AS TO THE ADMISSIBILITY OF
Application No. 23198/94
by László BECK
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 15 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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;
- the application introduced on 21 June 1993 by László BECK against
Hungary and registered on 6 January 1994 under file No. 23198/94;
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
14 July 1994 and the observations in reply submitted by the
applicant on 22 September 1994 and by his representative on
28 February 1996;
- the supplementary observations of 7 May 1996, submitted by the
respondent Government;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1953, is a Hungarian national. He resides
in Kaposvár, Hungary. When lodging his application, he was serving a
sentence in the Budapest Prison (Budapesti Fegyház és Börtön). Before
the Commission he has been represented by Mr. István Horváth and
Mr. Attila Horváth, lawyers practising in Budapest, as from December
1995.
A. Particular circumstances of the case
The facts, as they have been submitted by the parties, may be
summarised as follows.
1. In 1990 criminal proceedings were instituted against the
applicant on charges of larceny. It appears that in 1991 the Kaposvár
District Court (Kaposvári Városi Bíróság) convicted him of larceny and
sentenced him to six years' imprisonment, as confirmed by the Somogy
County Regional Court (Somogy Megyei Bíróság) in 1992.
In March 1992, apparently subsequent to the applicant's final
conviction, one of his accomplices, who had been co-accused and heard
as a witness in the above proceedings, informed the applicant that he
had been allegedly forced by police officers to give false evidence.
Shortly afterwards the applicant initiated criminal proceedings
before the Investigation Office of the Kaposvár Prosecution (Kaposvári
Ügyészségi Nyomozó Hivatal) against the police officers, who had
conducted the investigations in his case. He accused the police
officers in question of having committed the offence of abuse of
official power (hivatali visszaélés) in that they had influenced his
accomplice to state that he had committed the offences together with
the applicant.
On 3 February 1993 the Investigation Office discontinued the
investigations against the police officers in question. The Office
found that the applicant had failed to substantiate his allegations.
On 10 March 1993 the Kaposvár District Public Prosecutor's Office
(Kaposvári Városi Ügyészség) dismissed the applicant's complaint about
the decision of 3 February 1993.
On 27 April 1993 the Somogy County Public Prosecutor's Office
(Somogy Megyei Foügyészség), upon the applicant's further complaint,
quashed the decisions of 3 February and 10 March 1993 and instructed
the Kaposvár District Public Prosecutor's Office to provide for a full
investigation of the matter.
On 13 September 1993 the Somogy County Public Prosecutor's
Office, in the resumed proceedings, again discontinued the
investigations against the police officers in question. On 9 February
1994 the Attorney General's Office (Legfobb Ügyészség) dismissed the
applicant's complaint.
2. Whilst detained in the Budapest Prison, apparently from August
1992 onwards, the applicant exchanged correspondence with his family
and also sent and received other mail.
In her correspondence, the applicant's wife complained that the
applicant had allegedly received some letters with considerable delay,
whereas some others had allegedly never reached him, and that his
letters to his family were also delayed. She also complained to the
authorities of the Budapest Prison about the alleged interference with
her correspondence with the applicant.
In particular, in her letter of 7 August 1992, the applicant's
wife enquired whether the applicant had received one of her previous
letters containing photographs of their daughter. In her letter of
24 August 1992 she, referring to the applicant's letter in reply,
complained that the applicant had apparently not received the said
letter containing the photographs and that it took the applicant's
letter in reply ten days to reach her. In her letter of 29 September
1992, she enquired why the applicant had not answered her letter mailed
in early September. In her letter of 9 November 1992, received by the
applicant on 17 November 1992, she expressed the fear that her three
letters mailed during October 1992 might not have been handed over to
her husband. In her letter of 15 November 1992 she complained in
general terms that letters might not have been handed over to the
applicant.
The applicant allegedly complained about the alleged interference
with his correspondence to the prison authorities.
On 5 November 1992 the applicant lodged a complaint regarding the
interference with his correspondence with the Somogy County Public
Prosecutor's Office. On 4 December 1992 the Public Prosecutor's Office
informed him that it would take no action upon the complaint. The
Prosecutor's Office found that it was not clear that the complaint had
in fact concerned the alleged on-going interferences within the
Budapest Prison, where the applicant was actually serving his sentence.
Moreover, the official letter containing the decision of the
Investigation Office of the Kaposvár Prosecution, dated 3 February
1993, apparently received at the Budapest Prison on Friday, 19 February
1993, was opened by the prison authorities. The text of the decision
was handed over to the applicant allegedly three days after its
arrival.
On 9 March 1993 the applicant raised complaints about the
interference with his correspondence before the Budapest Public
Prosecutor's Office. On 26 May 1993 the penitentiary supervising public
prosecutor (bv. felügyeleti ügyész), on the occasion of one of his
regular visits to the Budapest Prison on behalf of the Budapest Public
Prosecutor's Office, heard the applicant and established that no
interferences by the prison authorities had occurred. The applicant
accepted the prosecutor's findings.
Meanwhile, the official letter containing the decision of the
Somogy County Public Prosecutor's Office, dated 27 April 1993, was
received at the prison and opened by the prison authorities on 1 May
1993. The text of the decision was handed over to the applicant
allegedly ten days after its arrival.
Apparently in October 1993 the applicant was transferred to the
Márianosztra Prison (Márianosztrai Büntetésvégrehajtási Intézet).
Furthermore, the applicant's letter to the Commission, dated
18 October 1993, in which he complains inter alia about previous
interferences with his correspondence, reached the Commission on
8 November 1993. The date of mailing was illegible on the envelope.
According to the applicant's submissions of 6 November 1993, his
two letters addressed to his wife, dated 1 November 1993, were
allegedly stopped by the prison authorities in the Kaposvár Prison,
where he had been temporarily transferred.
On 29 June 1995 the Governor of the Budapest Prison heard the
applicant concerning his complaints about interference with his
correspondence.
On 12 April 1996 the penitentiary supervising public prosecutor
heard the applicant who stated not to have any actual complaints about
the interference with his correspondence in the Budapest Prison.
B. Relevant domestic law and practice
According to S. 36 para. 1 (b) of Law-Decree No. 11 of 1979 on
the enforcement of punishments and measures (a büntetések és
intézkedések végrehajtásáról szóló 1979. évi 11. törvényereju
rendelet), as amended, inmates are entitled to correspond with their
relatives and persons designated by them and approved by the prison
authorities; the frequency and length of letters are not subject to any
restrictions. S. 36 para. 5 provides for a control of inmates'
correspondence for reasons of security, except for letters sent to
public authorities and to international organisations; inmates are
entitled to be informed about the possibility of control. According
to S. 36 para. 1 (g), the inmate may state, or complain about, alleged
violations of his rights with the prison authorities or with other
state organs.
Order No. 8/1979. /VI.30./IM (8/1979. /VI.30./IM r.), issued by
the Minister of Justice (igazságügyi miniszter), sets out the Prison
Rules. According to Rule 22 of the Prison Rules, an inmate may lodge
complaints and apply for the remedying of any individual injury. His
complaint and application shall be settled by the competent special
service of the institution, except when the matter belongs to the
competence of the governor. If the inmate is not satisfied with the
measures taken by the competent special service, he may complain with
the governor, and afterwards with the National Headquarters of the
Penal Institutions. No further complaint lies against the measures
taken by the National Headquarters. Complaints have no suspensive
effect. According to Rule 27 para. 2, the inmate may request to be
heard by the competent public prosecutor.
S. 11 (a) of Act No. V of 1972 on Public Prosecution (a Magyar
Köztársaság Ügyészségérol szóló 1972. évi V. törvény), as amended,
provides inter alia that the public prosecutor may supervise the
lawfulness of the conditions of detention, detention on remand, forced
medical treatment and the execution of the detention. According to
S. 11 (c), the public prosecutor may hear inmates and examine
complaints concerning the execution of sentences. The organs competent
for the execution of sentences are required to comply with the public
prosecutor's instructions concerning the lawfulness and the conditions
of detention on remand.
According to S. 70/K of the Hungarian Constitution (Alkotmány),
as amended by Act No. XXXI of 1989 (1989. évi XXXI. törvény), claims
based on the violation of fundamental rights and objections regarding
decisions taken by public authorities in the performance of their
functions can be brought before a court. It follows from the official
commentary, attached to Act No. XXXI of 1989, that S. 70/K was intended
to create the possibility of access to court in respect of claims
against other persons or the state in connection with the fundamental
rights. Section 59 para. 1 of the Constitution ensures the right to a
good reputation, the right to respect for one's home and the protection
of private secrets and personal data.
The Hungarian prison authorities do not keep registers on the
dates when letters are handed over to them by prisoners and when they
are actually mailed.
COMPLAINTS
1. The applicant complains about his conviction and the alleged
unfairness of the proceedings concerned. He submits in particular that
his co-accused was influenced by police officers to give evidence
against him.
2. The applicant further complains about interference with his
correspondence to and from his family and also with Hungarian
authorities and the Commission. He claims that the letters, opened by
the prison authorities, were often either delayed or stopped. He also
submits that his complaints were to no avail. The applicant does not
invoke any specific provision of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 June 1993 and registered on
6 January 1994.
On 11 May 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 14 July
1994. The applicant replied personally on 16 September 1994 and also
filed further correspondence.
On 24 October 1995 the Commission granted the applicant legal
aid.
The Commission's Secretariat subsequently provided assistance to
the applicant in arranging for his legal representation. The applicant
was represented as from 14 December 1995. Observations in reply to the
Government's observations were submitted by the applicant's
representative on 2 March 1996.
On 7 May 1996 the Government submitted supplementary
observations.
THE LAW
1. The applicant complains about his conviction and the alleged
unfairness of the proceedings concerned. He submits in particular that
his co-accused was influenced by police officers to give evidence
against him.
The Commission notes that the applicant's conviction by the
Kaposvár District Court dates back to 1991 and was confirmed by the
Somogy County Regional Court some time in 1992.
The Commission recalls that Hungary ratified the Convention on
5 November 1992 and that the Convention only governs, for each
Contracting Party, facts subsequent to its entry into force with
respect to that Party. Consequently only proceedings subsequent to this
date fall within the competence of the Commission.
Even, however, assuming its competence ratione temporis to
examine these proceedings and compliance with Article 26 (Art. 26) of
the Convention, the Commission finds that the applicant has failed to
substantiate his allegations as to the unfairness of the proceedings.
His submissions do not disclose any appearance of a violation of his
Convention rights and, in particular, of his rights under Article 6
(Art. 6).
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. The applicant further complains about interference with his
correspondence to and from his family and also with Hungarian
authorities and the Commission. He claims that the letters, opened by
the prison authorities, were often either delayed or stopped. He also
submits that his complaints were to no avail.
The applicant's complaints fall to be considered under Article 8
(Art. 8) of the Convention which, as far as relevant, provides as
follows:
"1. Everyone has the right to respect for ... 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."
a. The Government submit that the Commission is not competent
ratione temporis to examine the applicant's complaints to the extent
that they concern events prior to 5 November 1992, the date of entry
into force of the Convention in respect of Hungary.
The applicant submits that the several occasions of interference
with his correspondence shortly before the date of ratification of the
Convention cannot be separated from events of interference subsequent
to the ratification. He argues that the interferences in question in
fact were of a continuous character.
The Commission notes that part of the applicant's complaints
about interferences with his correspondence, in particular his
correspondence with his wife, relate to a period prior to 5 November
1992, which is the date of the entry into force of the Convention with
respect to Hungary. However, the Convention only governs, for each
Contracting Party, facts subsequent to its entry into force with
respect to that Party (cf. No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146).
These events cannot, therefore, be examined by the Commission
ratione temporis. In this respect the Commission notes that the alleged
interferences with the applicant's correspondence in fact constituted
a series of distinct occasions, rather than a practice of continuous
interference. Moreover, the applicant failed to show that any decision
on complaints relating to the period prior to 5 November 1992 was taken
after that date and could accordingly be examined by the Commission.
Consequently, this part of the applicant's complaint under
Article 8 (Art. 8) is outside the competence ratione temporis of the
Commission.
b. The Government further maintain that the applicant failed to
exhaust, as required by Article 26 (Art. 26) of the Convention, the
domestic remedies available to him under Hungarian law. According to
the Government, the applicant, in addition to complaints to the prison
authorities and to the public prosecutor, could have also brought the
matter before a court, pursuant to S. 70/K of the Hungarian
Constitution. They consider that S. 70/K, which was introduced in 1989,
created an effective remedy for the purposes of Article 26 (Art. 26),
although there is no case-law on the application of this provision.
The applicant considers that this remedy as set out by the
Government could not be regarded as effective for the purposes of
Article 26 (Art. 26). According to the applicant, the possibility of
a complaint with the public prosecutor's office does not allow for a
review of the matter complained about by an independent and impartial
body or tribunal. He is also of the opinion that S. 70/K of the
Constitution is of a declaratory nature and does not as such create an
effective remedy.
Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with the matter 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.
The Commission recalls that the only remedies which Article 26
(Art. 26) of the Convention requires to be exercised are those that are
both available and sufficient in respect of the violation alleged. The
existence of such remedies must be sufficiently certain not only in
theory but also in practice, failing which they will lack the requisite
accessibility and effectiveness. Moreover, it is for the State to prove
that there exist available remedies which have not been utilised by
those concerned (see Eur. Court HR, Deweer v. Belgium judgment of
27 February 1980, Series A no. 35, pp. 15 and 16, paras. 26 and 29,
with further references; De Jong, Baljet and Van den Brink v. the
Netherlands judgment of 22 May 1984, Series A no. 77, p. 19, para. 39).
The Commission notes that the applicant complained about
interferences with his correspondence to the Governor of the Budapest
Prison, and also to the public prosecutor of the Budapest Public
Prosecutor's Office on the occasions of the latter's visits in prison.
As regards the court action referred to in S. 70/K of the
Hungarian Constitution, the Commission notes that the Hungarian
Government were unable to cite a single instance in which a plaintiff
had instituted court proceedings under S. 70/K of the Constitution, as
amended in 1989. This absence of case-law indicates the uncertainty
of this remedy in practical terms. Accordingly, the Government have
not shown that this action could constitute an available and sufficient
remedy that the applicant ought to have exhausted.
It follows that the applicant's complaint about interference with
his correspondence cannot be rejected for non-exhaustion of domestic
remedies under Article 27 para. 3 (Art. 27-3) of the Convention.
c. The Commission has next examined the applicant's submissions
about the alleged interferences with his correspondence to the extent
that the period subsequent to the Hungarian ratification is concerned,
namely, the opening of private letters and of letters transmitting
decisions of Hungarian authorities upon complaints raised by the
applicant in the course of his detention, as well as the alleged
stopping and delays in the delivery of letters.
The Commission considers that the opening of the letters in
question amounts to an interference with the applicant's right to
respect for correspondence, which falls to be justified under Article 8
para. 2 (Art. 8-2).
The Government submit that the opening of the letters in question
was lawful and necessary in the interest of prison security.
As to the lawfulness of the said interference, the applicant
argues that the Hungarian legislation authorising interference with
prisoners' correspondence lacks the sufficient clarity and detailed
criteria for the control of a prisoner's correspondence.
The Commission finds that the opening of the letters was based
inter alia on S. 36 para. 5 of Law-Decree No. 11 of 1979 on the
enforcement of punishments and measures, which provides for a control
of inmates' correspondence for reasons of security, except for letters
sent to public authorities and to international organisations; inmates
are entitled to be informed about the possibility of control. The
Commission, having due regard to the applicant's submissions on this
point, finds that the legal provisions concerned complied with the
requirements as to clarity and foreseeability. The interference was
thus "in accordance with the law".
Moreover, the Commission considers that the letters were opened
for "the prevention of disorder and crime" within the meaning of
Article 8 para. 2 (Art. 8-2).
As regards the question of necessity, the Commission recalls that
the Contracting States have a certain margin of appreciation in
assessing the need for an interference, but it goes hand in hand with
European supervision (Eur. Court HR, Crémieux v. France judgment of
25 February 1993, Series A no. 256-B, p. 62, para. 38).
The Government claim, in particular, that the prison authorities
were entitled to open the letters arriving from the prosecution
authorities to confirm that they had been in fact sent by an official
body. In their view, there existed a risk that letters which appeared
to come from the prosecution authorities could be used as a channel for
illicit materials. Moreover, having regard to the length of the
applicant's imprisonment and to the amount of mail apparently received
and sent out by the applicant, the Government argue that the incidence
of the openings, as complained of by the applicant, shows the merely
occasional character of the control. They assert that the randomised
control of the inmates' correspondence - let alone that of letters sent
by official bodies - is necessary for the security of prisons.
The Commission recalls that the Contracting States enjoy a
certain but not unlimited margin of appreciation in the matter of the
imposition of restrictions of, in the instant case, confidentiality of
correspondence. To be compatible with the Convention, such an
interference must, inter alia, correspond to a "pressing social need"
and be "proportionate to the legitimate aim pursued". In assessing
whether an interference with the exercise of the right of a convicted
prisoner to respect for his correspondence was "necessary" for one of
the aims set out in Article 8 para. 2 (Art. 8-2), regard has to be paid
to the ordinary and reasonable requirements of imprisonment. Moreover,
the Court has recognised that some measure of control over prisoners'
correspondence is called for and is not of itself incompatible with the
Convention (cf., Eur. Court HR, Silver and others v. the United Kingdom
judgment of 25 March 1983, Series A no. 61, pp. 37-38, paras. 97-98).
Problems may arise under the Convention inter alia where there
has been an interference with an inmate's correspondence with his
solicitor or with European human rights control bodies (cf., Eur. Court
HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series
A no. 233).
The Commission notes that, in the present case, the control
exercised by the Hungarian prison authorities related to the
applicant's private correspondence and to letters transmitting
decisions of Hungarian authorities upon complaints raised by the
applicant in the course of his detention.
As regards the opening of some letters transmitting decisions of
the domestic authorities, the Commission considers that there were no
particular reasons, such as the maintenance of the confidentiality of
correspondence, militating against the opening of the letters in
question. In the Commission's opinion, what might be at stake for the
applicant due to the eventual disclosure of the contents of these
letters by the prison authorities, does not outweigh the State's
general concerns as to the security of prisons.
As regards the control of the applicant's incoming private mail,
the Commission considers that the occasional opening of a prisoner's
letters, chosen at random, does not exceed the scope of control
measures warranted by the ordinary and reasonable requirements of
imprisonment, as recognised by the Court in its case-law, and is not
beyond the limits of a permissible control of prisoners'
correspondence.
Accordingly, the Commission finds that the opening of the letters
in question can reasonably regarded as "necessary in a democratic
society" within the meaning of Article 8 para. 2 (Art. 8-2). Thus this
interference with the applicant's correspondence was justified under
Article 8 para. 2 (Art. 8-2) of the Convention.
As to the alleged further interferences, the Government maintain
that the applicant has failed to substantiate that his correspondence
was delayed or not delivered due to interferences on the part of the
prison authorities.
The applicant maintains that the official letter containing the
decision of the Investigation Office of the Kaposvár Prosecution, dated
3 February 1993 and received at the Budapest Prison on 19 February
1993, was handed over to him three days later. Another official letter
containing the decision of Somogy County Public Prosecutor's Office,
dated 27 April 1993, was received at the prison on 1 May 1993 and the
text of the decision was handed over to him allegedly ten days after
its arrival. His letter to the Commission, dated 18 October 1993,
reached the Commission on 8 November 1993. His two letters addressed
to his wife, dated 1 November 1993, were allegedly stopped by the
prison authorities in the Kaposvár Prison.
The Commission finds that the applicant's submissions are not
sufficient to show whether, as a result of the control of the
applicant's correspondence or otherwise on account of the handling of
mail by the prison authorities, any unacceptable delays occurred or
that in fact letters were stopped.
In sum, the applicant's submissions do not, therefore, disclose
any breach of his rights under Article 8 (Art. 8) of the Convention.
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.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy