CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 22048/93                       by M.S.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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 31 January 1993 by M.S. against Austria and registered on 1 June 1993 under file No. 22048/93;        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      17 June 1994 and the observations in reply submitted by the      applicant on 17 July 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1938.   He is detained at Garsten prison, where he is serving several prison sentences.   He has been represented by Mr. J. Lindlbauer, lawyer, of Enns, since October 1994.   The facts of the case may be summarised as follows.        The particular circumstances of the case        The applicant wanted to correspond with a former prisoner, a Mr. Hammerer.   He requested permission, pursuant to Section 86 of the Execution of Sentences Act (Strafvollzuggesetz) for such correspondence.   The prison Governor refused to give permission on 12 March 1992.   The applicant's complaint to the Minister of Justice was refused on 14 September 1992.   The applicant made a constitutional complaint to the Constitutional Court (Verfassungsgerichtshof) and an administrative complaint to the Administrative Court (Verwaltungsgerichtshof).        The Constitutional Court refused legal aid and declined to deal with the applicant's constitutional complaint on 30 November 1992.   It held that, to the extent that questions of constitutional law were involved, the complaint had no sufficient prospect of success.   As the issue was not one which was excluded from the jurisdiction of the Administrative Court, the Court was able to decline to deal with the case pursuant to Article 144 para. 2 of the Federal Constitutional Law (Bundes-Verfassungsgesetz).   The Court expressly stated that, as it had declined to deal with the matter, it was not required to consider a complaint the applicant had made concerning the requirement that a lawyer must sign constitutional complaints.        On 9 September 1993 the Administrative Court, which had granted legal aid on 29 September 1992, dismissed the applicant's administrative complaint.   It recalled the wording of Section 86 (3) of the Execution of Sentences Act, and noted that the administrative authorities had not assumed any danger to the security or order of the institution.   If the administrative authorities were therefore right to see no expectation of a positive influence on the applicant from the correspondence with Mr. Hammerer, the fact that security and order were not at risk was irrelevant.        The Administrative Court rejected the applicant's argument that he should be allowed to correspond unless there were reasons to the contrary, as not complying with the wording of Section 86 (3).   The Administrative Court found that the administrative authorities had been right not to permit the correspondence with Mr. Hammerer.   The Administrative Court also refused the applicant's request for a hearing.        Relevant domestic law        Section 86 (3) of the Execution of Sentences Act provided at the relevant time:        "Notwithstanding the provisions of Sections 88 and 96, written      correspondence with persons other than those set out in sub-      section 2 [which relates to correspondence with relatives and      guardians] shall only be permitted on the request of the prisoner      and only to the extent that it can be expected that the      correspondence will have a positive influence on the prisoner,            will further his subsequent development or otherwise be of            use for him, and that there is no fear that the security            and order of the institution will be endangered by the            correspondence".        An amendment to Section 86 came into force on 1 January 1994. The section now provides:        "(1)   Subject to the provisions of this Act, prisoners are      allowed to be visited by and have written correspondence with and      telephone calls from other persons and agencies ...        (2)    However, written correspondence, telephone calls and visits      shall be denied if there is reason to fear that the security and      order of the institution will be endangered or that they will      have a negative influence on the prisoner ..."   COMPLAINTS        The applicant alleges a violation of Articles 6, 8 and 10 of the Convention.        In connection with Article 6, the applicant alleges that the requirement the a lawyer sign constitutional complaints, or in the alternative the refusal of legal aid for his constitutional complaint, violates the provision, in particular as he is, himself, a former lawyer and the complaint he submitted complied with all the requirements for a valid complaint save that it did not bear the signature of an enrolled lawyer.   He also refers to Articles 13 and 14 in this respect.        In connection with Articles 8 and 10 of the Convention, the applicant considers that the interference with his correspondence was not justified.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 31 January 1993 and registered on 1 June 1993.        On 3 March 1994 the Commission decided to bring the application to the notice of the respondent Government and to request observations on the admissibility and merits of the complaint made under Article 8 of the Convention.        The Government submitted their observations on 17 June 1994 and the applicant submitted his observations in reply on 17 July 1994.        On 6 September 1994 the Commission decided to grant legal aid to the applicant.   THE LAW   1.    The applicant alleges a violation of Article 6 (Art. 6) of the Convention in connection with the rule of Austrian law that constitutional and administrative complaints must be signed by a lawyer.   He also alleges violation of Articles 13 and 14 (Art. 13, 14) in this respect.        Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:        "1.    In the determination of his civil rights and obligations      ..., everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law."        Even assuming that Article 6 (Art. 6) applies to the proceedings brought by the applicant, the Commission notes that the Constitutional Court declined to deal with the case and expressly stated that it was not required to consider the question of who was allowed to sign such complaints.   The Administrative Court in turn dealt with the substance of his complaint, even though it is not clear whether it had been signed by a lawyer entitled to practice.        It follows that the applicant has not been affected by the rule he complains of, such that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant also alleges violation of Articles 8 and 10 (Art. 8, 10) of the Convention in connection with the interference with his correspondence.        Article 8 (Art. 8) of the Convention provides, 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."        Article 10 (Art. 10) of the Convention provides, so far as relevant, as follows:        "1.    Everyone has the right to freedom of expression.   This      right shall include freedom to hold opinions and to receive and      impart information and ideas without interference by public      authority and regardless of frontiers ...        2.     The exercise of these freedoms, since it carries with it      duties and responsibilities, may be subject to such formalities,      conditions, restrictions or penalties as are prescribed by law      and are necessary in a democratic society, in the interests of      national security, territorial integrity or public safety, for      the prevention of disorder or crime, for the protection of health      or morals, for the protection of the reputation or rights of      others, for preventing the disclosure of information received in      confidence, or for maintaining the authority and impartiality of      the judiciary."        The Government submit that the interference with the applicant's correspondence was in accordance with the law in that it was prescribed by Section 86 (3) of the Execution of Sentences Act, and that it served the purpose of preventing disorder or crime.   They further submit that restrictions on prisoners' correspondence are necessary in the interest of the protection of society and the prevention of crime.   They point out that the applicant had been convicted twice of inciting a person to give false evidence, and that other proceedings were pending in connection with incitement to give false evidence.   They see a risk that the applicant would induce Mr. Hammerer to give such evidence. They consider that further contact with Mr. Hammerer would not necessarily further the applicant's rehabilitation, and conclude that the interference was necessary for the protection of society at large as well as proportionate to the aim pursued.        The applicant considers that there was no reason to restrict his correspondence with Mr. Hammerer.        The Commission finds that this part of the application raises serious issues of fact and law which can only be resolved by an examination of the merits.   It cannot therefore be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.        For these reasons, the Commission by a majority        DECLARES INADMISSIBLE the complaint relating to the proceedings      in the case;        DECLARES ADMISSIBLE the remainder of the application, without      prejudging the merits of the case.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                  (C.L. ROZAKIS)