Lietuviškai
Case No. 3/01
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 41 OF
THE CODE OF CORRECTIONAL LABOUR OF THE REPUBLIC OF
LITHUANIA (WORDING OF 2 JULY 1997) WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
24 March 2003
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis and Vytautas Sinkevičius,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Mindaugas Girdauskas, a
senior consultant to the Legal Department of the Office of the
Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 18 March
2003 in its public hearing heard Case No. 3/01 which originated
in a petition of the Vilnius Regional Administrative Court
requesting to determine as to whether Paragraph 2 of Article 41
of the Code of Correctional Labour of the Republic of Lithuania
(wording of 2 July 1997) stipulating that the correspondence of
convicts must be censored was not in conflict with Article 22
of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner, the Vilnius Regional Administrative Court,
was investigating an administrative case. The said court
suspended the investigation of the case by its ruling and
applied to the Constitutional Court with a petition requesting
to determine as to whether Paragraph 2 of Article 41 of the
Code of Correctional Labour of the Republic of Lithuania
(hereinafter also referred to as the CCL) (wording of 2 July
1997) (Official Gazette Valstybės žinios, 1997, No. 67-1663)
stipulating that the correspondence of convicts must be
censored, however, not demanding that the censorship procedure
be confirmed, was not in conflict with Article 22 of the
Constitution.
II
The request of the petitioner is based on the following
arguments.
The private life of a human being shall be inviolable.
Personal correspondence and other communications shall be
inviolable. Information concerning the private life of a person
may be collected only upon a justified court decision and only
in accordance with the law (Article 22 of the Constitution).
In the opinion of the petitioner, the private life of a
human being is the right of each individual to live the way he
wishes and to be protected from arbitrary interference into his
private life, and from giving publicity to this life.
The petitioner maintains that the laws establish an
opportunity to restrict the right of some persons to the
inviolability of private life. This can be done under Paragraph
2 of Article 41 of the CCL (wording of 2 July 1997). However,
the petitioner doubts as to whether the provision of Paragraph
2 of Article 41 of the CCL (wording of 2 July 1997) that "the
correspondence of convicts must be censored", in the absence of
the procedure established by laws and substatutory acts, does
not infringe the right of convicts to the inviolability of
private life.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned, the
Seimas, who were M. Girdauskas and P. Griciūnas, senior
consultants to the Legal Department of the Office of the
Seimas.
It is maintained in the explanations that correspondence
may be defined as written exchange of information between
persons or between persons and organisations. Under the
Constitution, the privacy of correspondence is incompatible
with control and censorship. However, this norm is not
absolute. In the cases provided for by law, censorship of
correspondence of the persons in whose respect a special regime
is applied is possible. This is established in the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter also referred to as the Convention) as
well as the Universal Declaration of Human Rights.
In the opinion of M. Girdauskas and P. Griciūnas, the
disputed provision of Paragraph 2 of Article 41 of the CCL
(wording of 2 July 1997) must be construed inseparably from
other provisions of the CCL. The CCL specifies the persons to
whom the restrictions of correspondence are applied, the manner
of restriction of the inviolability of private life, the
entities who apply these restrictions, and the time period
during which the restrictions of correspondence may be applied
(Paragraph 3 of Article 49 of the CCL), as well as the
exception to the application of these restrictions (Paragraph 2
of Article 50 of the CCL). In the opinion of the
representatives of the party concerned, this permits to believe
that, while applying the disputed provision of Article 41 of
the CCL the right of a person to the inviolability of private
life is restricted according to the procedure established by
law. This corresponds to the requirements of Paragraphs 3 and 4
of Article 22 of the Constitution applicable for restriction of
the discussed right of persons to privacy.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, explanations were received from
K. Milkeraitis, the then Seimas controller, G. Švedas,
Vice-minister of Justice, J. Dubinienė, Director of the Legal
Department of the Office of the Republic of Lithuania
Government, S. Agurkis, the then acting Director of the Prison
Department at the Ministry of Justice of the Republic of
Lithuania, J. Jasaitis, Head of the Inspector General
Department of the Ministry of the Interior of the Republic of
Lithuania, J. Dermontas, Head of the Department of Penitentiary
Law and Activities of the Faculty of Social Work of the Law
University of Lithuania, M. N. Bikauskienė, Chairwoman of the
Human Rights Association of Lithuania.
V
At the Constitutional Court hearing, the representative of
the party concerned M. Girdauskas virtually reiterated the
arguments set down in the written explanations.
The Constitutional Court
holds that:
1. Paragraph 2 of Article 41 of the Code of Correctional
Labour (wording of 2 July 1997) used to stipulate: "The
convicts shall be searched. Body search of the convicts shall
be conducted by persons of the same gender as the searched. The
correspondence of convicts shall be censored, while packages
and wrappers shall be examined."
It is clear from the arguments of the petition that the
petitioner, the Vilnius Regional Administrative Court, doubts
whether the provision of Paragraph 2 of Article 41 of the CCL
(wording of 2 July 1997) that "the correspondence of convicts
shall be censored" is not in conflict with Article 22 of the
Constitution.
2. After Paragraph 2 of Article 41 of the CCL (wording of
2 July 1997) had been amended by Article 4 of the Law on the
Amendment and Supplement of Articles 27, 29, 33, 41, 43, 451,
49, 52, 72, 721, 73, 77, 80, 81, 82, 831, and Recognition of
Articles 471, 581, 79 of the Code of Correctional Labour of the
Republic of Lithuania as no Longer Valid, which was adopted by
the Seimas on 5 July 2001, it established: "The convicts shall
be searched. Body search of the convicts shall be conducted by
persons of the same gender as the searched. The correspondence
of convicts, except for the cases indicated in Paragraphs 2 and
3 of Article 50 of this Code, may be censored only upon the
decision of the prosecutor or the director of the
establishment, or a ruling of the court (judge). Parcels,
packages and wrappers must be examined."
Thus, the provision "the correspondence of convicts must
be censored" of Paragraph 2 of Article 41 of the CCL (wording
of 2 July 1997), which is disputed by the petitioner, was
amended by the said law and set forth as follows: "The
correspondence of convicts, except for the cases indicated in
Paragraphs 2 and 3 of Article 50 of this Code, may be censored
only upon the decision of the prosecutor or the director of the
establishment, or a ruling of the court (judge)." (Paragraph 2
of Article 41 of the CCL (wording of 5 July 2001.))
3. Paragraph 1 of Article 110 of the Constitution provides
that a judge may not apply a law, which is in conflict with the
Constitution. Under Paragraph 2 of Article 110 of the
Constitution, in cases when there are grounds to believe that
the law or other legal act applicable in a concrete case is in
conflict with the Constitution, the judge shall suspend the
consideration of the case and shall apply to the Constitutional
Court requesting it to decide whether the law or other legal
act in question is in compliance with the Constitution.
According to the Constitution, only the Constitutional Court
shall decide whether the laws and other acts adopted by the
Seimas are not in conflict with the Constitution, and whether
acts of the President of the Republic and the Government are
not in conflict with the Constitution or laws (Paragraph 1 of
Article 102).
These constitutional provisions mean that in cases when
the Constitutional Court is applied to by a court which
considers a case and which has doubts as to the compliance of
the law applicable in the case with the Constitution, also that
of other act adopted by the Seimas, the President of the
Republic or the Government with the Constitution or laws, the
Constitutional Court is obliged to investigate the request of
the court irrespective of the validity of the disputed law or
other legal act (Constitutional Court rulings of 21 August 2002
and 4 March 2003).
If the Constitutional Court did not decide concerning the
request in essence, the doubts of the Vilnius Regional
Administrative Court arising during the consideration of the
case as to the compliance of the disputed provision of
Paragraph 2 of Article 41 of the CCL (wording of 2 July 1997)
with the Constitution, would not be eliminated. If the doubts
were not eliminated, the application of the disputed provision
of Paragraph 2 of Article 41 of the CCL (wording of 2 July
1997) could violate constitutional rights of the person.
4. Article 22 of the Constitution provides:
"The private life of a human being shall be inviolable.
Personal correspondence, telephone conversations,
telegraph messages, and other communications shall be
inviolable.
Information concerning the private life of a person may be
collected only upon a justified court decision and only in
accordance with the law.
The law and the court shall protect everyone from
arbitrary or unlawful interference in his private and family
life, from encroachment upon his honour and dignity."
4.1. The Constitution provides that the private life of a
human being is the personal life of an individual: way of life,
marital status, living surroundings, relations with other
people, views, convictions, habits of the individual, his
physical and psychological state, health, honour, dignity, etc.
The inviolability of the private life of a human being
established in Article 22 of the Constitution presupposes the
right of a person to privacy. The right of a human being to
privacy encompasses the inviolability of private, family and
house life, physical and psychological inviolability of a
person, secrecy of personal facts and prohibition to publicise
received or collected confidential information etc.
(Constitutional Court rulings of 21 October 1999, 8 May 2000,
19 September 2002 and 23 October 2002).
4.2. The human right to privacy is not an absolute one.
According to the Constitution, it is permitted to restrict the
constitutional human rights and freedoms in case the following
conditions are observed: this is done by law; the restrictions
are necessary in a democratic society in attempt to protect the
rights and freedoms of other persons and the values entrenched
in the Constitution as well as the constitutionally important
objectives; the restrictions do not deny the nature and essence
of the rights and freedoms; the constitutional principle of
proportionality is followed (Constitutional Court rulings of 19
September 2002 and 23 October 2002).
4.3. The legal concept of the private life is linked with
legitimate expectations of the private life of the person. If a
person commits criminal deeds or those contrary to law,
violates the interests protected by law, inflicts damage on
particular persons, society or the state, he is aware or must
and can be aware of the fact that this will cause corresponding
reaction of state institutions and that for the breach of law
being committed (or already committed) the state may apply
force measures and that by such measures his behaviour will be
influenced in a certain way. It needs to be noted that a person
who has committed a criminal deed cannot and may not expect
that the protection of his private life will be the same as
that of the persons observing the laws.
4.4. It also needs to be noted in the context of the case
at issue that Article 22 of the Constitution should be
construed while taking account of Articles 20, 31 and 109 of
the Constitution.
Paragraph 1 of Article 20 provides that the freedom of a
human being shall be inviolable. Under Paragraph 2 of this
article, no one may be deprived of his freedom otherwise than
on the grounds, and in accordance with the procedures, which
have been established by law.
A person who has committed a criminal deed may be imposed
a sentence of imprisonment. It must be established in law.
Under Paragraph 4 of Article 31 of the Constitution, punishment
may be imposed or applied only on the grounds established in
law. In the Republic of Lithuania, justice shall be
administered solely by courts (Paragraph 1 of Article 109 of
the Constitution). Punishment may be imposed only on the
grounds of a court sentence.
Thus, the Constitution provides that the freedom of the
person who has committed a crime may be restricted on the
grounds and according to the procedure established by laws.
Upon restriction of the freedom of such a person, his rights
and freedoms may be restricted, the inviolability of
correspondence amongst them.
4.5. The persons sentenced to a term of imprisonment are
isolated from the society at the establishments of
imprisonment, in which their behaviour is under control, the
convicts may be searched, their correspondence may be censored,
etc. The restrictions which are applied to the convicts are
objective elements of the contents of imprisonment, since
imprisonment would lose its sense without them. Thus,
censorship of correspondence of convicts is permitted in the
establishments of imprisonment, because it constitutes a means
of control of the behaviour of convicts. According to the
Constitution, the grounds and procedure of censorship of
correspondence of convicts, as one of the elements of the
contents of the imprisonment sentence, must be established by
law.
Under the Constitution, a person shall be declared guilty
of commission of a crime and sentenced only by an effective
court judgement. This court judgement empowers the institutions
which execute sentences and supervise the lawfulness of
sentence execution to apply to a convict restrictions of rights
and freedoms, which are associated to the type of punishment
imposed upon him, including censorship, on the grounds
established by law and observing the procedure provided by law,
of correspondence of the person sentenced to a term of
imprisonment.
4.6. While establishing legal regulation restricting human
rights and freedoms of the persons sentenced to a term of
imprisonment, as well as their right to the inviolability of
correspondence, the legislator is bound by the Constitution.
According to the Constitution, only law specifying the grounds
and procedure of such restriction may restrict the right of the
convicts to the inviolability of correspondence. The
restriction should not violate the reasonable relation between
the adopted means and sought legitimate and commonly important
objective. To attain this objective, the measures may be
established which would be sufficient and which would restrict
the rights of the person not more than it is necessary
(Constitutional Court rulings of 6 December 2000 and 2 October
2001). The Constitutional Court has noted that the protection
of common interests in a democratic state under the rule of law
may not deny a concrete human right in general and that
established and applied restrictions may not violate the
essence of a respective human right (Constitutional Court
ruling of 9 December 1998).
5. The right of a human being to the inviolability of
private life is also established by international legal acts.
5.1. Article 12 of the Universal Declaration of Human
Rights declares: "No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence,
nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or
attacks."
Article 8 of European Convention for the Protection of
Human Rights and Fundamental Freedoms provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the
interests of the national security, public safety or the
economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or
for the protection of rights and freedoms of others."
6. The European Court of Human Rights, while investigating
cases and interpreting Article 8 of the Convention, has
formulated the following essential provisions on the
restriction of the secrecy of correspondence.
The punishment of imprisonment is certainly related to the
restriction of rights and freedoms provided by the Convention
(European Court of Human Rights, judgment in the case De Wilde,
Ooms and Versyp v. Belgium of 18 June 1971, Series A No. 12).
The grounds for interference of public officials with the
privacy of correspondence must be established by the laws;
these laws must be accessible. The privacy of correspondence
may be restricted if it is necessary in a democratic society
for attainment of a legitimate objective (for instance,
"maintenance of order", "prevention of criminal offences",
"protection of morals", "protection of rights and freedoms of
other persons"). Interference with the privacy of
correspondence must be predetermined by "social imperatives",
it must be "proportionate to the sought objective", there may
not be "disproportionate limitation of the freedom of
correspondence" (European Court of Human Rights, judgment in
the case Silver and others v. United Kingdom of 25 March 1983,
Series A No. 61; European Court of Human Rights, judgment in
the case Valašinas v. Lithuania of 24 July 2001; European Court
of Human Rights, judgment in the case Puzinas v. Lithuania of
14 March 2002).
Laws must establish the duration of censorship of
correspondence of convicts and the reasons which serve as the
grounds for the adoption of the decision to censor it,
sufficiently clearly indicate the limits of actions of public
institutions which censor correspondence and/or ways for their
performance (European Court of Human Rights, judgement in the
case Messina v. Italy of 28 September 2000, Report of judgments
and decisions 2000-X). In the case Niedbala v. Poland the
European Court of Human Rights noted that laws may not
establish the obligatory (necessary) censorship of all the
correspondence of convicts. Laws must specify the ways of the
censorship of the correspondence of convicts and the time
period during which the correspondence has to be examined
(European Court of Human Rights, judgment in the case Niedbala
v. Poland of 4 July 2000).
Therefore, according to Paragraph 2 of Article 8 of the
Convention, restrictions of the privacy of correspondence must
be established by law, they must be necessary in a democratic
society in attempt to protect the rights and freedoms of other
persons as well as public interests, the restrictions may not
overstep reasonable limits and negate the essence of the
restricted rights. Only such restriction of this right, which
is necessary to attain the objectives provided for in Paragraph
2 of Article 8 of the Convention, is possible.
The Constitutional Court has noted that the jurisprudence
of the European Court of Human Rights as a source of
construction of law is also important to construction and
applicability of Lithuanian law (Constitutional Court rulings
of 8 May 2000 and 10 May 2001).
7. It has been mentioned that Paragraph 2 of Article 41 of
the CCL (wording of 2 July 1997) established the provision "the
correspondence of convicts must be censored". It needs to be
noted that Paragraph 2 of Article 50 of the CCL (wording of 15
July 1971) established that proposals, applications and
complaints addressed to the prosecutor shall not be censored
and shall be forwarded within 24 hours from the moment they
have been received. According to Paragraph 2 of Article 50 of
the CCL (wording of 3 June 1999), proposals, applications and
complaints addressed to the prosecutor, state institutions and
the European Court of Human Rights shall not be censored and
shall be forwarded within 24 hours from the moment they were
received.
Therefore, according to Paragraph 2 of Article 41 of the
CCL (wording of 2 July 1997), all the correspondence of the
persons serving the sentence of imprisonment, except for the
cases specified in Paragraph 2 of Article 50 of the CCL, had to
be censored irrespective of the fact whether such restriction
of the inviolability of correspondence was necessary in a
democratic society and without consideration of the sought
objective and whether such restriction was proportionate to the
sought objective.
Thus, the legal regulation of the censorship of the
correspondence of convicts established in Paragraph 2 of
Article 41 of the CCL (wording of 2 July 1997) created
pre-conditions for violation of the constitutional right of a
person to the inviolability of correspondence.
8. Taking account of the arguments set forth, one is to
conclude that the provision "the correspondence of convicts
must be censored" of Paragraph 2 of Article 41 of the CCL
(wording of 2 July 1997) to the extent that it established
obligatory censorship of the correspondence of persons serving
a sentence of imprisonment without providing by law the grounds
for such censorship was in conflict with Article 22 of the
Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
To recognise that the provision "the correspondence of
convicts must be censored" of Paragraph 2 of Article 41 of the
Code of Correctional Labour of the Republic of Lithuania
(wording of 2 July 1997) to the extent that it established
obligatory censorship of the correspondence of persons serving
a sentence of imprisonment without providing by law the grounds
for such censorship was in conflict with Article 22 of the
Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius