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On censorship of correspondence between convicts

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

The court reporter—Daiva Pitrėnaitė

Mindaugas Girdauskas, a senior consultant to the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, 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, considered case No. 3/01 subsequent to the petition of the Vilnius Regional Administrative Court requesting an investigation into 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 considering an administrative case. The said court suspended the consideration of the case by its ruling and applied to the Constitutional Court with the petition requesting an investigation into 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 petition 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 limit 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 law and substatutory act, 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’s 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 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 impugned 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 limitations on correspondence are applied, the manner of limitation on the inviolability of private life, the entities who apply these limitations, and the time period during which the limitations on correspondence may be applied (Paragraph 3 of Article 49 of the CCL), as well as the exception to the application of these limitations (Paragraph 2 of Article 50 of the CCL). In the opinion of the representatives of the party concerned, this allows one to believe that, while applying the impugned provision of Article 41 of the CCL, the right of a person to the inviolability of private life is limited 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 the limitation on the discussed right of persons to privacy.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, explanations were received from K. Milkeraitis, the then Seimas ombudsman, 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, Chairperson of the Human Rights Association of Lithuania.

V

At the Constitutional Court’s 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 impugned 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 petition of the court irrespective of the validity of the impugned law or other legal act (the Constitutional Court’s 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 impugned 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 impugned 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: the 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 a prohibition on publicising received or collected confidential information etc. (the Constitutional Court’s 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 impose limitations on the constitutional human rights and freedoms in case the following conditions are observed: this is done by law; the limitations are necessary in a democratic society in an 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 limitations do not deny the nature and essence of the rights and freedoms; the constitutional principle of proportionality is followed (the Constitutional Court’s 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 a 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 freedom of the person who has committed a crime may be restricted on the grounds and according to the procedure established by law. Upon the restriction on freedom of such a person, his rights and freedoms may be subject to limitation, 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 limitations 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 the commission of a crime and sentenced only by an effective court judgment. This court judgment empowers the institutions which execute sentences and supervise the lawfulness of sentence execution to apply to a convict the limitations on 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 imposing limitations on human rights and freedoms of the persons sentenced to a term of imprisonment, as well as their right to the inviolability of correspondence, the legislature is bound by the Constitution. According to the Constitution, only a law specifying the grounds and procedure of such limitations may impose limitations on the right of the convicts to the inviolability of correspondence. The limitation should not violate the reasonable relation between the means adopted and the legitimate and commonly important objective sought. To attain this objective, the measures may be established which would be sufficient and which would not limit the rights of the person more than it is necessary (the Constitutional Court’s 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 limitations may not violate the essence of a respective human right (the Constitutional Court’s 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 the 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 on the secrecy of correspondence.

The punishment of imprisonment is certainly related to the restriction on 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 law; the laws establishing this 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 objective sought”, there may not be any “disproportionate limitation on 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, judgment 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, limitations on the privacy of correspondence must be established by law, they must be necessary in a democratic society in an attempt to protect the rights and freedoms of other persons as well as public interests, the limitations may not overstep reasonable limits and negate the essence of the limited rights. Only such limitations on this right, which are necessary to attain the objectives provided for in Paragraph 2 of Article 8 of the Convention, are allowed.

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 (the Constitutional Court’s 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 a limitation on the inviolability of correspondence was necessary in a democratic society and without consideration of the objective sought and whether such a limitation was proportionate to the objective sought.

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, it should be concluded 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 gives 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 ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced 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