AS TO THE ADMISSIBILITY OF
Application No. 26739/95
by Esko HELIN and Others
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 2 December 1994
by Esko HELIN and Others against Finland and registered on
20 March 1995 under file No. 26739/95;
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 applicants are set out in the Annex. They are represented by
Mr Erkki Laakso in Lahti.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants have been serving prison sentences in the
Riihimäki Central Prison. Some of them have now been released and one
applicant has been transferred to another prison.
On 21 November 1994 the applicants' representative before the
Commission, himself imprisoned at the time, complained to the Board
(johtokunta, direktionen) of the Riihimäki Central Prison about the
systematic inspection of correspondence. Contrary to the practice in
certain other Finnish prisons, the prisoners had to place their letters
unsealed in an internal mail box for final dispatching by prison staff.
This practice allegedly violated the prisoners' right to respect for
their privacy as guaranteed to them under the Convention.
In a letter to the applicants' representative dated 24 November
1994 the Prison Board considered that the practice of inspecting
correspondence was in compliance with the relevant legal provisions and
rules. The Board referred to chapter 2, section 9 (1) and (2) of the
1889 Decree on the Enforcement of Punishments (asetus 39/1889
rangaistusten täytäntöönpanosta, förordning 39/1889 om verkställighet
af straff, as amended in 1974). According to these provisions, the
Prison Governor or a prison official appointed by him may inspect
correspondence or packages to and from a prisoner. Letters shall not
be read, unless this is necessary for the purpose of preventing crime
or there is a reason for suspecting that the prisoner's right to send
and receive correspondence is being abused. If, for one of these
reasons, the letter or package is not delivered, it shall be returned
to the sender or handed over to the prisoner at the time of his or her
release, unless the nature of the correspondence renders this
impossible. Letters from the prisoner to an authority supervising the
prison or to his or her counsel must be immediately forwarded without
inspection.
On 1 May 1995 the above-mentioned Decree was renamed as the Act
on the Enforcement of Punishments and amended in several respects
(no. 128/1995). The provisions of the previous Decree now also prohibit
the inspection of incoming mail from counsel and authorities
supervising the prisons as well as the inspection of correspondence
between prisoners and international human rights bodies to which they
are entitled to complain.
A prisoner in a Finnish prison must ask for permission to make
a telephone call. Up to 1 May 1995 interception of calls was regulated
by a circular of the Ministry of Justice (of 24 June 1975). A call
which was to be intercepted either had to be made/received in the
presence of prison staff or staff could listen in on it by using an
extension. In the latter case the prisoner was to be informed of the
intended interception. Save for exceptional reasons calls between a
prisoner and his counsel could not be intercepted.
Pursuant to the above-mentioned 1995 Act a prisoner's telephone
call may now be intercepted only if this is deemed necessary in order
to prevent crime or there are special grounds for suspecting misuse of
the prisoner's right to make telephone calls. The prisoner and the
other party shall be notified of any intended interception. Calls to
and from a supervising authority or counsel shall not be intercepted
(section 9 (3)).
COMPLAINTS
1. The applicants complain that their right to respect for their
correspondence has been violated in the Riihimäki Central Prison.
Except for letters addressed to their counsel, the Minister of Justice,
the Department for Prison Administration, the President of the Republic
and the European Commission and Court of Human Rights, the applicants
were unable to seal their outgoing correspondence, with the result that
prison staff allegedly read it in their absence. Moreover, the
applicants have not been allowed to attend the inspection of incoming
correspondence - other than that emanating from the above-mentioned
sources - in order to verify that it was not being read.
2. The applicants also complain that telephone calls made by them
have been intercepted by prison staff.
The applicants invoke Article 8 of the Convention.
THE LAW
1. The applicants complain that their right to respect for their
correspondence has been violated due to the practice of systematic
inspection of certain categories of mail in the Riihimäki Central
Prison. They invoke Article 8 (Art. 8) of the Convention which reads,
in so far as relevant, as follows:
"1. Everyone has the right to respect for his private ...
life, ... 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."
Inspection and reading of prisoners' correspondence constitutes
an interference with the exercise of their right to respect for their
correspondence. Such an interference would contravene Article 8
(Art. 8) unless it was "in accordance with the law", pursued one or
more of the legitimate aims referred to in Article 8 para. 2
(Art. 8-2) and, furthermore, was "necessary in a democratic society"
in order to achieve them (see, Eur. Court HR, Silver and Others v. the
United Kingdom judgment of 25 March 1983, Series A no. 61, p. 32, para.
84; Kruslin v. France judgment of 24 April 1990, Series A no. 176-A,
p. 20, para. 26; Huvig v. France judgment of 24 April 1990, Series A
no. 176-B, p. 52, para. 25; and Campbell v. the United Kingdom judgment
of 25 March 1992, Series A no. 233, p. 16, para. 34). Nevertheless,
some measure of control of prisoners' correspondence is called for and
is not of itself incompatible with the Convention, particularly having
regard to the ordinary and reasonable requirements of imprisonment (see
the Silver and Others judgment, op. cit., p. 38, para. 98 and the
Campbell judgment, op. cit., p. 18, para. 45).
As regards notably the question whether an interference with
prisoners' correspondence would be "in accordance with the law" within
the meaning of Article 8 para. 2 (Art. 8-2), the Commission recalls
that this provision requires, first of all, that the interference
should have some basis in domestic law; that the law should be
adequately accessible and that it should be formulated with sufficient
precision to enable the citizen to regulate his conduct (see Eur. Court
HR, Silver and others judgment, op. cit., p. 33, paras. 85-88).
Nevertheless, while a law which confers a discretion must indicate the
scope of that discretion, it is impossible to attain absolute certainty
in the framing of the law, and the likely outcome of any search for
certainty would be excessive rigidity (see, among many other
authorities, the Silver and Others judgment, op. cit., p. 33,
para. 88).
In the present case the Commission notes that domestic law
empowers the Prison Governor or a prison official appointed by him to
inspect correspondence or packages to and from a prisoner. Letters
shall not be read, unless this is necessary for the purpose of
preventing crime or there is reason to suspect that the prisoner's
right to send and receive correspondence is being abused. If, for one
of these reasons, the letter or package is not delivered, it shall be
returned to the sender or handed over to the prisoner at the time of
his or her release, unless the nature of the correspondence renders
this impossible.
The Commission observes, moreover, that letters from the prisoner
to an authority supervising the prison or to his or her counsel must
be immediately forwarded without inspection. Finally, as from
1 May 1995 the relevant Act also prohibits the inspection of incoming
mail from counsel and authorities supervising the prisons as well as
the inspection of correspondence between prisoners and, among other
bodies, the Commission.
In the present case the Commission notes that the applicants had
to place part of their outgoing correspondence unsealed in an internal
mail box for final dispatching by prison staff. In addition, they were
not allowed to attend the inspection of part of their incoming
correspondence in order to verify that it was not being read. However,
as recalled above, some measure of control of prisoners' correspondence
is called for and is not of itself incompatible with the Convention
(see, e.g, the Campbell judgment referred to above).
Indeed the present applicants do not allege that their
correspondence with their counsel, authorities supervising the prison
or the Commission has been inspected and possibly read. Nor do they
complain of correspondence having been returned to its sender without
being delivered. As for the remainder of their purported
correspondence, the Commission finds that they have failed to provide
details of any letters which they suspect might have been inspected and
possibly read by prison staff. On this point the applicants' complaint
has not been sufficiently substantiated. In these particular
circumstances there is no appearance of a violation of Article 8
(Art. 8) of the Convention.
It follows that this complaint must be rejected as being
manifestly il-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants also complain that telephone calls made by them
have been intercepted by prison staff, this being contrary to the
above-cited Article 8 (Art. 8) of the Convention.
The Commission recalls that communication by telephone is
included in the concepts of "private life" and "correspondence" within
the meaning of Article 8 para. 1 (Art. 8-1) (see, e.g., Eur. Court HR,
Malone v. the United Kingdom judgment of 2 August 1984, Series A no.
84, p. 30, para. 64).
In the present case the Commission notes that, according to the
practice up to 1 May 1995 (laid down by the Prison Department's
circular letter of 1975), calls which were to be intercepted had to be
made/received in the presence of prison staff. Alternatively, staff
could listen in on the call by using an extension but only after having
notified the prisoner of the intended interception. Thus, any
interception of a prisoner's calls was necessarily brought to his or
her attention. Furthermore, save for exceptional reasons calls between
a prisoner and his or her counsel could not be intercepted. As from
1 May 1995 calls to and from a supervising authority shall not be
intercepted either.
The Commission finds that the present applicants have not in any
way specified even the nature of the calls which have allegedly been
intercepted either before or after the entry into force of the 1995 Act
(cf. also No. 25652/94, Dec. 12.4.96, not published). In these
circumstances the Commission considers that the applicants' complaint
has not been sufficiently substantiated. Accordingly, there is no
indication of any violation of Article 8 (Art. 8) of the Convention on
this point either.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber ANNEX
The applicants are:
1. Mr Esko J. HELIN; a prisoner in the Riihimäki Central
Prison;
2. Mr Juha P. PITKÄNIEMI, currently resident in Rauma;
3. Mr Kari KNUUTILA; a prisoner in the Riihimäki Central
Prison;
4. Mr Matti KIRJAKOFF; currently resident in Espoo;
5. Mr Timo PUNKKINEN; a prisoner currently in the Helsinki
Central Prison;
6. Mr Ari PIETARILA; currently resident in Turenki;
7. Mr Jari RYTTERHEIM; currently resident in Turku; and
8. Mr Juha LIEDES, currently resident at Ii.
Full & Egal Universal Law Academy