CEDH · CASELAW;REPORTS;ENG — 17 mai 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 }                      EUROPEAN COMMISSION OF HUMAN RIGHTS                           SECOND CHAMBER                      Application No. 22686/93                            Walter Stürm                               against                             Switzerland                      REPORT OF THE COMMISSION                      (adopted on 17 May 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1 - 15). . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2 - 4). . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5 - 10) . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11 - 15). . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16 - 34) . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16 - 33). . . . . . . . . . . . . . . . . .3             a)    Applicant's correspondence                (paras. 16 - 24) . . . . . . . . . . . . . . .3             b)    Proceedings before the Cantonal Court                of the Canton of Valais                (paras. 25 - 26) . . . . . . . . . . . . . . .4             c)    Proceedings before the Federal Court                (paras. 27 - 33) . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (para. 34). . . . . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 35 - 67) . . . . . . . . . . . . . . . . . . . .6        A.    Complaints declared admissible           (para. 35). . . . . . . . . . . . . . . . . . . . .6        B.    Points at issue           (para. 36). . . . . . . . . . . . . . . . . . . . .6        C.    Article 8 of the Convention           (paras. 37   - 61) . . . . . . . . . . . . . . . . .6             a)    Interference with the applicant's rights                under Article 8 para. 1 of the Convention                (paras. 38 - 39) . . . . . . . . . . . . . . .6             b)    Justification of the interference under                Article 8 para. 2 of the Convention                (paras. 40 - 61) . . . . . . . . . . . . . . .6                          TABLE OF CONTENTS                                                             Page             CONCLUSION           (para. 62). . . . . . . . . . . . . . . . . . . . .9        D.    Article 10 of the Convention           (paras. 63 - 64). . . . . . . . . . . . . . . . . .9             CONCLUSION           (para. 65). . . . . . . . . . . . . . . . . . . . .9        E.    Recapitulation           (paras. 66 - 67). . . . . . . . . . . . . . . . . 10   DISSENTING OPINION OF Mr. G. JÖRUNDSSON JOINED BY MM. J.-C. SOYER and D. SVÁBY. . . . . . . . . . . 11   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 12   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 13   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, a Swiss citizen born in 1942, is currently detained at Brig prison in Switzerland.   He is represented before the Commission by Mr. J. Lob, a lawyer practising in Lausanne.   3.    The application is directed against Switzerland.   The respondent Government are represented by their Deputy Agent, Mr. Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice.   4.    The case concerns the applicant's complaints under Articles 8 and 10 of the Convention that the Swiss authorities did not forward a letter which he had written while remanded in custody.   B.    The proceedings   5.    The application was introduced on 24 August 1993 and registered on 28 September 1993.   6.    On 7 April 1994 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 17 June 1994. The applicant replied on 12 July 1994.   8.    On 30 November 1994 the Commission (Second Chamber) declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 22 December 1994 and they were invited to submit further observations on the merits of the case.   No observations were submitted.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mr.   H. DANELIUS, President           Mrs. G.H. THUNE           MM.   G. JÖRUNDSSON                S. TRECHSEL                J.-C. SOYER                H.G. SCHERMERS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY   12.   The text of this Report was adopted on 17 May 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   15.   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.    The particular circumstances of the case        a)    Applicant's correspondence   16.   Criminal proceedings are pending against the applicant on account of alleged theft and robbery.   Since 1990 he has been detained on remand in various prisons in Switzerland.   17.   In 1992 the applicant went on a hunger strike whereupon he was temporarily detained in a security cell at a Geneva hospital.   A radio reporter of Radio DRS, the national radio station for German and Romansch Switzerland (Radio der deutschen und der rätoromanischen Schweiz), sent a letter to him with twelve questions and a cassette for a tape-recorder.   The reporter explained that he had been refused permission to interview the applicant personally for which reason he requested him to reply to the questions on tape; the answers would be used for a radio interview.   18.   On 29 July 1992 P., the investigating judge of the Ering/Gundis Districts at Sion/Sitten in the Canton of Valais, decided to withhold the cassette, while forwarding the letter and the questions.   19.   The applicant replied to the questions in a letter to the radio reporter which the investigating judge passed on.   The applicant further filed a complaint with the Cantonal Court (Kantonsgericht) of the Canton of Valais that he had not received the cassette.   20.   On 24 July 1992 the applicant sent a further letter to the editor of the Zurich weekly newspaper W. in which he stated, with reference to the investigating judge, that "if the nilper (sic) in Sitten considers that with these mean tricks he can get me to give in, he is out of his mind, but that he is in any case" ("wenn der Nilper <sic> in Sitten denkt, er könne mich durch derartige Schikanen klein kriegen, dann ist der falsch gewickelt, aber das ist er ja auf jeden Fall"). The letter also stated inter alia that P. had "pinched" ("geklaut") the annex of another letter.   21.   On 31 July 1992 the investigating judge informed the applicant that he would not forward the letter of 24 July 1992 on account of the indecent and defamatory statements therein.   The applicant appealed against this decision to the Cantonal Court of the Canton of Valais.   22.   On 27 July 1992 the applicant wrote to Ms. S. of Amnesty International, complaining inter alia of the conditions of detention on remand.   The letter stated inter alia that "for me, persons like the investigating judge P. are therefore nothing else than desk murderers who only differ from an Adolf Eichmann in the number of their victims" ("Für mich sind deshalb Leute wie der Untersuchungsrichter P. nichts anderes als Schreibtischmörder, die sich von einem Adolf Eichmann nur durch die Anzahl der Opfer unterscheiden.").   23.   The letter to Ms. S. continued that "my stay in this torture hole only lasted a few weeks which nevertheless sufficed to understand that the pig was not <the co-accused> M. who wrongly incriminated me" ("dauerte mein Aufenthalt in diesem Folterloch nur einige Wochen, die aber genügten, um zu begreifen, dass das Schwein nicht der mich fälschlicherweise belastende M. war").   The applicant further wrote that he had complained about the decision of the investigating judge who, rather than forwarding a letter of the applicant, had put it in the waste paper basket.   24.   On 31 July 1992 the investigating judge withheld the letter of 27 July 1992 as it contained indecent and defamatory remarks.        b)    Proceedings before the Cantonal Court of the Canton of           Valais   25.   On 2 October 1992 the Cantonal Court of the Canton of Valais dismissed the applicant's appeals against the various decisions of the investigating judge.   The Court fined him 80 SFr for filing an abusive appeal and ordered him to pay costs of the proceedings and the decision amounting to 74.60 SFr.   26.   The Cantonal Court found inter alia that the investigating judge had correctly withheld the radio cassette in order to maintain order in prison and not to jeopardise the purpose of detention.   The applicant had always been keen on publicity.   Moreover, there was a danger that the radio station would manipulate the cassette in such a way as to give a one-sided view of the case.        c)    Proceedings before the Federal Court   27.   Against this decision the applicant filed a public law appeal (staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht) dismissed on 24 February 1993.   28.   Insofar as the applicant complained that the Valais authorities had breached his right to correspondence and to freedom of expression the Court found that the decisions of the investigating judge not to forward the letters interfered with his right under Article 8 of the Convention to freedom of correspondence, and the decision to hold back the cassette interfered with his right under Article 10 of the Convention.   29.   The Federal Court noted that there was a sufficient legal basis for the interferences as they were based on Section 73 para. 1 of the Regulations on Prison Establishments of the Canton of Valais (Reglement über die Strafanstalten des Kantons Wallis; see below, para. 34).   30.   Under Article 8 para. 2 of the Convention the Federal Court then distinguished the contents of the various letters.   In respect of the letter to Ms. S. (see above, paras. 22 et seq.) the Court found that the words "desk murderer" and "differ from an Adolf Eichmann in the number of their victims" constituted a grossly defamatory statement (massiv ehrverletzende Äusserung).   The Court considered that if such a letter was not withheld, this would soon become known in the prison, and other prisoners would be induced to write similar letters; tensions would arise between prisoners and prison staff and the order in prison would be jeopardised.   The right to correspondence of a prisoner on remand was limited by the personal honour of the civil servant dealing with the criminal case.   The Court considered that it would have been preferable if the investigating judge had either blackened the words or given the letter back to the applicant to change the statements. However, in such matters the authorities enjoyed a margin of appreciation and the investigating judge had not proceeded in a disproportionate manner.   31.   The Federal Court then dealt with the applicant's letter to the W. newspaper (see above, para. 20).   In the Court's view, it was unclear what the word "nilper" meant, and the letter could not be held back for this reason.   Similarly, if it was stated that the investigating judge had "pinched" his letter, it could be assumed that the applicant was in fact complaining that the letter had disappeared and not that the investigating judge had committed theft.   As a result, this letter contained no grossly defamatory remarks, and in this respect the Federal Court upheld the applicant's public law appeal.   32.   The Court also dealt with the radio reporter's cassette (see above, para. 17).   It noted that the applicant had at that time been in a security cell in hospital and had himself stated that it would have been easier for him to reply orally to the questions.   Moreover, it was not clear why only oral statements and not also letters could lead to a one-sided view of the case, as stated by the Cantonal Court. It could be expected from Radio DRS that it would present its transmissions in an objective manner.   In respect of this cassette the Federal Court granted the applicant's public law appeal.   33.   Finally, the Court quashed the fine and the costs imposed on the applicant by the Cantonal Court.   B.    Relevant domestic law   34.   According to Section 73 para. 1 of the Regulations on Prison Establishments of the Canton of Valais (Reglement über die Strafanstalten des Kantons Wallis), correspondence between a prisoner on remand and the outside world has to be submitted to the control of the investigating judge.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   35.   The Commission has declared admissible the applicant's complaint that the authorities did not forward the letter which he had written to Ms. S. while he was remanded in custody.   B.    Points at issue   36.   Accordingly, the issues to be determined are:   -     whether there has been a violation of Article 8 (Art. 8) of the Convention;     -     whether there has been a violation of Article 10 (Art. 10) of the Convention.   C.    Article 8 (Art. 8) of the Convention   37.   The applicant complains that the authorities did not forward the letter to Ms. S. which he had written while he was remanded in custody. He relies on Article 8 (Art. 8) of the Convention which states, 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."        a)    Interference with the applicant's rights           under Article 8 para. 1 (Art. 8-1) of the Convention   38.   The Commission considers that the Swiss authorities, when refusing to forward the applicant's letter to Ms. S., interfered with his right to respect for his correspondence under Article 8 para. 1 (Art. 8-1) of the Convention.   39.   The Commission must therefore examine whether the interference satisfied the conditions under Article 8 para. 2 (Art. 8-2) of the Convention.        b)    Justification of the interference under           Article 8 para. 2 (Art. 8-2) of the Convention   40.   The first question is whether the interference was "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   41.   The applicant contends that the investigating judge, when deciding on 31 July 1992 not to forward the letter, did not mention any legal basis, for which reason it cannot be said that the legal basis was Section 73 para. 1 of the Regulations on Prison Establishments of the Canton of Valais.   42.   The Government submit that the legal basis for the decision not to forward the letter was Section 73 para. 1 of the Regulations on Prison Establishments of the Canton of Valais.   43.   The Commission observes that the Federal Court, in its decision of 24 February 1993, found that Section 73 para. 1 of the Regulations on Prison Establishments in the Canton of Valais constituted a sufficient legal basis for the interference at issue.   According to this provision, correspondence between a prisoner on remand and the outside world has to be submitted to the investigating judge (see above, para. 34).   The Commission accepts therefore that the interference was "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   44.   The next question to be examined under Article 8 para. 2 (Art. 8- 2) of the Convention is whether the interference had a legitimate aim.   45.   The Government submit that retaining the letter served to prevent the commission of the criminal offence of defamation.   46.   The Commission notes that on 31 July 1992 the investigating judge withheld the applicant's letter to Ms. S. as it contained indecent and defamatory remarks (see above, para. 24).   In its decision of 24 February 1993 the Federal Court found that, if the letter was not withheld, other prisoners might be induced to write similar letters, thereby creating tensions between prisoners and prison staff and jeopardising prison order.   The Court also found that the letter contained defamatory remarks (see above, para. 30).   47.   The Commission accepts therefore that the measure was taken "for the prevention of disorder or crime (and) for the protection of the rights and freedoms of others" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   48.   Finally, the Commission must examine whether the interference was "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   49.   The applicant submits that in the letter at issue he wrote that "for me" P. was "a pig" and "a desk murderer", thus expressing his own opinion.   The applicant also submits that it was unnecessary to retain the letter, as he was held in solitary confinement and had therefore no contact with other prisoners; thus, forwarding the letter could not have endangered prison order.   He also points out that persons working for Amnesty International do not become active in their home country.   50.   The Government recall that the letter was addressed to a person working for Amnesty International, and that the applicant is well-known in Switzerland.   It is further submitted that, had the applicant been permitted to send letters with a defamatory content, other prisoners would do the same and tensions with prison staff would arise.   Finally, there was no general prohibition against forwarding such letters; indeed, in its decision of 24 February 1993, the Federal Court found that only one of three letters written by the applicant should have been withheld.   51.   According to the Convention organs' case-law, in determining whether an interference was "necessary in a democratic society", due allowance must be made for the margin of appreciation that is left to the Contracting States.   However, in order to be "necessary" the interference must correspond to a pressing social need and be proportionate to the legitimate aim pursued (see Eur. Court H.R., Silver and others judgment of 25 March 1983, Series A no. 61, p. 37 et seq., para. 97).   52.   The Convention organs have moreover held that some measure of control over prisoners' correspondence is not in itself incompatible with the Convention, but the resulting interference must not exceed what is required by the legitimate aim pursued (see Eur. Court H.R., Pfeifer and Plankl judgment of 25 February 1992, Series A no. 227, p. 18, para. 46).   53.   The Commission further recalls its case-law in the case of Silver and others where it found that there is a need to protect a prisoner's right to freely express himself in his correspondence.   The latter may involve the expression of his grievances or frustrations in emotional or vehement terms, this often being an essential outlet or "safety valve" in closed community existence.   On the other hand, it may be necessary to support prison staff morale against attacks of a scurrilous nature.   In that case, the Commission considered that a prohibition of material aimed at holding the prison authorities up to contempt which took no account of the addressee or the likely effect on the material in question, constituted an overbroad restriction contrary to Article 8 para. 2 (Art. 8-2) of the Convention (see Silver and others v. United Kingdom, Comm. Report 11.10.80, paras. 356 et seq., Eur. Court H.R., Series B no. 51, p. 87).   54.   In the present case the Commission notes at the outset that, other than in the Silver and others case, there was no general law in the Canton of Valais prohibiting the forwarding of all letters which held the authorities up to contempt.   Indeed, in its decision of 24 February 1993, the Federal Court distinguished between mail concerning the applicant which should be forwarded and other mail which was to be withheld.   55.   Turning to the content of the letter withheld, the Commission notes that the applicant stated, inter alia, that "for <him>, persons like the investigating judge P. are therefore nothing else than desk murderers who only differ from an Adolf Eichmann in the number of their victims".   56.   Against this background the Commission has examined the grounds given by the Swiss authorities when withholding the letter.   57.   The Federal Court considered in its decision of 24 February 1993 that if the letter was not withheld it would become known to other prison inmates.   The latter might then be induced to write similar letters, thereby creating tensions between prisoners and prison staff and jeopardising prison order (see above, para. 30).   58.    In the Commission's opinion, it has not been sufficiently made out that forwarding the applicant's letter would have resulted in prison disorder.   It is true that the applicant is well known in Switzerland and that the letter was addressed to Ms S. of Amnesty International.   It has nevertheless not been shown how the letter, addressed personally to Ms S., should have become public knowledge. Moreover, even if the public learned thereof, it has not been explained how the statements in the letter, directed at the investigating judge, could have served to create tensions between prisoners and prison staff.   59.   The Federal Court further considered that the terms used in the letter amounted to grossly defamatory statements, infringing on the honour of the civil servant dealing with the case (see above, para. 30).   60.   Moreover, the Commission notes that, if the applicant - or any other prison inmate employing such terms - was considered to have committed the criminal offence of defamation, the defamed person could have filed a complaint for the institution of criminal proceedings which might have resulted in a determination of the charge by a court.   61.   In the circumstances of the present case, and taking into account the margin of appreciation which is left to Contracting States in such matters, the Commission does not find that a fair balance was struck between the various interests at stake.   The interference with the applicant's right to respect for his correspondence was not therefore proportionate to the legitimate aim pursued.   As a result, the interference was not justified under Article 8 para. 2 (Art. 8-2) of the Convention.        CONCLUSION   62.   The Commission concludes, by 10 votes to 3, that there has been a violation of Article 8 (Art. 8) of the Convention.   D.    Article 10 (Art. 10) of the Convention   63.   The applicant complains that the interception of his letter written to Ms S. amounted to a violation of Article 10 (Art. 10) of the Convention which ensures freedom of expression.   64.   However, in its examination above of the applicant's allegations under Article 8 (Art. 8) of the Convention, the Commission has already dealt with the element of freedom of expression through correspondence. The Commission considers that no other separate issue arises under Article 10 (Art. 10) of the Convention (see Silver and others v. United Kingdom, Comm. Report 11.10.80, paras. 427 et seq., Eur. Court H.R., Series B no. 51, p. 87).        CONCLUSION   65.   The Commission concludes, unanimously, that no separate issue arises under Article 10 (Art. 10) of the Convention.   D.    Recapitulation   66.   The Commission concludes, by 10 votes to 3, that there has been a violation of Article 8 (Art. 8) of the Convention (see above, para. 62).   67.   The Commission concludes, unanimously, that no separate issue arises under Article 10 (Art. 10) of the Convention (see above, para. 65).   Secretary to the Second Chamber        President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)                                                    (Or. English)               DISSENTING OPINION OF Mr. G. JÖRUNDSSON             JOINED BY MM. J.-C. SOYER and D. SVÁBY        In the present case, contrary to the majority, I have come to the conclusion that there has been no violation of Article 8 of the Convention for the following reasons.        The Federal Court considered in its decision of 24 February 1993 that if the letter was not withheld it would become known to other prison inmates.   The latter might then be induced to write similar letters, thereby creating tensions between prisoners and prison staff and jeopardising prison order.        It should be noted that the applicant is well known in Switzerland and, upon his hunger strike, received media coverage.   As his letter was addressed to a person working for Amnesty International, the authorities could assume that the letter would soon become public knowledge and that, if other prisoners heard about it, tensions would arise in the prison establishment and disrupt the orderly conduct of investigations.   Thus, the Swiss authorities sufficiently took into account the addressee and the likely effect of the letter.        The Federal Court further considered that the terms used in the letter amounted to grossly defamatory statements, infringing on the honour of the civil servant dealing with the case.        In my opinion, preventing the applicant from transmitting the letter to a third person who might make it known to the public, and thus preventing him from committing the offence of defamation, is a further relevant reason for intercepting the letter.        In the circumstances of the present case, and taking into account the margin of appreciation left to Contracting States in such matters, I find that a fair balance was struck between the various interests at stake.   The interference with the applicant's right to respect for his correspondence was therefore proportionate to the legitimate aim pursued.   As a result, the interference was justified under Article 8 para. 2 of the Convention.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item _________________________________________________________________   24 August 1993            Introduction of application   28 September 1993         Registration of application   Examination of admissibility   7 April 1994              Commission's decision (Second Chamber) to                          communicate the case to the respondent                          Government and to invite the parties to                          submit observations on admissibility and                          merits   17 June 1994              Government's observations   12 July 1994              Applicant's observations in reply   30 November 1994          Commission's decision to declare                          application admissible   Examination of the merits   22 December 1994          Decision on admissibility transmitted to                          parties. Invitation to parties to submit                          further observations on the merits   8 April 1995              Commission's consideration of state of                          proceedings   17 May 1995               Commission's deliberations on the merits,                          final vote and adoption of the Report