CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1992

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 16244/90                       by S.W.                       against the United Kingdom           The European Commission of Human Rights sitting in private on 12 October 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 9 January 1990 by Mr. S.W. against the United Kingdom and registered on 26 February 1990 under file No. 16244/90;         Having regard to   -      the report provided for in Rule 47 of the Rules of Procedure of       the Commission;     -    the observations submitted by the respondent Government on       9 March 1992 and the observations in reply submitted by the       applicant on 28 May 1992 ;         Having deliberated;         Decides as follows:     THE FACTS           The applicant is a British citizen born in 1952 and currently serving a prison sentence in H.M. Prison Perth. The applicant is represented by Drummond Miller W.S., solicitors practising in Edinburgh.         The facts of the case as submitted by the parties may be summarised as follows.         On 27 November 1985, the applicant was convicted of armed robbery and sentenced to 20 years imprisonment.   His appeal against conviction was dismissed on 21 November 1986, but his sentence reduced to 14 years.         The applicant introduced application no. 13081/87 before the Commission on 16 May 1987.   His application, which concerned various complaints concerning his arrest and trial, was declared inadmissible on 14 December 1988.         The applicant alleges that since he started serving his sentence his correspondence has been interfered with.         On or about 27 October 1988, the applicant gave in to be posted a letter to the Chief Constable of Strathclyde. The letter was opened and read.   The applicant states that he was questioned as to the contents which, inter alia, reported a prison officer for theft.   The applicant alleged that he had given a prison officer £6 on one occasion to buy him a tape from a record shop and three blank tapes to record music for him on another.   He alleged that the prison officer kept these items and denied that they had been given to him.         The Prison Governor forwarded the letter on 8 November 1988 with a letter attached in which she gave details of the internal prison enquiry, to the effect that the prison officer alleged to have stolen the applicant's property denied the allegation emphatically. The Government submit that the Governor had already commenced an investigation into the matter before the letter was stopped and that the letter was delayed only because there had been a recent disturbance in the prison and the Governor did not have the time to deal with the matter immediately. Following an incident at the prison six months earlier, when the police had been called in to deal with an allegation of   theft which apparently was based on the conduct of a prison officer who tasted some left-over curry, the Governor had made an informal agreement with the police to accompany any similar complaint in future by an explanation of the broader context and the circumstances surrounding the complaint. The purpose of the arrangement was to avoid the inappropriate deployment of police resources.         By letter dated 6 December 1988, the police asked the Governor to inform the applicant that his complaints were being investigated. It appears from that letter that the applicant had been interviewed by the police on 15 November 1988. By a telephone message from the police on 27 January 1989, the applicant was informed that the Procurator Fiscal had decided to take no further action in the matter.         The applicant later instituted civil proceedings against the prison officer in the Sheriff Court.   The Sheriff Court dismissed his case on 23 June 1989.   In the case stated for appeal to the Sheriff Principal, the Sheriff referred to the fact, as admitted or proved, that the applicant's letter of 27 October 1988 had been intercepted by the prison authorities and as a result, an internal investigation carried out by a senior prison officer before the letter was sent on 8 November 1988.   The applicant apparently did not pursue the appeal.         The applicant gave in   to be posted a letter dated 3 February 1989 to Councillor Murray, chairman of the Social Work Department and a member of Lord Macaulay's working party on the penal system. It contained the description of an alleged incident in which unnamed prison officers assaulted   a prisoner in the cell above him, following which other prisoners smashed their cells in protest and were in turn assaulted by prison staff. He alleges that the letter was stopped and that he was instructed to re-write the first page. He states that the re-written letter was sent out without problem.         By petition dated 3 October 1989 to the Secretary of State, the applicant complained, inter alia , of interference with the above letters.         By letter dated 15 November 1989, the Secretary of State replied as follows:         -concerning the letter to the Chief Constable : that there was no evidence to substantiate the applicant's allegations;         -concerning the letter to Councillor Murray : that the prison authorities had no knowledge of these matters.     COMPLAINTS           The applicant complains of interference with his correspondence by the prison authorities.   He also submits that he has no effective remedy in respect of his complaints.   He invokes Articles 8 and 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 9 January 1990 and registered on 26 February 1990.         On 11 July 1990, the Rapporteur requested the respondent Government to submit information on the applicant's complaints concerning interference with his correspondence.         The Government's reply was submitted on 10 September 1990 and 15 April 1991 and the applicant's comments in reply were submitted on 27 November, 30 December 1990 and 9 May 1991.         On 12 December 1991, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application in respect of two of the applicant's allegations of interference with his correspondence by the prison authorities. The remainder of the applicant's complaints were declared inadmissible.         The Government's observations were submitted on 9 March 1992 after one extension in the time-limit and the applicant's observations in reply were submitted on 28 May 1992.         On 10 July 1992, the Commission decided to grant legal aid to the applicant.   THE LAW         The applicant complains of interference by the prison authorities with two of his letters and invokes Articles 8 and 13 (Art. 8, 13) of the Convention.         Article 8 (Art. 8) of the Convention provides as relevant:         "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."         Article 13 (Art. 13) of the Convention provides:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."           The respondent Government submit that the applicant has failed to exhaust domestic remedies in respect of his complaints.         They submit in respect of the letter of 27 October 1988 to the Chief Constable that the applicant was still in the course of complaining about it to prison officials at the time that he introduced his complaint before the Commission and that he did not provide the prison authorities with relevant evidence. Also he did not renew his petition to the Secretary of State.         In respect of the letter of 3 February 1989, the respondent Government submit that the applicant also failed to exhaust domestic remedies since he did not complain at the time to the Secretary of State and he again hindered later investigations by not providing the authorities with a copy of the stopped letter.         The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress.   An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78). The Commission's case-law establishes that the possiblity of requesting an authority to reconsider a decision taken by it will not generally constitute an effective remedy for the purposes of Article 26 (Art. 26) of the Convention (cf. No. 7729/76, Dec. 17.12.76, D.R. 7 p. 164).         It is furthermore established that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf. Eur. Court. H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96, at p. 102).         As regards the letter of 27 October 1988, the Commission recalls that the applicant had already complained about interference with it in his petition of 3 October 1989 to the Secretary of State to which he had received the reply that there was no evidence to support his allegations. As regards the allegation that the applicant later hindered investigations by failing to produce his evidence, the Commission notes that the matters of which he complained should have been, and in fact were known to the prison authorities who, for whatever reason, failed initially to recall the matter in question.         As regards the letter of 3 February 1989, the Commission recalls that the applicant did raise the matter a number of months later in his petition of 3 October 1989 after he had in fact re-written part of the letter and had it sent out. It notes that there is no requirement in the relevant prison rules and standing orders that a complaint must be made within a certain time. Further, there is no indication that when the   applicant submitted his petition the prison authorities asked him to provide a copy of the letter.         In these circumstances, the Commission finds that the applicant has complied with the requirements of Article 26 (Art. 26) of the Convention and that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.         The Commission has made a preliminary examination of the parties' observations on the substance of the complaints under Articles 8 and 13 (Art. 8, 13) of the Convention. It considers that they   raise serious issues of fact and law which are of such complexity that their determination should depend on an examination on the merits. The application cannot therefore be regarded as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.   Secretary to the Commission        President of the Commission         (H. C. KRüGER)                         (C. A. NØRGAARD)