AS TO THE ADMISSIBILITY OF
Application No. 26320/95
by Erkki LAAKSO
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 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
N. BRATZA
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 3 June 1994 by
Erkki Laakso against Finland and registered on 26 January 1995 under
file No. 26320/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
11 January 1996 and the observations in reply submitted by the
applicant on 8 May 1996, the additional observations submitted
by the Government on 28 June 1996 and the applicant's additional
observations of 3 and 5 June and 19 September 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1965 and resident at
Lahti.
A. The particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
I.
In 1984 the applicant was convicted of various offences and
sentenced to imprisonment. On 15 February 1994 the Supreme Court
(korkein oikeus, högsta domstolen) dismissed his request for a
reopening of those proceedings.
II.
In 1989 the applicant requested that the presumption that his
mother's previous husband was his father should be quashed. The
District Court (kihlakunnanoikeus, häradsrätten) of Porvoo dismissed
the applicant's action. He appealed to the Court of Appeal (hovioikeus,
hovrätten) of Helsinki but later withdrew the appeal, following which
it was struck off (in 1989).
III.
In 1992 the City Court (raastuvanoikeus, rådstuvurätten) of
Hämeenlinna convicted the applicant, inter alia, of rape of a minor and
sentenced him to imprisonment. The Court of Appeal of Turku dismissed
his appeal. Leave to appeal to the Supreme Court was refused on
28 April 1994.
IV.
The applicant wished to institute private prosecution proceedings
against S, Chief Security Guard of the Parliament Building, for the
purpose of charging him with, inter alia, defamation, discrimination
as well as with an offence in office, all committed on
13 December 1991. When visiting the Parliament Building on that day,
the applicant had noticed photographs of himself which had been posted
on the inside of the security guards' counter at the front entrance.
S had informed him that due to his dangerous nature special security
measures had been taken in the building, including the posting of the
photographs of the applicant.
The applicant's request of 31 January 1992 that the City Court
of Helsinki summon S to appear before the Court was refused on
3 March 1992, Judge M. considering that the request did not meet the
legal requirements. The applicant was afforded an opportunity to
specify his claims. On 11 and 25 March as well as 29 April 1992 L again
refused to issue a summons as the applicant had not supplemented his
request properly.
Following a petition by the applicant, the Deputy Chancellor of
Justice (apulaisoikeuskansleri, justitiekanslersadjointen), on
21 October 1993, considered that a summons should have been issued in
spite of the somewhat vague wording of the applicant's request. On 16
November 1993 the City Court issued the summons. It was served on S on
14 December 1993. Hearings were held on 14 January and 8 April 1994
before Division 6/2 of the Helsinki District Court (käräjäoikeus,
tingsrätt; formerly the City Court), presided by Judge R and further
comprising another professional judge and two lay judges. The applicant
was granted a cost-free trial but the representative suggested by him
could not be appointed as his consent had not been obtained. The
applicant contends that in the course of the first hearing he also
requested that a summons be issued against the Parliamentary Ombudsman
(eduskunnan oikeusasiamies, riksdagens justitieombudsman) but that this
was allegedly refused without reasons. The District Court also took
witness testimony.
In February 1994 the applicant lodged private prosecution
proceedings before the Court of Appeal of Helsinki against Judge R,
charging her with an offence in office (see also VII below). Allegedly,
the minutes which she had kept from the District Court's hearing on
14 January 1994 in the case against S did not correspond to reality.
In her observations to the Court of Appeal Judge R apparently stated,
in March 1994, that the audio tapes from the District Court's hearings
had been destroyed.
Judge R having stepped down in the applicant's case against S,
a third and a fourth hearing were held on 8 and 22 June 1994 before
Division 6/4 of the District Court. All judges were new in the case.
During the oral proceedings before the District Court the charges
against S were extended to include also a purported offence against the
Act on Personal Files. In its judgment of 22 June 1994 the District
Court declined to examine the last-mentioned charge as it had not been
properly served on S. It dismissed the defamation charge, noting that
the proceedings had been brought on 14 December 1993, whereas the
charge had become time-barred on 13 December 1993. The charges for the
purported discrimination and offence in office were dismissed in the
absence of sufficient evidence. The applicant was ordered to compensate
S for his costs.
The public prosecutor had not supported the applicant's charges
but three different prosecutors attended the District Court's
respective hearings. In the course of the proceedings the public
prosecutor and the Central Criminal Police refused to investigate the
origin of the photographs posted in the Parliament Building. It
furthermore appears that the applicant's request for an inspection to
be held was refused by the District Court and that the Data Protection
Ombudsman was not afforded an opportunity to be heard.
The applicant appealed and requested that the Court of Appeal
listen to the audio tapes with the testimony given by the witnesses
examined before the District Court.
In its judgment of 21 September 1995 the Court of Appeal, without
having held an oral hearing and without having listened to the tapes,
partly quashed the District Court's judgment, considering that the
charge for the alleged offence in office had not been sufficiently
precise and should therefore not have been examined on its merits. The
Court of Appeal upheld the remainder of the judgment, adding however,
that the discrimination charge should also have been dismissed already
as being time-barred.
On 24 January 1996 the Supreme Court refused leave to appeal.V.
In February 1993 the applicant brought private prosecution
proceedings before the Court of Appeal of Helsinki against Judge M,
charging her with an offence in office committed as she had refused to
issue the summons requested by the applicant in order to bring
proceedings against S (see IV above). The applicant requested that
Judge M be summoned to appear in person before the Court of Appeal. The
applicant also requested that M be ordered to compensate him for his
pain, including his mental suffering, and to compensate his costs.
On 22 March 1994 the Court of Appeal considered that in refusing
to issue the requested summons M had acted wrongly out of carelessness.
However, as her behaviour had not amounted to negligence she was
acquitted. No oral hearing was held.
The applicant requested leave to appeal to the Supreme Court,
arguing, inter alia, that an oral hearing should have been held before
the Court of Appeal or that, at any rate, the Supreme Court ought to
hold such a hearing.
On 13 December 1994 the Supreme Court dismissed both the
applicant's request for an oral hearing and his appeal. It noted that
the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk)
did not clearly stipulate when a court of appeal, having been seized
with a matter as the first instance court, could decide the case merely
on the basis of written submissions. In practice, proceedings
concerning alleged offences in office were normally conducted in
writing. A court of appeal could decide to hold an oral hearing when
this was found necessary, for instance, for the purpose of clarifying
the matter or safeguarding the rights of the parties. The Supreme Court
concluded that an oral hearing before the Helsinki Court of Appeal had
not been necessary in the applicant's case against Judge M.
VI.
On 29 March 1994 the First Instance Court (käräjäoikeus, tings-
rätten) of Lahti dismissed the applicant's request that a summons be
issued in further paternity proceedings which he wished to institute.
The Court considered that the request did not meet the legal
requirements. The applicant did not appeal against this decision.
VII.
On 8 June 1995 the Court of Appeal, without having held an oral
hearing, acquitted R of the charges brought by the applicant (see IV
above). On 4 December 1995 the Supreme Court quashed the Court of
Appeal's judgment and remitted the case back for a new examination, as
the applicant had not been properly heard in the written proceedings
before the Court of Appeal.
VIII.
In August 1994 the applicant started serving a prison sentence.
In September 1994 he was transferred to the Riihimäki Central Prison,
where he was eventually placed on Ward I-2 for prisoners under special
supervision. This is a so-called closed ward with ten prisoners who
have expressed a wish to be separated from a larger number of prisoners
during, for instance, outdoor activities. On 19 October 1994 the
applicant handed over a letter "for information" to the Director of the
Department for Prison Administration of the Ministry of Justice, who
was then inspecting the prison. In this letter the applicant
questioned, inter alia, the allegedly systematic reading of his
correspondence by prison staff which, so the applicant argued, was in
breach of domestic law. He requested to be informed of the measures
which the Department intended to take so as to ensure that his
correspondence would not be unnecessarily and repeatedly read by
prison staff. On 29 September 1994 the Deputy Chief Guard had allegedly
expressed to him his concern about certain passages in a letter which
the applicant had been obliged to hand over to prison staff unsealed
for further dispatching. In that letter, addressed to the news editor
of one of the national TV channels, the applicant had argued that he
was being held in solitary confinement in violation of the law.
In his letter to the Director of the Department for Prison
Administration the applicant furthermore referred to his request to be
present when his outgoing mail would be inspected. At a meeting with
the Prison Governor on 3 October 1994 the applicant had been informed
that the prison staff was not violating domestic law by reading
outgoing mail. On 4 October 1994 the Deputy Chief Guard had informed
the applicant of the dismissal of his request to be present during the
inspection of his mail.
In a further letter to the Director of the Prison Administration
dated 22 November 1994 the applicant reiterated his request of
19 October for measures to be taken. He furthermore alleged that the
unlawful interference with his correspondence had continued and that
even letters from tribunals had been opened and read in his absence.
He finally referred to his application before the Commission which he
had supplemented on this point.
On 21 November 1994 the applicant and his fellow prisoners on the
ward complained to the Board (johtokunta, direktionen) of the prison
about the allegedly systematic inspection of their outgoing
correspondence. Reference was again made to the prisoners' obligation
to place their outgoing correspondence unsealed in an internal mail box
for final dispatching by prison staff. In addition, the prisoners were
not allowed to attend the inspection of either outgoing or incoming
correspondence.
In its reply of 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). The Prison
Governor had ordered that the prisoners' outgoing correspondence should
be inspected. The Chief Library Guard was in charge of emptying the
mailboxes on the wards and of inspecting the letters. If the prisoners
were to leave their correspondence sealed in a mailbox on their ward
it would be impossible to inspect it. The correspondence was not read,
unless this was necessary for the prevention of crime or there was
another reason to suspect abuse of the prisoners' right to conduct
correspondence.
On 2 December 1994 the applicant introduced an application before
the Commission on behalf of his fellow prisoners on Ward I-2
(Application No. 26739/95, Dec. 9.4.97, unpublished). In an article
published in a leading Finnish daily on 5 December 1994 the applicant
again requested the Director of the Prison Administration to take
measures so as to ensure that a prisoner's right to respect for his
correspondence would no longer be violated without justification and
that all prisons adopt the same practice. On the latter point he again
referred to the Riihimäki Central Prison, where all outgoing
correspondence had to be left unsealed to prison staff even if there
existed no suspicion that their right to conduct correspondence might
be abused. The applicant contrasted this practice with the rule in
force in the Helsinki Central Prison, where prisoners' outgoing
correspondence was not being opened or inspected except on the Prison
Governor's order and on the basis of a sufficiently strong suspicion
that the prisoner was preparing an escape or organising a delivery of
illegal substances.
According to the applicant, he received, on 7 February 1995, a
letter from the Commission dated 31 January 1995. According to the
Government, the letter arrived to the prison on 31 January 1995 and was
given to the applicant on 6 February 1995. The parties agree that the
letter had been opened by prison staff in the applicant's absence.
On 8, 9 and 10 February 1995 the applicant unsuccessfully
requested the Social Officer of the prison to grant him permission to
make photocopies of certain documents which he intended to enclose to
his request for pardon addressed to the President of the Republic.
On 10 February 1995 the applicant was transferred to a cell on
"the special ward" allegedly intended for solitary confinement
purposes. No reasons were allegedly given until 15 February 1995, when
the Deputy Prison Governor informed him that the transfer had been due
to "rearrangements".
According to the applicant, four other prisoners were also
transferred to "the special ward" on 10 February 1995 due to
"rearrangements". These prisoners were moved back to Ward I-2 on the
following day. During the applicant's placement in solitary confinement
it was allegedly made clear to him that he would be kept in such
conditions until his release, unless he requested a transfer to another
prison.
According to the Government, the prison records do not indicate
that the applicant was subjected to any disciplinary punishment in the
Riihimäki Central Prison. According to the Chief Guard, whom the
Government have heard, it is possible that the applicant had felt
threatened on Ward I-2 and had therefore requested to be placed on "the
special ward" while awaiting his transfer to the Helsinki Central
Prison. However, in their additional observations of 28 June 1996 the
Government stated that the transfer of the applicant and certain other
prisoners to "the special ward" was due to a forthcoming inspection of
Ward I-2.
According to the applicant, the conditions on "the special ward"
in the Riihimäki Central Prison are punitive in character. The cells
are some 150 centimetres underground and the windows are not
transparent. No water is available except during meals and there is no
electricity, TV or radio.
According to the Government, "the special ward" is intended for
prisoners who are not participating in the collective prison
activities. Eleven cells are reserved for prisoners awaiting the
processing of a disciplinary punishment order. There are also normally
equipped cells with a table, a bed, a toilet and a washbasin. These
cells are reserved for prisoners awaiting a transfer or release or
going on or returning from leave.
On 20 February 1995 the applicant was transferred to the Helsinki
Central Prison, where he was, at his own request, placed on a closed
ward for safety reasons.
It appears that in a letter of April or May 1995 the Director of
the Prison Department found no reason to take any action in response
to the applicant's letters of October and November 1994.
In September 1995 the applicant was released on parole.
B. Relevant domestic law
1. Inspection of prison correspondence
On 1 May 1995 the 1889 Decree on the Enforcement of Punishments
was afforded the status of an Act (no. 128/1995). According to
chapter 2, section 9 (1) and (2) (in force as from 1974), 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.
In 1993 the inspection of prison correspondence also became
governed by a general instruction issued by the Department for Prison
Administration (32/4/1992). This instruction prohibited the inspection
of a prisoner's letter to, among other bodies, the Commission.
Prior to the 1995 amendments to the 1889 Decree letters from
prisoners to an authority supervising the prison or to his or her
counsel were to be immediately forwarded without inspection. As from
1 May 1995 it is also prohibited to inspect incoming mail from counsel
and authorities supervising the prisons. The same is true for any
correspondence between prisoners and international human rights bodies
to which they are entitled to complain.
2. Remedies
A prisoner may complain of his treatment to the Prison Governor
or the Prison Board and further to the Department for Prison
Administration. He can also petition the Parliamentary Ombudsman, who
is particularly responsible for supervising the prisons. The Ombudsman
is empowered to order that charges be brought against, for instance,
prison staff and is assisted by deputies. A local public prosecutor may
also bring criminal charges of his own motion. Finally, the complainant
is entitled to institute private prosecution proceedings independently
of the Ombudsman's or the public prosecutor's view.
According to the Constitution Act (Suomen hallitusmuoto,
Regeringsform för Finland 94/1919), anyone who has suffered an
infringement of his rights, or damage, through an illegal act or
negligence on the part of a civil servant, is entitled to demand that
the civil servant be convicted and held liable for damages, or to
report him for the purpose of having charges brought against him
(section 93, subsection 2). Under the Tort Liability Act (vahingon-
korvauslaki, skadeståndslag 412/1974) proceedings for damages may also
be instituted against the State for actions taken by civil servants
(chapters 3 and 4).
COMPLAINTS
1. In his submissions of 28 December 1994 the applicant complained
that he was denied an oral hearing before the Supreme Court in the
private prosecution proceedings which he brought against Judge M (see
V above). The denial of an oral hearing discriminated against him on
the basis of his origin and political background. He invoked
Articles 6, 13 and 14 of the Convention.
2. In his original submissions the applicant complained that the
various court proceedings described above were not in conformity with
the Convention and Protocol No. 7. On 19 September 1996 he withdrew
this complaint in so far as it concerned the proceedings described in
VII above. In so far as can be ascertained from his submissions of
3 June 1996 he then made the following more specific complaints
relating to the private prosecution proceedings against S (see IV
above):
(a) There was an excessive delay in issuing the summons
requested by the applicant;
(b) the public prosecutor and the Central Criminal Police
refused to investigate the origin of the photographs picturing the
applicant and the prosecution also committed other offences in office;
(c) the applicant was denied assistance by a public legal aid
counsel of his own choosing;
(d) the applicant's request to have a summons issued also
against the Parliamentary Ombudsman was refused;
(e) the applicant's request for an inspection to be held by the
District Court was refused;
(f) the District Court did not offer an opportunity for the Data
Protection Ombudsman to be heard in the case;
(g) the District Court's composition and the public prosecutor
changed in the course of the proceedings;
(h) the Court of Appeal was unable to listen to the audio tapes
from the District Court's first hearings as they had been destroyed by
Judge R;
(i) the Court of Appeal should have held an oral hearing or
remitted the case back to the District Court;
(j) the outcome of the case was wrong, including the applicant's
obligation to compensate S for his costs; and
(k) the Supreme Court gave no reasons for refusing the applicant
leave to appeal.3. (a) In his submissions of 18 November 1994 the
applicant furthermore complained under Article 8 of the Convention
about the inspection of both his incoming and outgoing correspondence.
On 26 February 1995 he made particular reference to the opening of a
letter from the Commission dated 31 January 1995.
(b) In his submissions of 18 November 1994 and 26 February 1995
the applicant also complained, more generally, about the regime both
in the Riihimäki and Helsinki Central Prisons under which prisoners
were obliged to send off their letters in unsealed envelopes even after
their contents had been inspected. This complaint was withdrawn on
8 May 1996.
(c) In his submissions of 24 August 1995 the applicant also
alleged that telephone calls which prisoners made from the Helsinki
Central Prison were being tapped. This complaint was withdrawn on
8 May 1996.
4. In his submissions of 26 February 1995 the applicant furthermore
complained about his solitary confinement in the Riihimäki Central
Prison from 10 to 20 February 1995. The confinement allegedly violated
domestic law and was an act of revenge by the prison authorities in
response to the applicant's complaints to the Commission and domestic
bodies. He did not wish to invoke any particular Convention provision.
In his observations of 8 May 1996 he invoked solely Article 25 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 June 1994 and registered on
26 January 1995.
On 18 October 1995 the Commission (First Chamber) decided to
communicate the applicant's third and fourth complaints to the
respondent Government.
The Government's written observations were submitted on
11 January 1996. The applicant replied on 8 May after extensions of the
time-limit fixed for that purpose. The Government submitted additional
observations on 28 June 1996. The applicant submitted additional
observations on 3 and 5 June and 19 September 1996.
On 23 January 1996 the Commission granted the applicant legal
aid.
THE LAW
In view of the applicant's withdrawal of certain grievances on
8 May and 19 September 1996 the following complaints remain to be dealt
with by the Commission:
1. The applicant has complained that he was refused an oral hearing
before the Supreme Court in the private prosecution proceedings which
he brought against Judge M. The denial of an oral hearing also
discriminated against him on the basis of his origin and political
background. He invokes Articles 6, 13 and 14 (Art. 6, 13, 14) of the
Convention.
The Commission has first examined the lack of an oral hearing
before the Supreme Court. Article 6 para. 1 (Art. 6-1) reads, as far
as relevant, as follows:
"In the determination of his civil rights and obligations
... against him, everyone is entitled to a fair and public
hearing ... by an independent and impartial tribunal
established by law. ..."
The Commission need not determine whether Article 6 para. 1
(Art. 6-1) is applicable in the present case, as the complaint is in
any event inadmissible for the following reasons.
The Commission recalls Finland's reservation to Article 6
(Art. 6) which reads, in so far as relevant, as follows:
"In accordance with Article 64 of the Convention, the
Government of Finland makes the following reservation in
respect of the right to a public hearing guaranteed by
Article 6, paragraph 1 (Art. 6-1) of the Convention.
For the time being, Finland cannot guarantee a right to an
oral hearing in so far as the current Finnish laws do not
provide such a right. This applies to:
1. proceedings before..., the Supreme Court, ... in
accordance with ... chapter 30, section 20 of the Code of
Judicial Procedure, ...
The provisions of the Finnish laws referred to above are
attached to this reservation as a separate annex."
According to the annex, chapter 30, section 20 of the Code of
Judicial Procedure reads as follows:
"The Supreme Court shall, where appropriate, conduct an
oral hearing, where parties, witnesses and experts may be
heard and other accounts received. The oral hearing may be
restricted to part of a case subject to appeal.
The Supreme Court may also rule that the hearing of a
party, witness or expert shall take place in some other
court."
It has not been argued that the applicant had any unconditional
right under domestic law to obtain an oral hearing before the Supreme
Court. The absence of an oral hearing before the Supreme Court is
therefore covered by Finland's reservation. Accordingly, the Commission
finds no appearance of a violation of Article 6 para. 1 (Art. 6-1) in
respect of the lack of an oral hearing before that tribunal. Nor can
the Commission find any indication of a violation of Article 13 or
Article 14 (Art. 13, 14).
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. Excluding the proceedings described in VII above, the applicant
has also complained, more generally, that the various court proceedings
were not in conformity with the Convention and Protocol No. 7. On
3 June 1996 he lodged various more specific complaints regarding the
proceedings described in IV.
The Commission recalls that, in accordance with the generally
recognised rules of international law, the Convention only governs, for
each Contracting Party, facts subsequent to the entry into force of the
Convention with regard to that Party (see, e.g., No. 9453/81,
Dec. 13.12.82, D.R. 31, pp. 204, 208). The Convention entered into
force with regard to Finland on 10 May 1990. Moreover, 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.
As regards the allegedly excessive delay in the issuing of the
summons requested by the applicant in the proceedings described in IV
above, the Commission notes that this complaint focuses on a period
which ended with the actual issuing of the summons on 16 November 1993.
However, as the complaint to the Commission was introduced only on
3 June 1996, i.e. more than six months later, it must be rejected as
being belated pursuant to Article 27 para. 3 (Art. 27-3) of the
Convention.
The Commission furthermore considers that the absence of reasons
for the Supreme Court's refusal to grant the applicant leave to appeal
in the proceedings described in IV does not raise any issue under the
Convention or any of its Protocols. This complaint must therefore be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
As regards the outcome of the proceedings described in IV, the
Commission recalls that, in accordance with Article 19 (Art. 19) of the
Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties to the Convention. In particular,
it is not competent to deal with an application alleging that errors
of law or fact have been committed by domestic courts, except where it
considers that such errors might have involved a possible violation of
any of the rights and freedoms set out in the Convention (see, e.g.,
Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A
no. 140, p. 29, para. 45). On the point in question the Commission
finds no appearance of a violation of the rights and freedoms set out
in the Convention or its Protocols. This complaint must therefore also
be rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
The Commission notes that none of the applicant's further
grievances concerning the proceedings described in IV were put to the
Court of Appeal and the Supreme Court. It follows that domestic
remedies have not been exhausted in this respect and these complaints
must also be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the
Convention.
Finally, recalling its conclusion in para. 1 above and in so far
as the Commission is competent to examine the other proceedings
complained of, it finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. Accordingly, in so far as no other grounds for
inadmissibility are at hand, the applicant's remaining grievances must
also be rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
It follows that the whole of this complaint must be rejected in
accordance with Article 27 (Art. 27) of the Convention.
3. The applicant has furthermore complained under Article 8
(Art. 8) of the Convention about the inspection of his correspondence,
including a letter from the Commission of 31 January 1995.
Article 8 (Art. 8) of the Convention reads, in so far as
relevant, 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."
The Government submit that domestic remedies have not been
exhausted. The applicant did not petition the Parliamentary Ombudsman
and never lodged a complaint with the police. He also failed to
institute proceedings against the public officials responsible for the
inspection or, in the alternative, proceedings against the State in
order to obtain damages. He could also have complained to the Prison
Governor, the Prison Board and the Department for Prison
Administration.
In the alternative, the Government submit that the complaint is
manifestly ill-founded. They argue, on the one hand, that the
investigation which they conducted during the proceedings before the
Commission produced no evidence in support of the applicant's
allegation. On the other hand, the Government concede that a letter
from the Commission of January 1995 was opened before being given to
the applicant. This incident was a mistake by prison staff who were not
sufficiently informed of the international human rights supervisory
bodies. The Government submit, however, that the letter was not read
before being handed over to the applicant. There existed no practice
of opening the Commission's letters to him. On the contrary, domestic
law prohibited such a practice. The minor error which occurred in
respect of one letter from the Commission did not reach the threshold
required for finding a violation of Article 8 (Art. 8). The Government
have subsequently seen to it that staff in the Riihimäki Central Prison
have been made aware of the legal requirements pertaining to the
inspection of prisoners' correspondence.
Finally, the Government consider that the applicant has not
specified the nature of the other alleged interference with his
correspondence. They recall that in any event some measure of control
over prison correspondence is called for and is not of itself
incompatible with the Convention.
The applicant contends that he exhausted the domestic remedies
by petitioning the Director of the Prison Administration in October and
November 1994, by complaining to the Prison Board in November 1994. He
also refers to his newspaper article published in December 1994 in
which he again urged the Director of the Prison Administration to take
measures so as to ensure respect for prison correspondence. The
applicant finally argues that he could not be required to petition also
the Parliamentary Ombudsman, given that the then Ombudsman and himself
were enemies and the Ombudsman would therefore have been biased.
As regards the merits of his complaint, the applicant argues that
the inspection of his correspondence was neither foreseeable nor
proportionate to the aim pursued. As the letters were opened in his
absence he could not know whether and to what extent they were read by
prison staff. The Prison Governor and the Prison Board retained an
almost unlimited margin of appreciation. Not even the 1995 amendments
to the relevant law have rendered sufficiently foreseeable the
provisions governing the inspection of prison correspondence. Finally,
effective respect for his correspondence should have entailed affording
him a right to have photocopies taken of certain documents relating to
his request for pardon in February 1995.
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with a complaint after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law. Article 26 (Art. 26) must be applied in a
manner corresponding to the reality of the applicant's situation in
order to guarantee him effective protection of his rights and freedoms
set forth in the Convention. Where there is a choice of remedies,
Article 26 (Art. 26) must be applied to reflect the practical realities
of the applicant's position. The applicant must make "normal" use of
those remedies which are apparently effective and sufficient. It may
thus be sufficient for the purposes of Article 26 (Art. 26) if the
applicant has made full use of the possibility to seek the institution
of criminal proceedings against the prison staff, thus putting his
complaints in the hands of an authority which was competent to pursue
the matter. In such a situation he might not be required to embark on
further attempts to obtain redress (see No. 24760/94, Dec. 27.6.96,
D.R. 86-A, pp. 54, 71 and the further references therein). The burden
of proving the existence of available and sufficient remedies lies upon
the State (Eur. Court HR, Deweer judgment of 27 February 1980, Series
A no. 35, p. 15, para. 26).
The Commission notes that, as regards the applicant's general
grievance concerning the allegedly systematic inspection of his mail
in the Riihimäki Central Prison, he complained, in 1994, both to the
Prison Board and the Director of the Prison Administration. The
Commission considers, however, that these bodies cannot be considered
to have provided a remedy within the meaning of Article 26
(Art. 26). As furthermore regards the opening of the Commission's
letter of January 1995, the Commission finds no indication that the
applicant has complained about this incident to any domestic authority
even after it was acknowledged by the Government.
It is true that in spite of having acknowledged the opening of
the Commission's letter the Government, for their part, do not seem to
have taken any action either so as to have proceedings brought against
the responsible prison staff. However, Article 26 (Art. 26) must be
interpreted as placing the obligation to exhaust the domestic remedies
solely on the applicant. In the circumstances of the case the applicant
could have petitioned the Parliamentary Ombudsman, lodged a complaint
with the police or instituted private prosecution proceedings against
the prison staff. Given the existence of deputies to the Ombudsman, the
Commission is not convinced by the reason invoked by the applicant as
to why he did not petition the Ombudsman's office. The applicant thus
had various remedies at his disposal. At least part of these must be
considered effective and adequate for the purposes of Article 26 in
(Art. 26) respect of this aspect of the complaint (cf. Eur. Court HR,
A. v. France judgment of 23 November 1993, Series A no. 277-B, p. 48,
para. 32; No. 25052/94, Dec. 5.7.95, D.R. 82-A, p. 102 at pp. 114-115).
Accordingly, domestic remedies have not been exhausted as required by
Article 26 (Art. 26) of the Convention.
It follows that this complaint must be rejected pursuant to
Article 27 para. 3 (Art. 27-3) of the Convention.
4. The applicant has furthermore complained about his solitary
confinement in the Riihimäki Central Prison in February 1995. The
confinement allegedly violated domestic law and was an act of revenge
by the prison authorities in response to his complaints to the
Commission and domestic bodies.
The Government considers that this complaint is manifestly
ill-founded. They initially argued that the applicant's placement in
solitary confinement was based on his own wish and that it was lawful
and appropriate. Later the Government submitted that the applicant had
been removed from his normal ward due to a forthcoming inspection which
was to be held on that ward. In any event, he was able to avail himself
of his right under Article 25 (Art. 25) of the Convention to lodge and
pursue his application before the Commission.
The applicant refutes the Government's initial assertion that his
placement on "the special ward" was based on his own wish. He had no
reason to ask for a transfer as he was getting along well with his
fellow prisoners on the closed ward No. I-2. By transferring him away
from Ward I-2 the Prison Governor attempted to prevent him from
pursuing both his own application before the Commission as well as
No. 26739/95 which he had lodged on behalf of his fellow prisoners. He
therefore contends that his transfer and the treatment to which he was
subjected on "the special ward" violated his right to individual
petition under Article 25 (Art. 25).
The Commission takes note of the discrepancies between the
submissions of the Government as to the reasons for the applicant's
placement on "the special ward". The Commission finds no evidence,
however, that his placement on that ward made him suffer any prejudice
in regard to the presentation of his application before the Commission
or that he was in any way frustrated in the exercise of his right of
individual petition contrary to Article 25 para. 1 (Art. 25-1) in
fine.
For these reasons, the Commission, by a majority,
DECIDES TO TAKE NO FURTHER ACTION in respect of the alleged
interference with the effective exercise of the right of
individual petition; and
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy