CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 janvier 2019

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LATVIA   (Application no. 12879/09)               JUDGMENT     STRASBOURG   10 January 2019     FINAL   24/06/2019       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Ēcis v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Yonko Grozev,   André Potocki,   Síofra O’Leary,   Mārtiņš Mits,   Gabriele Kucsko-Stadlmayer,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 20 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 12879/09) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Mārtiņš Ēcis (“the applicant”), on 12 December 2008. 2.     The applicant, who was granted legal aid, was represented by Mr   A.   Alliks, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3.     The applicant alleged, in particular, that he was discriminated against on the grounds of his sex with respect to the applicable prison regime that had led to a refusal to attend his father’s funeral. He complained of breach of Article 14 of the Convention, in essence, read in conjunction with Article 8 of the Convention. 4.     On 25 March 2015 the complaint concerning alleged discrimination was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1981 and lives in the Ventspils district. A.     The applicant’s imprisonment and the applicable prison regime 6.     On 6 December 2001 the applicant was convicted of kidnapping, aggravated murder and aggravated extortion and sentenced to twenty years’ imprisonment. This judgment was upheld at two levels of appeal and took effect in 2002. 7.     In accordance with section 50 4 (1) of the Sentence Enforcement Code ( Latvijas Sodu izpildes kodekss ), the applicant was placed at the maximum ‑ security level in a closed prison. 8 .     On an unspecified date the applicant was transferred to the medium ‑ security level of that closed prison. 9.     According to the applicant, in 2008 he realised that there was a difference in the respective treatment of male and female inmates with regard to the execution of custodial sentences. Male inmates who had been convicted of serious crimes started serving their sentences in closed prisons, while female inmates who had been convicted of the same crimes started serving their sentence in partly-closed prisons. As the applicant considered that this had a notable impact on restrictions of various prisoners’ rights, he lodged complaints about this issue with several State institutions. 10 .     On 30 September 2008 the applicant was informed that his father had died. On 2 October 2008 he requested permission to leave prison in order to attend his father’s funeral. On the same day the prison director replied that he had no authority to allow the request, as the applicant was serving his sentence at the medium-security level of a closed prison. Under the Sentence Enforcement Code only prisoners serving their sentence at the medium- or minimum- security level in partly-closed prisons were eligible for such leave. 11.     In the years 2012-2015 the applicant was granted one prison ‑ leave day per year. The case file contains no information as to the type of prison and security level in which the applicant served his sentence during this time. 12.     On 11 September 2015 the applicant was conditionally released. B.     Review of the applicant’s complaints 1.     Ministry of Justice 13.     On 1 July 2008 the Ministry of Justice examined the applicant’s complaint about the difference in treatment between convicted men and women. It referred to sections 50 4 (1) and 50 5 (1) of the Sentence Enforcement Code and observed that the legislature had chosen to create different legal frameworks in respect of sentence execution for men and women. The Ministry of Justice concluded that there was no discrimination on the grounds of sex because the rights of both male and female inmates were restricted, and both sexes were deprived of their liberty. 2.     The Ombudsperson 14 .     On 25 October 2010 the Ombudsperson concluded the examination of the applicant’s complaint about the refusal to allow him to attend his father’s funeral. He observed that closed prisons hosted male convicts who had been sentenced to deprivation of liberty for having committed serious or especially serious crimes, as well as convicts who had been moved from partly-closed prisons for grave or systematic breaches of the regime under which they had been held. In closed prisons convicts were subjected to tightened security and maximum surveillance. It followed that the persons placed in those prisons were particularly dangerous to the society. Hence, the restriction imposed on the applicant was proportionate and necessary in a democratic society. 3.     The Constitutional Court 15 .     On 9 July 2008 the applicant lodged a constitutional complaint, arguing that section 50 4 (1) of the Sentence Enforcement Code was discriminatory on the grounds of sex, in breach of Article 91 of the Constitution. As women convicted of the same crimes started serving their sentence in partly-closed prisons, they were entitled to more and longer visits, more phone calls and could progress to more lenient security levels more rapidly. In addition, women could be granted leave from prison for up to seven days per year, whereas no such right was provided for men. 16 .     On 29 July 2008 the Constitutional Court, relying on section 20(6) of the Law on the Constitutional Court, declined to institute proceedings. It stated that the legal reasoning included in the complaint was evidently insufficient for the claim to be allowed ( acīmredzami nepietiekams prasījuma apmierināšanai ). In particular, the applicant had failed to specify why the difference in treatment between men and women should not be acceptable. 17 .     On 7 August 2008 the applicant lodged a second constitutional complaint, adding that men and women who were convicted of serious and especially serious crimes were in the same circumstances in that they were both imprisoned. Yet, despite the prohibition of discrimination requiring men and women to be treated equally, their rights were restricted to a different extent. The applicant also pointed out that within the context of discrimination the burden of proof was shifted – namely, after a person had demonstrated a difference in treatment, it fell for the respondent to show that this difference had not amounted to discrimination. 18 .     On 5 September 2008 the Constitutional Court again declined to institute proceedings. With respect to the first sentence of Article 91 of the Constitution, which addressed the principle of equality, the Constitutional Court pointed out that the following criteria had to be examined – the existence of comparable groups, a difference in treatment between those groups, and a lack of objective and reasonable justification for that difference in treatment. As the legal reasoning advanced by the applicant was based on the assumption that men and women who had committed similarly grave crimes were in comparable situations, the Constitutional Court considered this reasoning evidently insufficient for the claim to be allowed. With respect to the prohibition of discrimination enshrined in the second sentence of Article 91 of the Constitution, the Constitutional Court pointed out that the applicant had failed to specify the human right in conjunction with which the discrimination complaint had been made. Thus, in relation to this part of the application, legal reasoning had not been provided ( nav sniegts juridiskais pamatojums ) and the formal requirements of a constitutional complaint had not been met. In so far as relevant, the Constitutional Court relied on sections 20(5)(3) and 20(6) of the Law on the Constitutional Court. 19 .     In a third constitutional complaint of 20 October 2008, the applicant added that on 2 October 2008 he had been refused permission to leave prison to attend his father’s funeral. He had thereby been discriminated against on the basis of sex, as women in his situation would have been able to attend the funeral. In support of his discrimination-related complaint the applicant referred to the right to private life, right to family life, and freedom of expression. 20 .     On 21   November 2008 the Constitutional Court declined to institute proceedings, invoking section 20(6) of the Law on the Constitutional Court. It noted that the application contained no reasoning as to why men and women who had been convicted of serious and especially serious crimes and given prison sentences would need to be subjected to the same rules of sentence enforcement – namely, how men and women were in comparable situations. On those grounds, the legal reasoning included in the constitutional complaint was held to be evidently insufficient for the claim to be allowed. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution 21.     The relevant provision of the Constitution of the Republic of Latvia ( Satversme ), reads:   Article 91 “All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.” B.     The Sentence Enforcement Code 22 .     Section 50 3 at the material time provided that both closed and partly ‑ closed prisons had three security levels (regimes under which sentences were to be served) – maximum, medium and minimum. Under section 50 1 , both at the material time and at the time of adoption of this judgment, all prisoners who are to serve their sentence in closed or partly-closed prisons start serving their sentence at the maximum-security level of the respective prison. They are all subjected to the “progressive sentence execution” system, under which prisoners can be transferred to more lenient prison regimes following an individual assessment, but only after having served a certain pre-set proportion of their sentence under the stricter regimes. 23 .     Section 50 4 (1) sets out two groups of convicts who serve their sentence in closed prisons: men sentenced to deprivation of liberty for the commission of serious or especially serious crimes and convicts who have been transferred from partly-closed prisons owing to gross or systematic regime violations. Prisoners placed in closed prisons have to serve no less than one fourth of the adjudged sentence at the maximum-security level. Following this time they may be transferred to the medium-security level, where they have to serve no less than another fourth of the adjudged sentence before becoming eligible for a transfer to the minimum security level. From the minimum security level prisoners may be transferred to a partly-closed prison or conditionally released before the completion of the sentence. 24 .     Section 50 5 (1) lists ten different groups of convicts who serve their sentence in partly-closed prisons, including women serving sentences for intentionally committed crimes. At the relevant time this provision provided that when beginning a sentence a convicted person had to serve no less than one fifth of the adjudged sentence at the maximum-security level. Subsequently, he or she had to serve no less than a further fifth at the medium-security level but the remaining part could be served at the minimum security level. From the minimum security level a convicted person could be transferred to an open prison or conditionally released before the completion of the sentence. 25 .     Prisoners serving their sentence in closed prisons, regardless of the applicable prison regime, as well as prisoners serving their sentence in partly-closed prisons at the maximum-security level, were not eligible for prison leave. With respect to prisoners held at the medium- and minimum ‑ security level in partly-closed prisons, section 50 5 stated that they had the right, with the permission of their prison governor, to temporarily leave the prison for up to seven days a year, or up to five days on account of the death or life-threatening illness of a close relative. C.     The Criminal Law 26.     Section 7(1) of the Criminal Law ( Krimināllikums ) provides that on the basis of their degree of severity criminal offences are divided into misdemeanours, less serious crimes, serious crimes and especially serious crimes. 27.     At the relevant time section 7(4) provided that serious crimes were intentional offences for which the punishment provided in the Criminal Law was deprivation of liberty for a period of between five and ten years. Section 7(5) stated that especially serious crimes were intentional offences for which the punishment was deprivation of liberty for more than ten years, life imprisonment or the death penalty. D.     Law on the Constitutional Court 28.     Section 17(1)(11) of the Law on the Constitutional Court provides that any person who considers that his or her fundamental rights have been breached has the right to submit an application to the Constitutional Court. 29.     Section 18(1) lists the elements that have to be included in an application to the Constitutional Court. “Legal reasoning” is listed as one of such elements. 30 .     Section 19 2 of the Law on the Constitutional Court provides: “(1) Any person who considers that a legal provision that is not in compliance with a provision of a superior legal force has infringed his or her fundamental rights under the Constitution may lodge a constitutional complaint (an application) with the Constitutional Court. ... (6) In addition to the elements required under section 18(1) of the present Law, a constitutional complaint (an application) must contain reasoning concerning: (i) the violation of the applicant’s fundamental rights, [as] provided in the Constitution, and; (ii) the exhaustion of all ordinary remedies or the fact that no such remedies exist.   ...” 31 .     Section 20 at the relevant time provided: “(1) An application shall be examined and the decision to institute proceedings or to decline to institute proceedings shall be taken by a panel comprising three judges. ... (5) In examining applications, the panel shall have the right to decline to institute proceedings if: ... 3) the application does not comply with the requirements specified in section 18 or sections 19-19 2 of this Law; ... (6) When examining a constitutional complaint (an application) the panel may also decline to institute proceedings when the legal reasoning included in the complaint is evidently insufficient [to justify] allowing the claim.” E.     Practice of the Constitutional Court concerning institution of constitutional proceedings 32 .     In the judgment of 22 February 2002 (case no. 2001-06-03) the Constitutional Court held:   “2.2. In accordance with section 19 2 (1) of the Law on the Constitutional Court a constitutional complaint may be lodged by a person who “considers” [that a legal provision has infringed his or her fundamental rights]. The law gives prominence to the view of the person, and not that of the court, about the violation of the fundamental rights. The law requires the person to be of the view that the fundamental rights granted to him or her under the Constitution have been breached. However, this requirement has to be seen together with section 19 2 (6) of the Law on the Constitutional Court, which requires this view to be substantiated. Hence, in order to institute proceedings on the basis of the constitutional complaint it has to be established that the application contains sufficient legal reasoning substantiating this “view”; nonetheless, the Panel of the Constitutional Court is not required to carry out a full assessment of this “view”. The Panel of the Constitutional Court has a right to decline to institute proceedings only if the “legal reasoning substantiating the view” is evidently insufficient for the claim to be allowed; however, it has the obligation to do so only when the legal reasoning has not been provided at all. ... The purpose of section 20(6) of the Law on the Constitutional Court is to save the Constitutional Court the “idle work” of dealing with manifestly unsubstantiated complaints. In situations when some legal reasoning is included but there are doubts as to whether it is not evidently insufficient for allowing the claim, the said provision has to be interpreted in accordance with its purpose.” III.     RELEVANT INTERNATIONAL LAW AND PRACTICE A.     United Nations 33.     The set of norms and principles established within the United Nations concerning the treatment and protection of detainees is summarised in Khoroshenko v. Russia ([GC], no. 41418/04, §§ 69-75, ECHR 2015). International standards on the protection of women prisoners are described in Khamtokhu and Aksenchik v. Russia ([GC], nos.   60367/08 and 961/11, §§   27-31, 24 January, 2017). 34.     In addition, the relevant parts of the UN Standard Minimum Rules for the Treatment of Prisoners, as revised by the General Assembly on 17   December 2015 (“the Nelson Mandela Rules”), provide: “ I. Rules of general application Basic principles ... Rule 2 1. The present rules shall be applied impartially. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status. The religious beliefs and moral precepts of prisoners shall be respected. 2. In order for the principle of non-discrimination to be put into practice, prison administrations shall take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings. Measures to protect and promote the rights of prisoners with special needs are required and shall not be regarded as discriminatory. ... Separation of categories Rule 11 The different categories of prisoners shall be kept in separate institutions or parts of institutions, taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment; thus: (a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate; ... Notifications ... Rule 70 The prison administration shall inform a prisoner at once of the serious illness or death of a near relative or any significant other. Whenever circumstances allow, the prisoner should be authorized to go, either under escort or alone, to the bedside of a near relative or significant other who is critically ill, or to attend the funeral of a near relative or significant other. ... II. Rules applicable to special categories A. Prisoners under sentence Guiding principles ... Rule 89 1. The fulfilment of these [guiding] principles requires individualization of treatment and for this purpose a flexible system of classifying prisoners in groups. It is therefore desirable that such groups should be distributed in separate prisons suitable for the treatment of each group. 2. These prisons do not need to provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. ...” 35.     The UN Rules for the Treatment of Women Prisoners and Non ‑ custodial Measures for Women Offenders, adopted by the General Assembly on 21 December 2010 (“the Bangkok Rules”), supplement the Standard Minimum Rules for the Treatment of Prisoners by addressing the distinctive needs of women prisoners. The relevant parts of the Bangkok Rules provide: “ I. Rules of general application 1. Basic principle [ Supplements rule 2 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) ] Rule 1 In order for the principle of non-discrimination, embodied in rule 6 of the Standard Minimum Rules for the Treatment of Prisoners to be put into practice, account shall be taken of the distinctive needs of women prisoners in the application of the Rules. Providing for such needs in order to accomplish substantial gender equality shall not be regarded as discriminatory. ... II. Rules applicable to special categories A. Prisoners under sentence 1. Classification and individualization [Supplements rules 93 and 94 of the Nelson Mandela Rules] ... Rule 41 The gender-sensitive risk assessment and classification of prisoners shall: (a) Take into account the generally lower risk posed by women prisoners to others, as well as the particularly harmful effects that high security measures and increased levels of isolation can have on women prisoners; ... Social relations and aftercare [Supplements rules 106 to 108 of the Nelson Mandela Rules] ... Rule 45 Prison authorities shall utilize options such as home leave, open prisons, halfway houses and community-based programmes and services to the maximum possible extent for women prisoners, to ease their transition from prison to liberty, to reduce stigma and to re-establish their contact with their families at the earliest possible stage.” B.     Council of Europe 36.     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 replaced Recommendation No. R (87) 3 on the European Prison Rules), which took into account the developments in penal policy, sentencing practice and the overall management of prisons in Europe. The relevant parts of the amended European Prison Rules read as follows: “ Part I Basic principles 1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. ... Scope and application ... 13. These rules shall be applied impartially, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ... Part II Conditions of imprisonment Allocation and accommodation ... 18.10 Accommodation of all prisoners shall be in conditions with the least restrictive security arrangements compatible with the risk of their escaping or harming themselves or others. ... Contact with the outside world ... 24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. 24.6 Any information received of the death or serious illness of any near relative shall be promptly communicated to the prisoner. 24.7 Whenever circumstances allow, the prisoner should be authorised to leave prison either under escort or alone in order to visit a sick relative, attend a funeral or for other humanitarian reasons. ... Women 34.1 In addition to the specific provisions in these rules dealing with women prisoners, the authorities shall pay particular attention to the requirements of women such as their physical, vocational, social and psychological needs when making decisions that affect any aspect of their detention. ... Part IV Good order ... Security 51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. ... 51.3 As soon as possible after admission, prisoners shall be assessed to determine: a. the risk that they would present to the community if they were to escape; b. the risk that they will try to escape either on their own or with external assistance. 51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk. 51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment. ... Part VIII Objective of the regime for sentenced prisoners 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment. Implementation of the regime for sentenced prisoners ... 103.6 There shall be a system of prison leave as an integral part of the overall regime for sentenced prisoners.” 37 .     The relevant parts of the Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules read: “Rule 24.5 places a positive duty on the prison authorities to facilitate links with the outside world. One way in which this can be done is to consider allowing all prisoners leave from prison in terms of Rule 24.7 for humanitarian purposes. The ECtHR has held that this must be done for the funeral of a close relative, where there is no risk of the prisoner absconding ( Ploski v. Poland , No. 26761/95, judgment of 12/11/2002). Humanitarian reasons for leave may include family matters such as the birth of a child.” 38 .     The relevant parts of Recommendation No. R (82) 16 of the Committee of Ministers to member States on prison leave, adopted on 24   September 1982, read:   “The Committee of Ministers ... Considering that prison leave contributes towards making prisons more humane and improving the conditions of detention; Considering that prison leave is one of the means of facilitating the social reintegration of the prisoner; ... Recommends the governments of member states: 1. to grant prison leave to the greatest extent possible on medical, educational, occupational, family and other social grounds; 2. to take into consideration for the granting of leave: - the nature and seriousness of the offence, the length of the sentence passed and the period of detention already completed, - the personality and behaviour of the prisoner and the risk, if any, he may present to society, - the prisoner’s family and social situation, which may have changed during his detention, - the purpose of leave, its duration and its terms and conditions; 3. to grant prison leave as soon and as frequently as possible having regard to the aforementioned factors; 4. to grant prison leave not only to prisoners in open prisons but also to prisoners in closed prisons, provided that it is not incompatible with public safety; ... 9. to inform the prisoner, to the greatest extent possible, of the reasons for a refusal of prison leave; ...” 39 .     The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “the CPT”) following a visit to Latvia that took place from 5 to 15 September 2011 published a report to the Latvian Government, dated 27 August 2013. The relevant parts of that report read: “47. Before setting out the delegation’s findings regarding the establishments visited, the CPT would like to raise one issue of a more general nature concerning the regime applied to prisoners. The Latvian Code of Execution of Sentences provides that all prisoners in closed and semi-closed prisons shall be subject to the progressive sentence execution regime , irrespective of the duration of the sentence imposed. Prisoners held in closed prisons serve their sentences in three consecutive regime levels: low, medium and high. The law requires that such prisoners serve at least a quarter of their sentence on the low regime level and demonstrate good behaviour in order to qualify for the medium level. After having served at least a quarter of their sentence on the medium regime level, they may be further transferred to the high regime level ... It is noteworthy that prisoners on the low regime level inter alia have generally limited work opportunities and fewer possibilities for maintaining contact with the outside world ... The CPT recalls that “imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” Moreover, although it is for the judicial authority to determine the appropriate length of sentence for a given offence, prison authorities should be responsible for determining security and regime requirements, on the basis of professionally agreed criteria and individual assessments of prisoners. In this context, it is difficult to justify a prisoner being required to serve a minimum part of the prison sentence in a specific regime level (low or medium). In the CPT’s view, progression from one regime level to another should be based on the prisoner’s attitude, behaviour, participation in activities (educational, vocational, or work ‑ related), and in general adherence to reasonable pre-established targets set out in a sentence plan. For this purpose, regular individual reviews should be carried out. The CPT invites the Latvian authorities to review the relevant legislation and practice in the light of the above remarks.” [emphasis and footnotes omitted] 40 .     Following the next visit to Latvia that took place from 12 to 22   April 2016 the CPT in its report to the Latvian Government, dated 29 June 2017, referred back to the findings it had made during the visit of 2011. It reiterated its reservations about the “progressive sentence execution” system and emphasised that the progression from one regime level to another should be determined by prison authorities, based on professionally agreed criteria and individual assessments. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 8 41.     The applicant complained about difference in treatment between men and women convicted of the same crimes in relation to the respective applicable prison regimes, in particular, with regard to the right to prison leave, which had led to a refusal to attend his father’s funeral. He argued that this was contrary to Article 14 of the Convention, read in conjunction with Articles 5, 8 and 10 of the Convention. 42.     Having regard to the circumstances of the case and bearing in mind that it has the power to decide on the characterisation to be given in law to the facts of a complaint (see Radomilja and Others v. Croatia [GC], nos.   37685/10 and 22768/12, § 126, 20 March 2018), the Court considers it appropriate to examine the applicant’s grievances from the standpoint of Article 14 of the Convention, taken in conjunction with Article 8. Those provisions read as follows: Article 8 “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 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 the rights and freedoms of others.” Article 14   “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 43 .     In addition, the Court notes that in cases arising from individual applications it is not the Court’s task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances (see, for example, Sommerfeld v. Germany [GC], no.   31871/96, § 86, ECHR 2003-VIII, compare also Van der Ven v. the Netherlands , no. 50901/99, §   53, ECHR 2003 ‑ II).     Accordingly, in the present case the Court is not called upon to compare the entirety of the prison regime under which the applicant was serving his sentence with the prison regime that was applicable to women convicted of the same crimes. Instead, it has to address the issue that has affected the applicant directly and personally and has to determine whether the refusal to entertain his request to attend his father’s funeral constituted discrimination on the basis of sex prohibited under Article 14 of the Convention, read in conjunction with Article 8 of the Convention. A.     The Government’s preliminary objection 1.     Arguments of the parties 44.     The Government submitted that the Court could not examine the case before the Constitutional Court had made an assessment as to whether section 50 4 of the Sentence Enforcement Code complied with the Convention. The Constitutional Court was the effective domestic remedy created for this particular purpose, was capable of providing redress and was available to the applicant both in law and in practice. Even so, the applicant’s constitutional complaints had been rejected for lack of sufficient legal reasoning. The applicant had been aware of the mandatory requirements of a constitutional complaint and could not bypass the obligation to exhaust the available domestic remedies by deliberately and consistently submitting incomplete and insufficiently reasoned constitutional complaints. Moreover, the applicant had not been precluded from remedying the deficiencies identified by the Constitutional Court and lodging another constitutional complaint. 45.     Furthermore, the applicant had not challenged before the Constitutional Court the fact that the Sentence Enforcement Code did not allow compassionate leave for inmates serving their sentence in closed prisons. In particular, the applicant had failed to challenge the provision specifying the differences in rights and obligations between convicts serving their sentences in different regimes. 46.     The applicant submitted that he had tried, within the limits of his resources and abilities, to defend his rights before the Constitutional Court. He asserted that an ordinary citizen could not enjoy the protection of the Constitutional Court, its standards being enormously high for a person without a legal education. Drafting a constitutional complaint was a difficult task even for legal professionals; thus, it was not fair to blame the applicant for his inability to properly perform in this sophisticated legal field. 2.     The Court 47.     The Court reiterates that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The rule of exhaustion of domestic remedies is therefore a fundamental part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Chiragov and Others v.   Armenia [GC], no. 13216/05, § 115, ECHR 2015). 48.     While Article 35   §   1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that complaints intended to be subsequently brought before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law   (see Akdivar and Others v. Turkey , 16   September 1996, §§   66 and 69, Reports of Judgments and Decisions 1996 ‑ IV). Non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of his or her failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the appeal (see Gäfgen v.   Germany [GC], no. 22978/05, §   143, ECHR 2010). 49.     In the present case the parties agree that the alleged interference with the applicant’s rights emanated from a domestic legal provision. As the Court has consistently held, where the source of the alleged breach of a Convention right is a provision of Latvian legislation, proceedings should, in principle, be brought before the Constitutional Court prior to being brought before the Court (see, for example, Grišankova and Grišankovs v.   Latvia (dec.), no.   36117/02, ECHR 2003 ‑ II (extracts), and Larionovs and Tess v.   Latvia (dec.), no.   45520/04, §§ 142-143 and 167, 25   November 2014). 50.     The Court observes that the applicant lodged three constitutional complaints challenging section 50 4 (1) of the Sentence Enforcement Code. In his third constitutional complaint the applicant emphasised that this provision had resulted in his inability to attend his father’s funeral. Hence, in relation to the complaint under the Court’s review (see paragraph 43 above) it is the applicant’s third constitutional complaint that is relevant for the purposes of exhaustion of domestic remedies. The Constitutional Court declined to institute proceedings, stating that his complaint lacked legal reasoning. Accordingly, it falls to be determined whether the applicant discharged the obligation to exhaust the pertinent domestic remedy. 51.     Firstly, the Court observes that under the Law on the Constitutional Court there are two possible grounds for declining to institute proceedings when the required legal reasoning is considered to be lacking. The Constitutional Court may conclude that an applicant has not complied with the formal requirements for submitting a constitutional complaint (including the obligation to provide legal reasoning) and invoke section 20(5)(3) of that Law. Alternatively, it may find that the legal reasoning submitted is evidently insufficient for the claim in question to be allowed and rely on section 20(6) (see paragraph 31 above) – a rejection ground that appears to have a discretionary element (see paragraph 32 above). In light of the above, the Court attaches importance to the fact that the third constitutional complaint, just like the previous two, was rejected on the second ground (see paragraphs 16, 18 and 20 above). By contrast, in those cases where the Court has accepted a Government’s non ‑ exhaustion plea owing to insufficiently reasoned constitutional complaints, the Constitutional Court had concluded that the relevant complaint had been incompatible with section 19² of the Law on the Constitutional Court (see Gubenko v. Latvia (dec.), no.   6674/06, §§   9 and   25, 3   November 2015, and Svārpstons and Others v. Latvia (dec.), no.   14976/05, §§ 26 and 51, 6   December 2016). 52.     Secondly, in his third constitutional complaint the applicant expressly complained of discrimination on the grounds of sex in that men were subjected to a stricter prison regime and greater limitation of their rights than women. He emphasised that this distinction applied to men and women who had been convicted of the same crimes and given the same punishment and therefore concerned groups of people who were in “comparable situations”. He argued that this resulted in unjustified difference with respect to men and women’s respective right to prison leave on compassionate grounds, as owing to the prison regime they were subjected to male prisoners were not even eligible for such leave (see paragraphs 15, 17 and 19 above). Thus, the Court considers that in his third constitutional complaint the applicant expressly and in substance raised the discrimination complaint that he has now brought before the Court (compare Schwarzenberger v. Germany , no. 75737/01, §   31, 10 August 2006, and Luig v. Germany (dec.), no.   28782/04, 25   September 2007). 53.     Thirdly, with regard to the Government’s argument that the applicant could have lodged another complaint after remedying the deficiencies, the Court notes that in relation to all three complaints the Constitutional Court considered that the applicant had failed to sufficiently substantiate his claim that men and women prisoners were in comparable situations, also after he emphasised that the difference in treatment concerned men and women who had been convicted of the same crimes and had been given the same sentences. Thus, the Court considers that through the reasons given in its decisions, notably, when rejecting the third constitutional complaint, the Constitutional Court, at least partly, expressed its position on the substance of the applicant’s discrimination complaint (compare Gäfgen , cited above, §   145, and Jalloh v. Germany (dec.), no.   54810/00, 26 October 2004). 54.     Lastly, in relation to the Government’s argument that the applicant had failed to challenge before the Constitutional Court the provision specifying the differences in rights and obligations between convicts serving their sentences in different regimes, the Court observes that the applicant does not complain about the fact that under different prison regimes prisoners’ rights are restricted to a varied extent. Likewise, he does not complain that prisoners serving their sentence under a specific prison regime do not have a right to prison leave. Instead, his complaint concerns the fact that men and women who are convicted of the same crimes start serving their sentences under different prison regimes, leading to differences in the restrictions placed on their rights, particularly, a blanket ban on the male prisoner’s right to request prison leave. Hence, the Court is not convinced that challenging before the Constitutional Court the provision setting out the rights and obligations applicable to certain prison regimes would have been an effective remedy for the specific complaint that the applicant has brought before the Court. 55.     In the light of the above, the Court concludes that the applicant provided the national authorities with the opportunity, which is in principle intended to be afforded to Contracting States under Article 35 § 1 of the Convention, to put right the violations alleged against them (compare Muršić v. Croatia [GC], no. 7334/13, § 72, 20 October 2016). Hence, the Government’s objection of non-exhaustion of domestic remedies must be dismissed. B. Admissibility and merits of the complaint 1.     Arguments of the parties (a)     The applicant 56.     The applicant argued that he had been discriminated against on the grounds of his sex because he, as a man convicted of serious and particularly serious crimes, started serving his sentence in a closed prison. Women convicted of the same crimes started serving their sentence in partly-closed prisons. Accordingly, male and female prisoners who had been convicted of the same crimes and given the same sentences were subjected to different prison regimes, and the rights of these two groups of prisoners were restricted to a different extent. Most notably, prisoners serving their sentence in closed prisons were not eligible for prison leave, while prisoners in partly-closed prisons, like female prisoners in a situation similar to the applicant’s, did have such a right. 57.     Further to the Government’s observations, the applicant argued that the fact women generally committed fewer crimes could not justify stricter prison conditions for men. Likewise, there was no justification for concluding that he, as a man, would be less willing or should be less entitled to meet his family members and other relatives. Every person’s attitude to family values was individual and by no means dependent upon their sex. Besides, more opportunities of meeting family members and other relatives were conducive to prisoners’ social reintegration. 58.     The applicant emphasised that his sex had been the only reason for his not being allowed to attend his father’s funeral, as the refusal had been based solely on the prison regime under which he had been serving his sentence. No other ground had played any role whatsoever, since he had committed no breaches of that regime that could have affected this decision. This was demonstrated by the fact that later, when he had been subjected to a different prison regime, he had been granted short-term prison leave four times. On thos