincy Service” (Noteikumi par kapelānu dienestu). The second paragraph of the Regulation provided that chaplains were responsible for ensuring respect for freedom of religion in, among other institutions, prisons. Paragraph 3 provided that chaplains were nominated by the leaders of the Lutheran, Catholic, Orthodox, Old Believer, Methodist, Baptist, Seventh-day Adventist, Jewish, and Pentecostal denominations. 37. Paragraph 15 of Regulation no. 277 specified that chaplains were to ensure the spiritual care of prisoners, to lend them moral support and to give them consultations concerning questions of religion and ethics when necessary. According to the information furnished by the Directorate of Religious Affairs the chaplaincy service was ecumenical. Prison chaplains were obliged to provide spiritual support to all prisoners, irrespective of their faith, or, should that prove to be impossible, they could invite representatives of the respective religious movement to assist them in their work. Since 31 March 2006 those principles have been specifically laid down in an internal instruction of the Prison Administration entitled the Regulation on the Prison Chaplaincy Service (Ieslodzījuma vietu kapelānu dienesta reglaments). 38. In addition, Regulation no. 423 provided that convicted persons could only keep a limited selection of objects in their cells, which was exhaustively listed in amendment no. 1 to that Regulation. The list in the amendment did not include any objects of a religious character, although some of the objects, such as books, photographs and headwear could have religious significance. 39. In 2010 the constitutionality of amendment no. 1 to Regulation no. 423 was challenged in the Constitutional Court. In a judgment of 18 March 2011 in case no. 20105003 the Constitutional Court declared amendment no. 1, in so far as it did not allow the storage of religious objects, unconstitutional and void as of 1 October 2011. 40. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member states on the European Prison Rules, which lay down the following guidelines: “Freedom of thought, conscience and religion 29.1 Prisoners’ freedom of thought, conscience and religion shall be respected. 29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.”