ECHR judgment of 10 January 2019 in the case of Ecis v. Latvia (аpplication N 12879/09).
In 2009, the applicant was assisted in preparing аpplication. Subsequently, the аpplication was communicated to Latvia.
In the case, an аpplication was successfully examined regarding the complete prohibition of prison leave for male prisoners in closed prisons. There was a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with Article 14 of the Convention.
Circumstances of the case
In the Latvian penitentiary system, all male prisoners convicted of serious and especially serious crimes are held in closed institutions with a maximum level of security and are not entitled to jail time before being transferred to a partially closed institution, which is possible only after they have left half of his term. At the same time, female prisoners convicted of similar crimes are being held in partially closed institutions from the very beginning of their sentence.
The applicant was convicted of murder and sentenced to 20 years in prison. While he was in a closed prison and an average level of security was applied to him, his father died and the applicant requested permission to attend his funeral. He was denied this because only prisoners who were subject to a minimum or medium level of security and who were held in partially closed facilities could receive permission to temporarily leave the prison. The applicant complained that he had been the victim of discrimination based on sex with regard to the respective prison regime, which had led to his refusal of leave.
QUESTIONS OF LAW
Regarding compliance with article 14 of the Convention in conjunction with article 8 of the Convention. (a) Whether the applicant was in a similar or similar situation compared to female prisoners. The difference in treatment concerned men and women who were convicted of the same or comparable crimes and sentenced to imprisonment. The complaint concerned how the relevant prison regime affected the restrictions on the family life of prisoners, in particular regarding their right to prison leave for reasons of compassion. Consequently, the complaint concerned issues that were relevant to all prisoners. Given the nature of the applicant's complaint, he could demand that his situation be similar to that of female prisoners convicted of the same or comparable crimes.
(b) Whether the difference in treatment was objectively justified. The Government submitted that the difference in treatment was aimed at protecting women prisoners from the negative consequences of applying identical approaches, as a result of which their specific needs would not be taken into account.
The specific needs of women prisoners, in particular those related to motherhood, in order to ensure substantive gender equality, should not be considered discriminatory. Accordingly, some differences in prison regimes applied to men and women were acceptable and could even be necessary to ensure substantive gender equality. Nevertheless, in the context of the penitentiary system and prison regimes, the difference in treatment depending on gender should have reasonable proportionality between the means used and the aim pursued.
At the time of the applicant's request for prison leave, he had already been transferred to an average level of security in a closed prison. His request was not granted precisely on the basis that he was subject to a medium security regime and was held in a closed prison. Neither the authorized state bodies, nor the Latvian authorities indicated any other motives that would serve as the basis for this decision. At the same time, women prisoners under similar circumstances, that is, those convicted of the same crimes, sentenced to the same sentence and transferred to the average level of security after serving half of their term, would have the right to leave prison, since from the very beginning served sentences in partially closed prisons.
In substantiating this difference, the Latvian authorities claimed that female prisoners were generally less aggressive and prone to violent acts, while male prisoners were more prone to violence between prisoners and attempted escape and posed a greater security risk than women prison staff. Even if this statement were confirmed by relevant data, it would not be sufficient to justify such a difference in treatment. A different conclusion would be tantamount to the conclusion that male prisoners, compared with female prisoners who committed exactly the same crimes, were so dangerous that an individual assessment of the situation would be meaningless. Such an approach would be incompatible with the case-law of the European Court, which emphasizes the need for an individual risk assessment of the escape of all prisoners.
Although legitimate penological grounds may exist for the deprivation of liberty, the emphasis of European criminal law policy is on the rehabilitation goal of deprivation of liberty. This principle applies regardless of the crime committed or the length of the prescribed term of imprisonment; it also applies regardless of the sex of the prisoner. Maintaining family ties is the main means of promoting the social reintegration and rehabilitation of all prisoners, regardless of gender. In addition, prison leave is one of the means of promoting the social reintegration of all prisoners.
The total ban on men from leaving prison, even to attend a family member’s funeral, did not contribute to the goal of addressing the special needs of women prisoners. The refusal to satisfy the applicant’s request for leave in order to be able to attend his father’s funeral, on the basis of the prison regime that was applied to the applicant because of his gender, had no objective and reasonable justification.
In the case there was a violation of the requirements of Article 14 of the Convention in conjunction with Article 8 of the Convention (adopted by five votes in favor, with two against).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 3,000 in respect of non-pecuniary damage.,