CEDH · CASELAW;REPORTS;ENG — 4 mai 1993

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 16244/90                                 W.                               against                         the United Kingdom                      REPORT OF THE COMMISSION                       (adopted on 4 May 1993)   TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-19). . . . . . . . . . . . . . . . . . . . .1-2        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-14) . . . . . . . . . . . . . . . . . .1-2        C.    The present Report           (paras. 15-19). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 20-40) . . . . . . . . . . . . . . . . . . . .3-6        A.    Particular circumstances of the case           (paras. 20-29). . . . . . . . . . . . . . . . . .3-4        B.    Relevant domestic law and practice           (paras. 30-40). . . . . . . . . . . . . . . . . .4-6   III. OPINION OF THE COMMISSION      (paras. 41-70) . . . . . . . . . . . . . . . . . . . 7-12        A.    Complaints declared admissible           (para. 41). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 42). . . . . . . . . . . . . . . . . . . . .7        C.    Article 8 of the Convention           (paras. 43-58). . . . . . . . . . . . . . . . . 7-10             1.    Letter of 27 October 1988                (paras. 45-51) . . . . . . . . . . . . . . .8-9             2.    Letter of 3 February 1989                (paras. 52-58) . . . . . . . . . . . . . . 9-10        D.    Article 13 of the Convention           (paras. 59-67). . . . . . . . . . . . . . . . .10-11        RECAPITULATION      (paras. 68-70) . . . . . . . . . . . . . . . . . . . . 12   PARTIALLY DISSENTING OPINION OF MM. S. TRECHSEL, E. BUSUTTIL, A. WEITZEL, H.G. SCHERMERS, MRS. G.H. THUNE, MM. C.L. ROZAKIS, L. LOUCAIDES AND G.B. REFFI. . . . . . . . . . . . 13   APPENDIX I      HISTORY OF THE PROCEEDINGS . . . . . . . . . 14   APPENDIX II     PARTIAL DECISION AS TO ADMISSIBILITY . . .15-25   APPENDIX III    FINAL DECISION AS TO ADMISSIBILITY . . . .26-30   I.INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant, W., is a British citizen born in 1952 and currently serving a sentence in HM Prison Perth.   He is represented by Messrs Drummond Miller, solicitors practising in Edinburgh.   3.    The application is directed against the United Kingdom.   The Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   4.    The case concerns the applicant's complaints that two of his letters were stopped by the prison authorities and that he has no effective remedy for his complaints.   It raises issues under Articles 8 and 13 of the Convention.   B.    The proceedings   5.    The application was introduced on 9 January 1990 and registered on 26 February 1990.   6.    On 11 July 1990, the Rapporteur requested the Government to submit information on the applicant's complaints concerning interference with his correspondence.   7.    The Government submitted their reply on 10 September 1990 and 15 April 1991.   The applicant submitted his comments in reply on 30 December 1990 and 9 May 1991.   8.    On 12 December 1991, the Commission decided to communicate the application to the respondent Government for their observations on the admissibility and merits of the applicant's complaints concerning two of his letters.   It declared the rest of the application inadmissible.   9.    The Government submitted their written observations on 9 March 1992 and the applicant his written observations in reply on 28 May 1992.   10.   The Commission granted the applicant legal aid on 10 July 1992.   11.   On 12 October 1992, the Commission declared the remainder of the application admissible.   12.   The parties were then invited to submit any additional observations on the merits of the application.   13.   The applicant made a further brief submission by letter dated 9 March 1993.   14.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.    The present Report   15.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   C.A. NØRGAARD, President                S. TRECHSEL                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS                H. DANELIUS           Mrs. G.H. THUNE           Sir   Basil HALL           MM.   F. MARTINEZ                C.L. ROZAKIS           Mrs. J. LIDDY           MM.   L. LOUCAIDES                M.P. PELLONPÄÄ                G.B. REFFI   16.   The text of the Report was adopted by the Commission on 4 May 1993 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   17.   The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is        1)   to establish the facts, and        2)   to state an opinion as to whether the facts found disclose          a breach by the State concerned of its obligations under          the Convention.   18.   A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decisions on the admissibility of the application as APPENDICES II and III.   19.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    Particular circumstances of the case   20.   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.   21.   The applicant introduced Application No. 13081/87 before the Commission on 16 May 1987.   That application, which concerned various complaints concerning his arrest and trial, was declared inadmissible on 14 December 1988.   22.   The applicant alleges that since he started serving his sentence his correspondence has been interfered with.   23.   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.   24.   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.   25.   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.   26.   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.   27.   The applicant gave in   to be posted a letter dated 3 February 1989 to Councillor Murray, a member of the Scottish Labour Party's working party on the penal system. It contained the description of an alleged incident in which 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. One of the officers was named. The letter was stopped and returned to the applicant with the instruction to re-write the first page. The re- written letter was sent out without problem.   28.   By petition dated 3 October 1989 to the Secretary of State, the applicant complained, inter alia, of interference with the above letters.   29.   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.   B.    Relevant domestic law and practice   General regime   30.   The system of prisons in Scotland is governed by the Prisons (Scotland) Act 1989 (which Act consolidated certain enactments relating to prisons and other institutions for offenders in Scotland). Section 39(1) of the Act provides that:        "The Secretary of State may make rules for the regulation and      management of prisons and for the classification, treatment,      employments, discipline and control of persons required to be      detained therein."   31.   In exercise of his powers to make such rules the Secretary of State had made the Prison (Scotland) Rules 1952 (S.I. 1952/565) ("the Rules").   32.   To supplement these statutory provisions the Secretary of State issues advice and instructions to the Governors of prisons by way of administrative Orders, collectively known as the Prison (Scotland) Standing Orders, and administrative circulars.   Correspondence   33.   Communications between prisoners and others are governed principally by Rule 74 of the Rules.   Rule 74(4) provides that every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose.   The only exceptions to this general rule are those contained in Rule 50(4), i.e. a letter of request or complaint to the Secretary of State or the Visiting Committee which may not be opened by the Governor if it is sealed by the prisoner.   34.   These Rules are supplemented by Standing Order M, which deals in detail with communications between prisoners and others.   Copies of this Standing Order are available to prisoners and the public.   35.   For the purposes of examination and censorship Standing Order Ma6 divides correspondence, both incoming and outgoing, into 5 groups.   The applicant's letters in this case fall into category (e), that is general correspondence with other individuals.   Under Standing Order Ma7 such correspondence must not contain any of the material specified in that Standing Order.   36.   Standing Order Ma7(k)(iv) provides that general correspondence in the general category (e) mentioned above may not contain material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it refers to individual inmates or members of staff in such a way as they might be identified.   The prohibition of the inclusion in general correspondence of material of this nature is designed to protect the rights and interests of the individuals who have been identified.   Remedies   37.   The following are the principal remedies available to an aggrieved prisoner:        (i)        internal channels of complaint,        (ii)       complaint to the Parliamentary Commissioner for                Administration,        (iii)      judicial remedies.   i. Internal channels of complaint   38.   A prisoner who is aggrieved by a decision may complain to a prison Governor, the Visiting Committee, a visiting officer of the Secretary of State, or he may petition to the Secretary of State himself.   The prisoner may raise his complaint through any or all of these channels and, if more than one is utilised, in such sequence as he wishes.        (a)   The Visiting Committee        In terms of Rule 194(1) the Visiting Committee are required to      hear and investigate any application or complaint which any      prisoner may desire to make to them; and, if necessary, report      the same, with their opinion, to the Secretary of State.   The      Visiting Committee will in practice draw to a Governor's      attention any decision complained of which is inconsistent with      the Rules and the Standing Orders; or the Committee may report      on the matter to the Secretary of State.   Although the Visiting      Committee's powers are advisory in character, its advice is taken      seriously and implemented wherever possible.        (b)   Petitions to the Secretary of State        Prisoners have the right to petition the Secretary of State about      any matter, for example to seek the overruling of a decision of      local prison management of which a prisoner is aggrieved, or to      complain of prison treatment, misapplication of the Rules,      Standing Orders etc.   ii. The Parliamentary Commissioner for Administration   39.   The Parliamentary Commissioner for Administration (commonly known as the Ombudsman) has jurisdiction under the Parliamentary Commissioner Act 1967 to investigate complaints of maladministration in Government Departments.   Such complaints may be raised with him by any member of Parliament, and the Commissioner also considers complaints raised directly with him by members of the public, including prisoners, and refers these to a Member of Parliament.   He must report investigations he makes both to the Member of Parliament concerned and also to the head of the relevant Department and may make appropriate recommendations.   He also reports periodically to Parliament on his activities.   Any departure from the statutory or administrative rules governing regulation of prisons may amount to maladministration. However this jurisdiction does not extend to restrictions effected pursuant to a correct exercise of a discretion conferred by the Prison Rules or Standing Orders.   iii. Judicial remedies   40.   The exercise by the Secretary of State or the prison authorities of their powers and duties is, in Scotland, subject to the supervisory control of the Court of Session by way of proceedings for judicial review.   In the exercise of this jurisdiction, the Court will intervene to ensure that the Secretary of State or the prison authorities act lawfully and within the limits of their powers.   If the Court finds that the Secretary of State or the prison authorities have acted without lawful powers or have exercised their powers improperly, unreasonably or otherwise in an ultra vires manner, the court can grant a range of remedies including the annulment of the ultra vires act and, where appropriate, damages.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   41.   The Commission declared admissible the applicant's complaints that two of his letters were stopped by the prison authorities.   B.    Points at issue   42.   The issues to be determined are:        - whether the stopping by the prison authorities of the      applicant's letter of 27 October 1988 to the Chief Constable of      Strathclyde Police constituted an interference with the      applicant's right to respect for his correspondence in violation      of Article 8 (Art. 8) of the Convention;        - whether the stopping by the prison authorities of the      applicant's letter of 3 February 1989 to Councillor Murray      constituted an interference with the applicant's right to respect      for his correspondence in violation of Article 8 (Art. 8) of the      Convention;        - whether the applicant had an effective remedy for his      complaints as required by Article 13 (Art. 13) of the Convention.   C.    Article 8 (Art. 8) of the Convention   43.   Article 8 (Art. 8) of the Convention provides insofar 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."   44.   The Commission refers to its constant case-law that a prisoner has the same right as a person at liberty to respect for his correspondence, the ordinary and reasonable requirements of imprisonment being of relevance in assessing the justification for any interference with that right under the exceptions permitted by Article 8 para. 2 (Art. 8-2) of the Convention.   Any stopping, reading, screening or delay of prisoners' correspondence by prison authorities, in principle, constitutes an interference with prisoners' right to respect for correspondence (Silver and Others v. the United Kingdom, Comm. Report 11.10.80, Eur. Court H.R., Series B no. 51, paras. 269-271 and 423-426).   1.    Letter dated 27 October 1988 to the Chief Constable of      Strathclyde Police   a)    Interference   45.   This letter was stopped by the prison authorities and not sent until twelve days later on 8 November 1988.   46.   This constitutes an interference with the applicant's correspondence. The Commission must therefore examine whether this interference was justified under the second paragraph of Article 8 (Art. 8-2), namely, whether it was "in accordance with the law" and if so, whether it was necessary for one or more of the reasons specified in the second paragraph.   b)    Compliance with Article 8 para. 2 (Art. 8-2)        aa) "in accordance with the law"   47.   The Commission has had occasion in several cases concerning prisoners in the United Kingdom to analyse whether the Prison Rules, supplemented by Standing Orders and applied to censor correspondence, are in accordance with the law within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   The Commission found that, in principle, where censorship is specifically provided for in the Prison Rules 1964, as amended (applicable in England and Wales), or may be said to flow clearly from the Secretary of State's powers under Rule 33(1) of those Rules "with a view to securing good order and discipline", such restrictions are in accordance with the law within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention (cf. Silver and Others Report loc. cit., paras. 281-285, 336-338, 376-377).   Furthermore, while standing orders on the censorship of correspondence did not have the force of law, they   had been made public and available to prisoners.   In the Commission's opinion, the censorship practices contained in the relevant standing order and grounded in the legal authority of the Prison Rules, in principle, satisfied the requirements of the rule of law (accessibility and foreseeability), embodied in the phrase "in accordance with the law" in Article 8 para. 2 (Art. 8-2) (cf. Grace v. the United Kingdom, Comm. Report 15.12.88, para. 86).   48.   The Commission recalls that this case concerns the Prison Rules and Standing Order applicable in Scotland rather than England but finds no reason to differ from the conclusions above. However the Government have acknowledged that there was an informal and unsanctioned agreement at the time between the prison governor and the police to accompany allegations of the kind contained in the applicant's letter by an explanation of the broader context. They further explain that the resulting delay in forwarding the letter was caused by disturbances in the prison.   49.   The Commission notes that there is no provision in the relevant rules and standing orders for the practice adopted by the prison authority in this case. While the delay might have been an unintended result, the informal agreement nonetheless appears to have been the operative cause of the interference with the applicant's letter. The Commission finds that the interference was not "in accordance with the law" as required by the second paragraph of Article 8 (Art. 8-2).        bb) "necessary in a democratic society"   50.   In light of the above finding it is unnecessary for the Commission to examine whether the interference was also "necessary" within the meaning of the above provision.   c)    Conclusion   51.   The Commission concludes, unanimously, that there has been a violation of Article 8 (Art. 8) of the Convention in respect of the letter of 27 October 1988.   2.    Letter of 3 February 1989 to Councillor Murray   a)    Interference   52.   This letter was returned to the applicant by the prison authorities with instructions to re-write the first page. It contained complaints of the conduct of prison officers, including allegations of assault.   53.   The Government state that they have been unable to verify the reason for the letter being returned nor attribute the handwriting of the instruction "Re-write" to any of the prison officers who might have handled the letter.   Assuming that it was stopped by a prison officer they submit that the reason could have been that it was addressed to a working party that had only recently been set up and whose modus operandi might not have been publicly established.   In those circumstances it is submitted that a prison officer might have stopped the letter under Standing Order Ma7(k)(iv) as being material likely to be published and containing specific and serious allegations about the conduct of one named prison officer.   54.   The Commission acknowledges the Government's difficulty in verifying the circumstances of the alleged stopping in this case. It notes however that the Government do not systematically record incidents of stopping of letters and censorship of their contents. In the absence of any concrete indication to the contrary, the Commission accepts the applicant's statement that the letter was returned by the prison authorities with instruction to re-write. This constituting an interference with the applicant's correspondence, the Commission must therefore examine whether it was justified under the second paragraph of Article 8 (Art. 8-2), namely, whether it was "in accordance with the law" and if so, whether it was necessary for one or more of the reasons specified in the second paragraph.   b)    Compliance with Article 8 para. 2 (Art. 8-2)        aa) "in accordance with the law"   55.   The Commission recalls that the page to be re-written referred by name to a prison officer.   It is therefore accepted as alleged by the Government that it was stopped under Standing Order Ma7(k)iv. In these circumstances the Commission finds that the interference was in accordance with the law as required by the second paragraph of Article 8 (Art. 8-2) of the Convention.        bb) "necessary in a democratic society"   56.   The Commission recalls that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In this context, the Contracting States enjoy a margin of appreciation (see eg. Eur. Court H.R., the Sunday Times judgment (no. 2) of 26 November 1992, Series A no. 217 para. 50).   57.   The Government have put forward the legitimate aim of protecting the right of the prison officer who had been named in the letter from having the imputations made against him published. The applicant has not disputed this as a constituting a legitimate aim. The Commission further recalls that the letter was addressed to a Councillor who was Chairman of a Labour Party Working Party on penal reform which had only recently been set up. In these circumstances, the Commission finds that the cautious reaction of the prison authorities regarding the possibility of publication was not a disproportionate response. Consequently, the resulting interference could be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   c)    Conclusion   58.   The Commission concludes, by 9 votes to 8 that there has been no violation of Article 8 (Art. 8) of the Convention in respect of the letter of 3 February 1989.   D.    Article 13 (Art. 13) of the Convention   59.   Article 13 (Art. 13) of the Convention provides that:        "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."   60.   Article 13 (Art. 13) of the Convention does not, however, require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if an individual can be said to have an arguable claim of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).   61.   In the present case, given the Commission's decision as to the admissibility of the complaints, the applicant has an arguable claim for the purposes of Article 13 (Art. 13) of the Convention.   62.   The Commission must therefore examine the effectiveness of the remedies available in respect of these complaints.   63.   The Commission recalls that in the case of Silver (loc. cit.) the Commission and the Court were of the opinion that the applicants did not have access to effective domestic remedies, as envisaged by Article 13 (Art. 13) of the Convention, for the alleged breaches of their right to respect for correspondence ensured by Article 8 (Art. 8) of the Convention.   Moreover, the Commission and the Court considered that the possible channels for prisoners' complaints, i.e. the English courts, the Parliamentary Commissioner for Administration, the Board of Visitors and the Home Secretary, were inadequate for the purposes of Article 13 (Art. 13).   In particular, while a petition to the Secretary of State might be effective when a complaint was directed against the misapplication of one of his directives, it would not be so when the complaint concerned the validity of the directive itself (Commission's Report, Series B no. 51, pp. 101-104, paras. 435-453; Eur. Court H.R., Silver judgment of 25.3.83, Series A no. 61, pp. 42-44, paras. 111-119).   64.   As in the Silver case (loc. cit.), the remedies advanced by the respondent Government are the Parliamentary Commissioner, the Board of Visitors, the Courts and the Secretary of State.   As found by both the Commission and the Court in the Silver case, the first three do not constitute an effective remedy in respect of this type of correspondence complaints.   Whether the Secretary of State could do so depends on the nature of the complaint.   If it concerns the application or implementation of the prison norm, the Secretary of State provides an effective remedy.   If, on the other hand, it concerns the validity of the norm itself, the Secretary of State cannot be considered a sufficient remedy as required by Article 13 (Art. 13) (see also No. 9511/81, McCallum v. the United Kingdom, Comm. Report 4.5.90, Series A no. 183, pp. 26-28, paras. 66-72).   65.   As regards the stopping of the letter of 27 October 1988, the Commission notes that this was pursuant to an informal arrangement that had no sanction under the prison rules and standing orders. The Commission therefore finds that the complaint is directed against a failure to implement the relevant directives rather than their validity. Similarly, the complaint concerning the stopping of the letter of 3 February 1989 is directed against the improper application of Standing Order Ma7(k)iv rather than its general compatibility with the Convention.   66.   Accordingly the Commission finds that there was an effective remedy available, namely, the possibility of petitioning the Secretary of State. The Commission notes that the applicant in fact made use of this remedy but that he was informed that one complaint was unsupported by evidence and that the prison authorities had no knowledge of the matters alleged in the second. In the absence of any indication or evidence to the effect that as a matter of practice petitions to the Secretary of State are not properly or adequately examined, the unsuccessful use of this avenue of complaint does not deprive it of its established character as an effective remedy for the purposes of Article 13 (Art. 13) of the Convention.        Conclusion   67.   The Commission concludes, by 15 votes to 2, that there has been no violation of Article 13 (Art. 13) of the Convention.   RECAPITULATION   68.   The Commission concludes, unanimously, that there has been a violation of Article 8 (Art. 8) of the Convention in respect of the letter of 27 October 1988 (see para. 51 above).   69.   The Commission concludes, by 9 votes to 8, that there has been no violation of Article 8 (Art. 8) of the Convention in respect of the letter of 3 February 1989 (see para. 58 above).   70.   The Commission concludes, by 15 votes to 7, that there has been no violation of Article 13 (Art. 13) of the Convention (see para. 67 above).   Secretary to the Commission         President of the Commission        (H.C. Krüger)                         (C.A. Nørgaard)     PARTIALLY DISSENTING OPINION OF MM. S. TRECHSEL, E. BUSUTTIL,          A. WEITZEL, H.G. SCHERMERS, MRS. G.H. THUNE,          MM. C.L. ROZAKIS, L. LOUCAIDES AND G.B. REFFI        Letter of 3 February 1989 to Councillor Murray        We regret that we cannot agree with the majority of the Commission that there has been no violation of Article 8 of the Convention in relation to the stopping of the above letter (see paras. 56-58).        As regards the necessity of the interference within the meaning of the second paragraph of Article 8, we reach a different conclusion. The Government have put forward as the legitimate aim of the interference the purpose of protecting the right of the prison officer who had been named in the letter from having the imputations made against him published. We note however that the letter was addressed to a Councillor who was Chairman of a Working Party on penal reform. It is not apparent to us that the contents of such letters are the likely subject of publication or that they could reasonably be suspected as being such. Having regard to the importance that prisoners are able to make use of appropriate "safety valves" for their grievances and frustrations and the normal protection offered against publication of defamatory material by domestic law, we consider that the stopping of the letter cannot be regarded as justified by "a pressing social need" and, consequently, the interference cannot be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention.   In conclusion there has been a violation of Article 8 of the Convention in respect of the stopping of the letter of 3 February 1989.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                           Item ________________________________________________________________   09.01.90        Introduction of the application   26.02.90        Registration of the application   Examination of admissibility   11.07.90        Rapporteur's request to the Government for information   10.09.90        Government's reply to request   30.12.90        Applicant's response to Government   13.04.91        Government's further comments   09.05.91        Applicant's further response   12.12.91        Commission's decision to invite the parties to submit                observations on the admissibility and merits on the                applicant's complaints concerning two of his letters.                The remainder of the application was declared                inadmissible.   09.03.92        Government's observations   28.03.92        Applicant's reply   10.07.92        Commission's grant of legal aid   12.10.92        Commission's decision to declare the remainder of the                application admissible   Examination of the merits   12.10.92        Commission's deliberations on the merits   05.12.92        Consideration of the state of proceedings   04.05.93        Commission's deliberations on the merits, final votes                and adoption of the Report