The Saeima dislikes Aivars Lembergs' complaint to the Constitutional Court about computers in prison

Not allowing the detainees in the prison cell to use a computer for work has “a significant” public benefit - the Saeima points out in its reply to the Constitutional Court to the complaint submitted by Aivars Lembergs.

The reply was signed by Dagmāra Beitnere-Le Galla, Member of the Saeima, in the place of the Speaker of the Saeima.

It should be recalled that the signatory of the document is from the same New Conservative Party (Jaunā konservatīvā partija), whose leaders went to the United States to request the imposition of US sanctions on A. Lembergs and continue to brag of the decision of the court to arrest A. Lembergs, which is under their party's supervision.

The point of the detention

A.Lembergs filed a complaint with the Constitutional Court this summer, as he considers that Item 10 of the first Part of Section 13 of the Law On the Procedures for Holding under Arrest does not comply with the first sentence of Section 101 and the first sentence of Section 106 of the Constitution. In his opinion, this unreasonably prevented him from remotely performing the duties of a deputy and chairman of the municipal council. The said legal norm unreasonably prohibits the applicant, who is in custody in accordance with the security measure applied to him, to use a personal computer with an Internet connection, to the extent necessary for the performance of the duties of the deputy and chairman of the municipal council.

Evaluating the arguments mentioned in A. Lembergs' application, balancing the benefit that the society obtains from the impugned norm of the law with the restriction of the applicant's rights, the Saeima has concluded that the benefit to the society is significantly higher if the norms of the law remain unchanged. Namely, according to the authors of the Saeima's reply, the point of detention is much greater if such applicants to the Constitutional Court as Ventspils municipal deputy Aivars Lembergs are sitting in prison without a computer and opportunities to fully perform the duties of a deputy than if he were sitting in prison with a computer, fulfilling the promises made to voters without restrictions: “The restriction of fundamental rights imposed on persons such as the applicant is relatively small, as it concerns only the period of application of the security measure - detention. The duration of such a security measure is limited by law, and detainees are provided with both alternative means of communication (correspondence and payphone) and alternative forms of employment. In addition, until February 22, 2021, a security measure was in force against the applicant, which prevented him from performing the duties of the chairman of the municipal council, and as of July 1, 2021, the applicant is no longer the chairman of the municipal council. Employment is one of the main means of social rehabilitation and, in the opinion of the Saeima, as already explained in this reply, if a detainee could do the same thing as if he or she had not been remanded in custody, the point of detention would be lost. On the other hand, the public benefit from the restriction of fundamental rights included in the impugned norm of the law is significant, mainly in the sense that the criminal proceedings take place smoothly and the certainty that an objective decision will be made and thus a fair settlement of legal relationship will be ensured.”

Internet connection is dangerous

Saeima's reply also explains the justification for the above-mentioned: “The public benefit from the restriction of fundamental rights included in the impugned norm of the law is significant. First off, the possibility that the detainee, using a personal computer with an Internet connection, could interfere with the course of criminal proceedings, including the trial in the appellate instance and the cassation instance, or plan to evade the execution of a court judgment is prevented. It also prevents the detainee from trying to influence victims and witnesses by illegal means using a computer with an Internet connection (when the case is heard on appeal), thus protecting the rights of the victims and witnesses. In this way, the public is reassured that an objective decision will be made that will fairly regulate the legal relationship. Finally, the restriction of fundamental rights included in the impugned norm of the law also prevents the possibility that the detainee, using a computer with an Internet connection, could endanger the order and security at the place of detention.”

It should be reminded that A. Lembergs is being detained on the basis of very strange accusations of more than twenty-year-old events - he had extorted the shares of the company worth two lats from the former prosecutor Valentīns Kokalis, which did not even belong to him, etc. The judgment does not provide a comprehensible justification as to why A. Lembergs has become dangerous and how he could interfere with the proceedings of the next instance.

Money must be saved

Analyzing A. Lembergs' arguments that a more lenient measure and a more proportionate restriction in detention would be the right to use a personal computer with an Internet connection for work purposes, the Saeima has indicated: “If detainees were granted the right to use a personal computer with an Internet connection, they would also be able to take action against the order and security of the place of detention or to interfere with the proceedings, avoiding the execution of a court judgment or using illegal methods to influence victims and witnesses. Controlling activities on the Internet is complex and time-consuming, and the risk of illegal activities being hidden and uncovered only after they have been committed - that is, only after public security and the rights of others have been put at risk - cannot be ruled out. The Constitutional Court has explained that a measure that requires additional financial resources from the state cannot be considered more lenient (see: Judgment of October 18, 2018, by the Constitutional Court in Case No. 2018-04-01, paragraph 19). If detainees were allowed to use a personal computer, the state would also have to ensure regular inspections of each computer held by a convict, which would require not only additional human resources but also additional financial resources.”

The context of the digital age

Legal assistance in compiling and submitting the application to the Constitutional Court was provided to A. Lembergs by a sworn advocate Dr. iur. Inese Nikuļceva. Regarding the most important aspects that should be taken into account when assessing the submitted complaint, I. Nikuļceva pointed out that the requirements of the digital age should be respected: “The Law On the Procedures for Holding under Arrest was adopted in 2006, when opportunities to work remotely using online Internet platforms, video calls or similar technologies were not widely used. Today, such technology is widely accepted and there are no technical barriers to its use in prison. In other European countries, prisoners have been using the Internet for some time to obtain information, contact public authorities and courts, to work. Work is a socially useful occupation, one of the main elements of resocialization. Therefore, the Saeima, as a good legislator, should fit into the common European trend, consider the establishment of such a regulation.”

The lawyer regretted that the Saeima did not respect the references to the judgments of the European Court of Human Rights, explaining that in these cases the possibility to use a computer with Internet access was not assessed in the context of arrest and employment rights: "The European Convention for the Protection of Human Rights and Fundamental Freedoms does not guarantee the right to choose an occupation, but in a number of cases the European Court of Human Rights has already ruled in the context of other fundamental rights that prisoners should not be denied access to the Internet. For example, the European Court of Human Rights found a violation of fundamental rights in the judgment of January 17, 2017, against a neighboring country - Jankovskis v. Lithuania, application no. 21575, because “the Lithuanian authorities did not even consider granting the applicant limited or controlled access to the Internet to a particular site operated by a public authority, which could hardly pose a security risk” (paragraph 62 of the judgment). Also in the Constitutional Court judgment of October 24, 2019, in case no. 2013-23-03 it has already recognized that the prohibition of using a computer for educational purposes in a closed or partially closed type prison for the needs of education does not comply with the Constitution. If the Constitutional Court and the European Court of Human Rights have already recognized a total prohibition of a convicted person to use a computer in a prison for educational and informational purposes to be a violation of fundamental rights, I cannot draw any conclusion other than that detainees cannot be absolutely prohibited from working remotely.”

Speaking about Saeima's concerns that computers in prison would be used to endanger order and security, I. Nikuļceva emphasized: “In the specific case, the submitter of the constitutional complaint wishes to use a computer with an Internet connection to work in Ventspils City Municipality, fulfilling the will expressed by voters, namely for him to participate in the meetings of the City Council and its committees, as well as other meetings remotely. Such an Internet connection to communicate with the municipality would not pose security risks. The fact that access to a public authority's website is unlikely to pose a security risk has also been pointed out by the European Court of Human Rights in the above-mentioned judgment. I do not think that all prisoners should be given unrestricted and uncontrolled access to a computer with an Internet connection; the state can certainly determine which programs and which websites to allow and which not. However, the Law On the Procedures for Holding under Arrest currently provides for an absolute ban. The claim that additional human and financial resources are needed to carry out control also does not stand up to criticism. Certain financial and human resources will always be needed to ensure that detainees and convicts stay in prison. However, in a state governed by the rule of law, this cannot be an excuse not to provide humane conditions that would allow a detained or convicted person to return to society later as a full-fledged member, including with digital skills."

This year the Constitutional Court has already accepted three complaints from A. Lembergs regarding the non-compliance of various norms of law with the Constitution.