CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 décembre 1969

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts may be summarised as follows:   On 13th December, 1968 the Commission examined the above application and rejected for non-exhaustion of domestic remedies certain complaints made by the applicant with regard to his treatment in prison and the alleged interference with his correspondence by the prison authorities.   In his application the applicant also complained that the prison authorities at Ludwigshafen opened letters addressed to him by the Commission's Secretary before delivering such letters to him. The Commission considered this complaint under Article 25, paragraph (1) in fine of the Convention and found that it did not have full information in this respect. It therefore decided to invite the Government of the Federal Republic of Germany to submit any relevant observations and, in the meanwhile, to adjourn its examination of the question whether any further action was required in this regard.   On 21st January, 1969, the Commission's Secretary informed a representative of the German Ministry of Justice of the Federal Republic, of this decision and requested him to submit any relevant observations.   On 6th March, 1969, the same representative telephoned the Secretary and submitted the following comments:   Under Article 33, paragraph (1) of the Ordinance relating to the Execution of Detention on Remand (Untersuchungshaftvollzugsordnung) all letters addressed to a person who is detained on remand must be put before the competent judge or public prosecutor who, according to paragraph (2) of that provision, is authorised to open and examine such letters. Unless objection is made as to the contents of the letter concerned, it will be placed in a special envelope and transmitted to the prison authorities which, in turn, pass it on to the addressee. No distinction is made with regard to letters from the Commission or from other authorities.   On the other hand, under Article 28, paragraph (5) of the said Ordinance the right of a detained person to lodge complaints with parliamentary representatives in the Federal Republic or with the European Commission of Human Rights is unrestricted and, according to Article 34, paragraph (2), submissions to the Commission may not be held back. The representative of the Ministry of Justice pointed out that it followed from these provisions that similarly communications from the Commission may not be withheld by the German authorities.   He finally referred to the relevant provisions of the European Agreement relating to persons participating in proceedings of the European Commission and Court of Human Rights (1), and, in particular, to Article 3 thereof which provides:   "1. The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of this Agreement to correspond freely with the Commission and the Court.   2. As regards persons under detention, the exercise of this right shall in particular imply that: (a)   if their correspondence is examined by the competent authorities, its despatch and delivery shall nevertheless take place without undue delay and without alteration; (b)   such persons shall not be subject to disciplinary measures in any form on account of any communications sent through the proper channels to the Commission or the Court; (c)   such persons shall have the right to correspond, and consult out of hearing of other persons with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Commission, or any proceedings resulting therefrom. ------------------------------------------------------------ (1)   The Agreement was opened for signature on 6th May, 1969. ------------------------------------------------------------ 3. In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detention or prosecution of a criminal offence or for the protection of health."   THE LAW   Whereas, the only question which remains to be decided is whether or not the practice of the German prison authorities, as applied to the applicant in this case, of opening and reading letters addressed to an applicant by the Commission's Secretary before delivering such letters to him is consistent with Article 25, paragraph (1) (Art. 25-1), in fine, of the Convention; whereas this provision states that those of the High Contracting Parties who have made a declaration recognising the competence of the Commission to receive individual petitions undertake not to hinder in any way the effective exercise of this right;   Whereas the applicant maintained that it was inconsistent with his right of individual petition that the prison authorities should open and read the letters which are addressed to him by the Commission's Secretary and thus be completely informed about the state of the proceedings before the Commission;   Whereas the respondent Government argued that such practice was not only consistent with the relevant provisions of German law but was also in accordance with the European Agreement relating to persons participating in proceedings of the European Commission and Court of Human Rights;   Whereas the Commission finds that the practice complained of is, in fact, envisaged by Article 3, paragraph Secretary (a), of the European Agreement relating to persons participating in proceedings before the European Commission and Court of Human Rights and is implicitly approved by that provision; whereas, moreover, the Commission observes that there is nothing in the applicant's allegations to suggest that he has himself been restricted in his correspondence or otherwise in any way prevented from submitting his case to the Commission;   Whereas, in fact, he has made substantial submissions and presented his case in a completely adequate manner;   Whereas, in these circumstances, the Commission considers that the applicant has not been hindered in the effective exercise of the right to lodge an application as guaranteed in Article 25, paragraph (1) (Art. 25-1), in fine, of the Convention;   Now therefore the Commission   DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE ALLEGED INTERFERENCE WITH THE EFFECTIVE EXERCISE OF THE RIGHT OF INDIVIDUAL PETITION.