AS TO THE ADMISSIBILITY OF
Application No. 25652/94
by A.K.L.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 August 1994 by
A.K.L. against Finland and registered on 14 November 1994 under file
No. 25652/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1953. He is presently
serving a prison sentence in the County Prison of Häme.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant has been in imprisonment since at least from August
1993. In 1993 he was serving his prison sentence in the Central Prison
of Riihimäki, hereinafter "the Central Prison". At the beginning of
1994, on or before 7 March 1994, he was transferred to the County
Prison of Häme, hereinafter "the County Prison".
By petitions of 13 August 1993, 27 August 1993, 14 December 1993
and 1 January 1994 to the Ministry of Justice (oikeusministeriö) and
to the Parliamentary Ombudsman (eduskunnan oikeusasiamies), the
applicant complained generally about the conditions in the Central
Prison as regards, inter alia, the surveillance of prisoners' telephone
calls and restrictions on the use of money in prison.
On 1 December 1993 the Department for Prison Administration
(vankeinhoito-osasto) of the Ministry of Justice, hereinafter "the
Prison Department", responded to the applicant's complaints by stating,
inter alia, that the restrictions on the use of money in prison were
based on a regulation made by the Prison Department in February 1992.
It further stated that, under section 28 of the 1975 Decree on the
Treatment of Prisoners (vankeinhoitoasetus), the Prison Governor
(vankilan johtaja) was empowered, where special grounds existed, to
grant a prisoner a wider right to use money.
On 31 August 1994 the Deputy Parliamentary Ombudsman (eduskunnan
apulaisoikeusasiamies) responded to the applicant's petitions by
referring, firstly, to her previous decision of 31 January 1992, in
which she had stated that the applicant's petition did not establish
a need for further measures. She found that the applicant's petitions
were so general that they did not give her grounds to change her
previous decision. As regards the surveillance of telephone calls, she
stated, furthermore, that a Bill proposing an amendment to the Decree
on Penal Enforcement (asetus rangaistusten täytäntöönpanosta) was
before Parliament.
By a petition of 7 March 1994 to the Parliamentary Ombudsman the
applicant complained about the prison conditions in the County Prison
as regards, inter alia, the surveillance of telephone calls. The
Parliamentary Ombudsman requested the Prison Governor and two guards
to give reports and also sought an opinion on the case from the Prison
Department. It appears that the applicant had during his imprisonment
in the County Prison made a total of 20 telephone calls. The Prison
Department stated in its opinion that the surveillance of prisoners'
telephone calls was based on a previous circular letter issued by the
Prison Department on 24 June 1975 as well as on a more recent
regulation concerning prisoners' correspondence, which had come into
force on 1 January 1993. The Prison Department argued that the practice
of the surveillance was justified taking into account the need for the
maintenance of order in prison.
On 22 August 1994 the Parliamentary Ombudsman decided not to take
any further measures in the case. The Parliamentary Ombudsman stated
that, at that time, there was no statute law on the surveillance of
telephone calls in prisons. The practice of the surveillance of
telephone calls was based on a previous circular letter issued by the
Prison Department on 24 June 1975. He furthermore referred to the
legislative proposal concerning an amendment to the Decree on Penal
Enforcement. The Parliamentary Ombudsman found that the surveillance
of prisoners' telephone calls could not be considered to be unlawful
taking into account the reasons given in the Prison Department's
opinion.
According to the circular letter of 24 June 1975 concerning
telephone calls, a prisoner's telephone call could be put under
surveillance in two ways: either by being present in the same room or
by listening in an extension, but informing the prisoner about the
surveillance beforehand. It was prohibited to listen to calls between
a prisoner and his advocate or legal aid counsel save for special
reasons. This directive was replaced as from 1 January 1993 by an
directive on prisoners' correspondence. The previous practice observed
in connection with the surveillance of prisoners' calls was not
changed.
Under section 9, subsection 3 of the Act on Penal Enforcement
(laki rangaistusten täytäntöönpanosta), which was amended on
31 January 1995 and came into force on 1 May 1995, a prisoner may be
granted permission to make a telephone call to someone outside the
prison. A prisoner's telephone call may be put under surveillance if
such surveillance is necessary in order to prevent a crime or if there
exist special grounds to suspect misuse of the right to use the
telephone. The prisoner and the person whom the prisoner is going to
phone are to be informed about the surveillance beforehand. Telephone
calls to an authority with supervisory responsibility for the prison
or to the prisoner's counsel may not be put under surveillance.
Under section 28 of the 1975 Decree on the Treatment of
Prisoners, the Ministry of Justice issues regulations on prisoners'
right to have money in their possession. The Prison Governor is
empowered, where special grounds exist, to allow a prisoner a right to
have money in his possession and to use it. By virtue of section 32 of
the relevant Decree, there is to be a shop for prisoners in the prison.
If a prisoner is not allowed to have money in his possession, his
purchases shall be charged to his account. The costs of mail and
telephone calls are charged to a prisoner's account. The new Decree on
the Treatment of Prisoners, as amended on 16 June 1995, contains
similar provisions (in sections 34, 38 and 39), and it introduces a
payment card which can be used instead of money.
COMPLAINTS
The applicant complains, under Article 8 of the Convention, that
certain conditions in Finnish prisons violate his right to respect for
his private life.
Firstly, the applicant alleges that prisoners' telephone calls
are being placed under surveillance using technical equipment, although
there is no authorization for this practice in legislation. He
maintains that the authorities supervising the prisons do not deny that
telephone calls may be put under surveillance. He further maintains
that he himself does not have any evidence of his own telephone calls
having been placed under surveillance but that, taking into account
that the authorities admit the possibility that telephone calls can be
put under surveillance, he is not obliged to present any evidence
concerning his own telephone calls.
Secondly, as regards the right to use money, the applicant
maintains that prisoners' right to use money is restricted to FIM 300
per month. He complains that this restriction is arbitrary and
restricts in an unjustified manner his opportunities to make purchases
in the prison shop and that, therefore, his right to respect for his
private life has been violated.
THE LAW
The applicant complains that, during his imprisonment in the
Central Prison of Riihimäki and later in the County Prison of Häme, the
practice of the surveillance of prisoners' telephone calls and the
restriction on the use of money violated his right to respect for his
private life as he, too, was subjected to these practices complained
of. He invokes Article 8 (Art. 8) of the Convention which reads as
follows:
"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."
The Commission notes, firstly, that it is questionable whether
the application, as regards the conditions in the first prison, namely
in the Riihimäki Central Prison, has been lodged in time having regard
to the requirements of Article 26 (Art. 26) of the Convention. The
Commission finds, however, that this question can be left open since
it finds that the application is in any event inadmissible for the
following reasons.
1. As regards the telephone calls, the Commission recalls that
communication by telephone is included in the concepts of "private
life" and "correspondence" (see, for example, Eur. Court H.R., Malone
judgment of 2 August 1984, Series A no. 84, p. 30, para. 64).
The Commission notes, however, that the applicant has not in any
way substantiated his allegation as regards the surveillance of his own
telephone calls. The applicant has neither specified what telephone
calls he has made, nor on what basis he believes that his telephone
calls have been put under surveillance. The Commission also notes that
the practice which was used in the prisons as regards the surveillance
of prisoners' telephone calls was not such as could escape a prisoner's
notice since telephone calls were listened to by a guard being present
in the same room with a prisoner or by listening in an extension, but
in the latter case the prisoner was informed about the surveillance
before the call. The applicant has failed to put forward any argument
why these conditions would have been disregarded in his case.
In these circumstances the Commission finds that the applicant's
allegation concerning an interference in his right under Article 8
(Art. 8) of the Convention has been unsubstantiated.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. As regards the complaint concerning the possession and use of
money in prison the Commission accepts that this question falls under
Article 8 (Art. 8) of the Convention as being part of "private life"
(cf. No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).
Article 26 (Art. 26) of the Convention provides that the
Commission may deal with a matter only after all domestic remedies have
been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken. It is established case-law that
"the final decision" refers only to domestic remedies which can be
considered to be "effective and sufficient" for the purpose of
rectifying the subject-matter of the complaint (see, for example, No.
11763/85, Dec. 9.3.89, D.R. 60 p. 128).
The Commission notes that under Finnish law the applicant had the
opportunity to request the Prison Governor to grant him greater freedom
to have money in his possession and to use it than prescribed by the
general regulation issued by the Prison Department of the Ministry of
Justice. The applicant has, neither in the Central Prison of Riihimäki
nor in the County Prison of Häme, lodged such a request. The Commission
finds that an individual's request to the relevant Prison Governor is
an "effective remedy" as regards the question of the right to have
money in one's possession and to use it.
The Commission concludes that the applicant has not exhausted the
remedies available to him under Finnish law. It follows that this part
of the application must be rejected, under Article 27 para. 3
(Art. 27-3) of the Convention, for failure to exhaust domestic
remedies.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy