AS TO THE ADMISSIBILITY OF
Application No. 20946/92
by Sjirk VEENSTRA
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 31 August 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 12 May 1992 by
Sjirk VEENSTRA against the United Kingdom and registered on
13 November 1992 under file No. 20946/92;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
4 November 1993 and the observations in reply submitted by the
applicant on 9 February 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen born in 1936. At the date of
introduction of the application he was serving a sentence of 10 years'
imprisonment in HM Prison Saughton, Edinburgh. He is represented
before the Commission by Mrs. D. Haigh of Messrs. Shepherd and
Wedderburn WS, solicitors practising in Edinburgh.
The particular circumstances of the case
Since his imprisonment, the applicant was advised by his
solicitor in respect of:
1. An appeal against sentence in respect of his original
conviction.
2. An application to the European Commission of Human Rights
arising out of his failure to be advised in a language which he
understood of the details of the charges against him.
3. Claim against the Secretary of State in respect of injuries
sustained as a result of an accident which took place while he
was working in the prison greenhouse.
4. Difficulties regarding the opening of correspondence by the
prison authorities, of correspondence between the applicant and
his solicitors.
He states that throughout his detention from 1988 onwards, his
correspondence with his solicitors was regularly interfered with, in
that it was opened and perused by the prison authorities.
The applicant has submitted nine envelopes received from his
solicitors whilst he was in prison. They are postmarked as follows:
1. 12 March 1990
2. 11 September 1991
3. 18 September 1991
4. Not franked
5. 20 April 1992
6. 23 September 1992
7. 2 October 1992
8. 6 October 1992
9. 12 October 1992
All but the first of these letters is marked "Legal
correspondence". The applicant states that all these letters were
opened by the prison authorities, and that letters Nos. 2, 3, and 5,
and three further letters of 5 December 1991, 26 May 1992 and 17 June
1992 were opened without him being present. The parties agree that the
applicant made complaints to the prison authorities about his
correspondence on or around 28 April 1992, 18 May 1992, 20 August 1992
and 23 September 1992.
Relevant Domestic Law and Practice
Section 39(1) of the Prison (Scotland) Act 1989 states:
"The Secretary of State may make rules for the regulation and
management of prisons ... and for the classification, treatment,
employment, discipline and control of persons required to be
detained therein."
Rule 74(4) of the Prison (Scotland) Rules 1952 reads as follows:
"Subject to the provisions of Rule 50(4) every letter to or from
a prisoner shall be read by the Governor or by an officer deputed
by him for that purpose and it shall be within the discretion of
the Governor to stop any letter if he considers that the contents
are objectionable."
On 12 October 1992 changes to the regulations concerning legal
correspondence entered into force. Standing Orders Amendment Circular
6/92 states that prisoners` legal correspondence may only be opened
if there is a reason to believe that it contains an illicit enclosure
not detected by the normal means, but even such a letter should only
be opened but not read and it must be opened in the prisoner`s
presence. Legal correspondence may be read in exceptional circumstance
if the authorities have reasonable cause to believe that the privilege
is being abused. On 1 October 1993 an amended Rule 74 (4) of the
Prison Rules came into force. It provides that correspondence with a
legal adviser may only be opened if the Governor or an officer has
cause to believe that it contains a prohibited article, and the
prisoner is present. A letter may only be read in exceptional
circumstances where the Governor has reasonable cause to believe that
the contents of the letter endanger the security of the prison or the
safety of any person, or relate to a criminal activity.
On 19 May 1993 the Court of Appeal in England allowed an appeal
from a prisoner who challenged the English equivalent of Rule 74 (4)
(R. v Secretary of State for the Home Department, ex parte Leech). It
held that Rule 33(3) of the (English) Prison Rules 1964 was ultra vires
the rule-making power in Section 47 (1) of the Prison Act 1952 insofar
as it purported to apply to correspondence between prisoners and their
legal advisers.
COMPLAINTS
The applicant complains about the interference with his
correspondence with his solicitor and invokes Article 8 of the
Convention.
The applicant also complains of the opening of his correspondence
in the context of Article 6 para. 1 of the Convention in that the
correspondence concerns inter alia possible proceedings against the
prison authorities. He submits that this is prejudicial and discloses
an inequality of arms as he has no access to the prison authorities'
legal correspondence with their legal adviser.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 May 1992 and registered on
13 November 1992.
On 30 June 1993 the Commission decided to communicate the
application to the respondent Government and to request them to submit
written observations on admissibility and merits.
On 7 September 1993 the Commission decided to grant the applicant
legal aid.
The Government submitted their observations on 4 November 1993,
and the applicant submitted his observations in reply on 9 February
1994.
THE LAW
The applicant alleges violation of Articles 6 and 8
(Art. 6, 8) of the Convention by virtue of the interferences with his
legal correspondence. The Government accept that some correspondence
was opened which should not have been, but point out that the prison
authorities apologised at the time to the applicant for the opening of
those letters. They state that the prison authorities have no record
or knowledge of any other correspondence, so they are unable to comment
on it.
The applicant considers that the Commission should declare the
application admissible. He considers that the changes in the rules
have been brought about only very slowly and grudgingly, and have still
not been properly publicised.
The Commission is not required to decide whether the facts
relating to these complaints disclose any appearance of a violation of
the Convention as, under Article 26 (Art. 26) of the Convention, it may
only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
The Commission notes that in the English case of R. v. the
Secretary of State for the Home Department ex parte Leech (Court of
Appeal judgment of 19 May 1993) the English equivalent of the rules
governing interference with prisoners' legal correspondence up to 12
October 1992 was quashed by the Court of Appeal. In a decision of even
date herewith, the Commission agreed with the Government's contention
that the applicant in that case ought to have appealed against a
decision of the Court of Session to the House of Lords, given that the
English rules were under challenge (No. 20075/92). The applicant's
representative in the present case also represented the applicant in
Application No. 20075/92.
The Commission further notes that, although the applicant
complained to the prison authorities about interferences with his
correspondence, he did not apply for any court review of the rules as
such, nor did he challenge a specific incident of the opening or
reading of correspondence by the prison authorities before the Scottish
courts. Given the English Court of Appeal's decision in the case of
Leech, and the Commission's decision in Application No. 20075/92, the
Commission considers that the applicant's failure to attempt any form
of judicial review of the position in Scotland up to 12 October 1992
indicates that he has not exhausted the remedies available to him under
Scottish law. Moreover, an examination of the case does not disclose
the existence of any special circumstances which might have absolved
him , according to the generally recognised rules of international law,
from exhausting the domestic remedies at his disposal.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies, and the application must
therefore be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy