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THIRD
SECTION
DECISION
Application no. 35021/05
Gatis KOVAĻKOVS
against Latvia
The
European Court of Human Rights (Third Section), sitting on
31 January 2012 as a Chamber composed of:
Josep
Casadevall, President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 21 September 2005,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- 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.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The background
- 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.
- 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.
- 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.
2. The applicant’s transfers between prisons
- 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”.
- On
7 October 2005 the applicant was transferred to Valmiera prison.
- 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.
3. The applicant’s religion
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
4. The events of 1 September 2005 and the
subsequent investigation
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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]”.
5. Other events
- 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.
- 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.
- 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.
- 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”.
B. Relevant domestic law and Council of Europe
documents
- 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.
- 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.
- 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.
- 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”.
- 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.
- 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).
- 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.
- 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. 2010 50 03
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.
- 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.”
COMPLAINTS
- Without
invoking any specific articles of the Convention the applicant
complained that he had been beaten by other inmates in Jēkabpils
prison and that the domestic authorities had refused to initiate
criminal proceedings in that regard.
- The
applicant complained of repeated violations of
his freedom of religion. He relied on Article 9
of the Convention.
- The
applicant further complained of discrimination
based on his religious beliefs. He relied on
Article 14 of the Convention in conjunction with Article 9 of the
Convention and on Article 1 of Protocol No. 12.
- Lastly,
without invoking any particular Articles of the Convention, the
applicant complained about the impossibility to
use the Latvian language in communication with other prisoners as
well as with certain members of the administrations of the prisons
where he had been detained; about the impossibility to benefit from a
retroactive application of the amendments to the Criminal Law; about
the impossibility to change his name from Kovaļkovs to Bite;
about the impossibility to start civil proceedings for defamation
against the director of the Prison Administration; and, lastly, about
the general situation of Latvian-speaking prisoners in Latvian
prisons.
THE LAW
A. Article 3 of the Convention
- The
applicant’s complaints that he had been beaten by other inmates
in Jēkabpils prison and that the domestic authorities had
refused to initiate criminal proceedings in that regard were
communicated to the respondent Government under the substantive and
procedural limbs of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government argued that the applicant had not complained about the
actions of State agents or persons acting on their behalf. For that
reason the State could not be held responsible for his alleged
beating.
- The
Court observes that according to its constant case-law the obligation
on the High Contracting Parties under Article 1 of the Convention to
secure to everyone within their jurisdiction the rights and freedoms
defined in the Convention, taken together with Article 3, requires
States to take measures designed to ensure that individuals within
their jurisdiction are not subjected to ill-treatment administered
not only by State agents but also by private individuals (see Z
and Others v. the United Kingdom [GC], no. 29392/95, § 73,
ECHR 2001 V). In the case of prisoners, the Court has
consistently stressed that the Contracting States must ensure that a
person is detained in conditions which are compatible with respect
for his human dignity, that the manner and method of the execution of
the measure do not subject him to distress or hardship of an
intensity exceeding the unavoidable level of suffering inherent in
detention and that, given the practical demands of imprisonment, his
health and well-being are adequately secured (see Kudła v.
Poland [GC], no. 30210/96, §§ 93-94, ECHR
2000-XI). It follows that the State was under an obligation to secure
the applicant’s health and well-being, including against
attacks from other prisoners.
- In
so far as the applicant’s complaint of the inadequacy of the
investigation into the alleged attack against him is concerned, the
responsibility of the domestic authorities is engaged directly.
Accordingly, the objection of the Government concerning the
non-attribution of the applicant’s complaints to the State is
dismissed.
- The
applicant argued that he had been beaten and
that the investigation had been defective because the persons
responsible for the beating had not been questioned.
- The
Government emphasised that the swift and thorough preliminary
investigation into the applicant’s complaints had proven that
those complaints were not true and were not supported by appropriate
evidence. The evidence that was available did not disclose that the
minimum level of severity of ill-treatment necessary for it to fall
within the scope of Article 3 had been attained in the present case.
The Government furthermore insisted that the national authorities had
done their utmost to ensure that the conditions of the applicant’s
imprisonment had been safe (referring to the applicant’s
transfers between different prisons). Lastly it was pointed out that
the applicant’s difficult relations with other prisoners had
been provoked by his own actions.
- The
Court reiterates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative; it depends on all the
circumstances of the case, such as the nature and context of the
treatment, its duration, its physical or mental effects and, in some
instances, the sex, age and state of health of the victim (among many
other examples, see T. v. the United Kingdom [GC],
no. 24724/94, § 68, 16 December 1999).
- The
Court further points out that when assessing evidence concerning
alleged ill-treatment in violation of Article 3 of the Convention it
has generally applied the standard of proof “beyond reasonable
doubt” (see, among others, Farbtuhs
v. Latvia, no. 4672/02, § 54,
2 December 2004). Such proof may, however, follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Ireland
v. the United Kingdom, 18 January 1978, § 161 in
fine, Series A no. 25, and Gharibashvili v. Georgia,
no. 11830/03, § 56, 29 July 2008).
- Turning
to the circumstances of the present case, the Court notes that the
only proof available to it concerning the applicant’s alleged
ill-treatment consists of the applicant’s own assertions and an
excerpt from his medical record (see above, paragraph 20). The
applicant’s submissions are not detailed or precise. He alleges
to have been beaten by two other prisoners. Yet he has not provided
any details concerning the nature of the blows he allegedly received
such as the number of blows and the body parts struck. Even if it
were to be assumed that the excerpt from the applicant’s
medical record does not fully and adequately describe his actual
state of health after the alleged beating, the only discrepancies
pointed out by the applicant in his submissions to the domestic
authorities are that the medical assistant had orally told him that
he had a “red head” and that the applicant himself had
had to point out a scratch on his skin which was then not noted in
his medical record (see above, paragraph 24). In those circumstances,
after reviewing the material in its possession,
the Court cannot consider the applicant’s impugned
ill-treatment in custody an established fact “beyond reasonable
doubt”. Accordingly the applicant’s complaint about the
alleged violation of the substantive aspect of Article 3 of the
Convention is manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention.
- In
the light of its findings above the Court considers that the
applicant’s complaint of 1 September 2005 (see above,
paragraph 19) and his later complaints of 10 and 13 October
2005 (see above, paragraph 22) lacked details and credibility.
He did not make credible assertions of ill-treatment that would
entail a procedural obligation under Article 3 of the Convention
for the domestic authorities to investigate his allegations (see
Kuralić v. Croatia, 50700/07, §§ 29
and 36, 15 October 2009). Therefore his complaint
about the alleged violation of the procedural aspect of Article 3
of the Convention is also manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention.
- The
applicant’s complaints concerning Article 3 of the Convention
must therefore be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
Article 9 of the Convention
- The
applicant complained of repeated violations of
his freedom of religion. He relied on 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.”
- As
a preliminary issue the Court takes note of the Government’s
argument that the applicant could not be considered a victim of the
alleged infringement of his freedom of religion, since he was not a
follower of Vaishnavism. The Government based their argument on the
fact that in 2004 the applicant had participated in a
distance-learning Bible study course. The Court takes this
opportunity to underline the fact that in no way can a person’s
choice to educate himself – be it on religious or other topics
– be objectively held to affect that person’s belief
system. The Government further referred to a letter of 8 November
2007 signed by the State Secretary of the Ministry of Justice which
included a statement that the applicant “currently does not
belong to the International Krishna Consciousness Society, does not
support it and does not propagate its beliefs”. Since that
statement is not supported by any evidence, the Court does not
consider it a reliable indicator of the applicant’s religious
leanings. Lastly, it has to be noted that none of the domestic
authorities to which the applicant addressed his complaints
concerning the alleged interference with his freedom of religion
appear to have questioned the genuineness of his faith. In principle,
the State’s duty of neutrality and
impartiality, as defined in the Court’s case-law (see, for
example, Miroļubovs and Others v. Latvia, no.
798/05, § 80, 15 September 2009), is
incompatible with any power on the State’s part to assess the
legitimacy of religious beliefs (ibid., and Leyla Şahin
v. Turkey [GC], no. 44774/98, § 107, ECHR 2005 XI)
The Court sees no reason to question the genuineness of the
applicant’s faith either. Therefore the Government’s
argument concerning the applicant’s victim status is dismissed.
- In his application to the Court the applicant
formulated his complaint under Article 9 in rather general terms. He
stated that he had been “denied the freedom of faith [and]
forbidden to devote [himself] to [his] religious convictions by
following religious customs”.
- The Court will focus its analysis on the supposed
restrictions of the applicant’s ability to follow the
fundamental requirements of Vaishnavism.
- Clearly, it is not the Court’s task to determine
what principles and beliefs are to be considered central to the
applicant’s religion or to enter into any other sort of
interpretation of religious questions (see the case-law references
above, paragraph 57). However, certain core principles emerge from
the applicant’s complaints to various domestic authorities and
to the Court as well as from the response given to the Prison
Administration by the president of the Rīga Chapter of the
International Society of Krishna Consciousness (see above, paragraph
17) and the information received from members of the Rīga
congregation and summarised by the Directorate of Religious Affairs
(see above, paragraph 18). In the light of that information, the
Court will concentrate on the applicant’s purported inability
to read religious literature, to meditate and to pray because of
being placed in a cell together with other prisoners and on the fact
that incense sticks were taken away from his cell. The Court
considers that the applicant’s wish to pray, to meditate, to
read religious literature and to worship by burning incense sticks
can be regarded as motivated or inspired by a
religion and not unreasonable (see Jakóbski v.
Poland, no. 18429/06, § 45, ECHR 2010 ...).
- The
Court notes that Article 9 of the Convention lists the various forms
which manifestation of one’s religion or belief may take,
namely worship, teaching, practice and observance (see
Jakóbski, cited above, § 44).
At the same time, it does not protect every act motivated or
inspired by a religion or belief (see Leyla Şahin,
cited above, § 78).
- The
Court views the applicant’s complaint that he was not placed in
a single cell or at least given access to a room where he could pray,
meditate and read religious literature undisturbed by other prisoners
from the standpoint of the respondent State’s positive
obligations (see, mutatis mutandis,
Jakóbski, cited above, § 46).
At the same time, the applicant’s complaint that incense sticks
were taken away from him pertains to the State’s obligation to
restrain from interference with the applicant’s right to
manifest his religion. However, for practical purposes, whether the
case is analysed in terms of a positive duty on the State to take
reasonable and appropriate measures to secure the applicant’s
rights under Article 9 § 1
or in terms of an interference by a public authority to be justified
in accordance with Article 9 § 2,
the applicable principles are broadly similar. In both contexts
regard must be had to the fair balance that has to be struck between
the competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of
appreciation in determining the steps to be taken to ensure
compliance with the Convention. Furthermore, even in relation to the
positive obligations flowing from the first paragraph of Article 9,
in striking the required balance the aims mentioned in the second
paragraph may be of certain relevance (Jakóbski,
cited above, § 47).
- The
Court is prepared to accept that there has been an interference with
the applicant’s rights under Article 9 on both counts. The
argument of the Government that the applicant’s demands should
not take precedence over the rights and needs of other prisoners
pertains more to the analysis of proportionality rather than to the
existence of an interference.
- The
Court, similarly to its approach in the above-cited Jakóbski
case, is also prepared to accept that financial implications for a
custodial institution which can have an indirect impact on the
quality of treatment of other inmates can serve as a legitimate aim,
namely, the protection of the rights and freedoms of others (cited
above, § 50). Another aspect to be taken into account in that
regard is other prisoners’ wish not to be disturbed by the
applicant’s performance of religious rituals. Concerning the
confiscation of the incense sticks, the legitimate aim is the
protection of the rights and freedoms of others and public safety by
limiting the types of objects that may be kept in prison cells.
- The
limitations of the applicant’s rights to manifest his religion
were also prescribed by law. Nothing in the legislation concerning
spiritual care in Latvian prisons (see above, paragraphs 32-39)
provided for a right to be placed in a single cell or to be
authorised to use other premises for praying, meditating or reading
religious literature. Regulation of the Cabinet of Ministers no. 73
(2002) (see above, paragraphs 33-34) did not include incense sticks
in the list of items authorised for storage in prison cells. The
Court reiterates that in 2011 a constitutional challenge by another
convicted person against the applicable legal regulation concerning
the storage of religious items in prison cells was successful and the
storage of such items is permitted as of 1 October 2011 (see
above, paragraph 39). However, at the time under review in the
present case the storage of such items was not authorised by law and
the applicant did not challenge this regulation in the Constitutional
Court.
- In
any event, taking into account the margin of appreciation left to the
States in guaranteeing the rights under Article 9 (see above,
paragraph 62), the Court considers that the impugned
restrictions of the applicant’s freedom of religion were
proportionate to the legitimate aims sought to be achieved for the
following reasons.
- As
regards the issue of the applicant’s wish to read religious
literature, to meditate and to pray in isolation from other
prisoners, what needs to be balanced is the degree of the
interference with the applicant’s right to manifest his
religion on the one hand and the rights of other prisoners on the
other hand. The Court also takes into account that it appears from
the documents submitted by the Government and it has not been
disputed by the applicant that on at least one occasion he had been
offered the use of alternative premises for performing religious
rituals and had refused to accept that offer (see above,
paragraph 15). The interference with the applicant’s right
is not such as to completely prevent him from manifesting his
religion. The Court considers having to pray, read religious
literature and to meditate in the presence of others is an
inconvenience, which is almost inescapable in prisons (see, mutatis
mutandis, Estrikh v. Latvia, no. 73819/01, §
166, 18 January 2007, and Golder v. the United Kingdom, 21
February 1975, § 45, Series A no. 18), yet which does not go
against the very essence of the freedom to manifest one’s
religion. In the circumstances where the prison authorities, on at
least one occasion, offered the applicant the use of separate
premises for performing religious rituals and the applicant refused
that offer without any apparent reason, the balance between the
legitimate aims sought to be achieved and the minor interference with
the applicant’s freedom to manifest his religion has clearly
been achieved.
- Concerning
the confiscated incense sticks, the Court does not consider it
necessary to examine whether the applicant has exhausted the domestic
remedies in the light of his failure to mount a constitutional
challenge against the applicable legal regulation concerning the
storage of religious items in prison cells (see above, paragraph 65),
since the applicant’s complaint is in any case manifestly
ill-founded, for the following reasons. The Court takes into account
the information provided to the Directorate of Religious Affairs by
members of the Rīga Vaishnavist congregation (see above,
paragraph 18). In particular, it notes that the obligation to observe
the religious tradition of burning incense sticks depends on the
circumstances of the person in question. The applicant did not
dispute that information. The Court further notes that the burning of
incense sticks typically creates a powerful odour which is not
pleasant to everyone and which might be disturbing to other
prisoners. Taking the above-mentioned considerations into account,
the Court considers that restricting the list of items permitted for
storage in prison cells by excluding items (such as incense sticks)
which are not essential for manifesting a prisoner’s religion
is a proportionate response to the necessity to protect the rights
and freedoms of others.
- The
applicant’s complaints concerning Article 9 of the Convention
are manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
C. Article 14 of the Convention
- The
applicant further complained of discrimination
based on his religious beliefs. He relied on
Article 14 of the Convention in conjunction with Article 9 of the
Convention and on Article 1 of Protocol No. 12. Since Latvia has
not ratified Protocol No. 12, the Court deems it appropriate to
view the applicant’s complaint of religious discrimination
under Article 14, which reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as [..] religion [..]”
- The
Government contested that argument.
- It
appears that the applicant’s complaint pertains to the fact
that one of the chaplains of Pārlielupe prison allegedly called
him a Satanist and described Vaishnavism as a satanic religion.
- The
Court has consistently held that Article 14 proscribes a
discriminatory difference in treatment between persons in analogous
or relevantly similar positions without a legitimate aim or in the
absence of a reasonable relationship of proportionality between the
means employed and the aim sought to be realised (see Van Raalte
v. the Netherlands, 21 February 1997, § 39, Reports
of Judgments and Decisions 1997 I; Larkos v. Cyprus
[GC], no. 29515/95, § 29, ECHR 1999 I; and Stec
and Others v. the United Kingdom [GC], no. 65731/01, § 51,
ECHR 2006 ...).
- In
the present case the applicant has not complained that he received
any different treatment from persons in relevantly similar positions.
It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
D. Other complaints
- Lastly,
without invoking any particular Articles of the Convention, the
applicant submitted numerous other complaints
(see above, paragraph 44).
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that these complaints are manifestly ill-founded and must be rejected
in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall Registrar President
