CEDH · CASELAW;REPORTS;ENG — 18 octobre 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                            FIRST CHAMBER                      Application No. 22048/93                                M. S.                               against                               Austria                      REPORT OF THE COMMISSION                    (adopted on 18 October 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. 16-22) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-20). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 21-22). . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 23-42) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaint declared admissible           (para. 23). . . . . . . . . . . . . . . . . . . . .5        B.    Points at issue           (para. 24). . . . . . . . . . . . . . . . . . . . .5        C.    As regards Article 8 of the Convention           (paras. 25-36). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 37). . . . . . . . . . . . . . . . . . . . .6        D.    As regards Article 10 of the Convention           (paras. 38-39)   . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 40)   . . . . . . . . . . . . . . . . . . . .7        E.    Recapitulation           (paras. 41-42). . . . . . . . . . . . . . . . . . .7   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .8   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 is an Austrian citizen born in 1938.   He is detained at Garsten prison, where he is serving several prison sentences.   He was represented before the Commission by Mr. J. Lindlbauer, lawyer, of Enns.   3.    The application is directed against Austria.   The respondent Government were represented by their agent, Ambassador F. Cede, head of the International Law Department of the Federal Ministry for Foreign Affairs, Vienna.   4.    The case as declared admissible concerns interference with the applicant's prison correspondence.   The applicant invokes Articles 8 and 10 of the Convention.   B.    The proceedings   5.    The application was introduced on 31 January 1993 and registered on 1 June 1993.   6.    On 2 March 1994 the Commission (First 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 the admissibility and merits of the complaint made under Article 8 of the Convention.   7.    The Government's observations were submitted on 17 June 1994 after an extension of the time-limit fixed for this purpose.   The applicant replied on 17 July 1994.   On 6 September 1994, the Commission granted the applicant legal aid for the representation of his case.   8.    On 11 January 1995 the Commission declared admissible the applicant's complaint concerning interference with his correspondence. It declared inadmissible the remainder of the application.   9.    The text of the Commission's decision on admissibility was sent to the parties on 26 January 1995 and they were invited to submit such further information or observations on the merits as they wished.   No such 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 (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   C.L. ROZAKIS, President                E. BUSUTTIL                A.S. GÖZÜBÜYÜK                A. WEITZEL                M.P. PELLONPÄÄ                B. MARXER                G.B. REFFI                B. CONFORTI                I. BÉKÉS                E. KONSTANTINOV                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL   12.   The text of this Report was adopted on 18 October 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.   The Commission's decision on the admissibility of the application is annexed hereto.   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   16.   The applicant requested permission to correspond with a former prisoner, a Mr. H., pursuant to Section 86 of the Execution of Sentences Act (Strafvollzuggesetz) for such correspondence.   The prison Governor refused 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).   17.   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 (Bundesverfassungsgesetz).   18.   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. H., the fact that security and order were not at risk was irrelevant.   19.   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. H.   The Administrative Court also refused the applicant's request for a hearing.   20.   Section 86 of the Execution of Sentences Act has since been amended.   B.    Relevant domestic law   21.   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".   22.   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 ..."   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   23.   The Commission has declared admissible the applicant's complaint that the refusal of permission to correspond with a former prisoner was not justified.   B.    Points at issue   24.   The issues to be determined are   -     whether there has been a violation of Article 8 (Art. 8) of the      Convention, and   _     whether there has been a violation of Article 10 (Art. 10) of the      Convention.   C.    As regards Article 8 (Art. 8) of the Convention   25.   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 ... for the      prevention of disorder or crime ...".   26.   The applicant considers that there was no reason to restrict his correspondence with Mr. H.   27.   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. H. to give such evidence.   They consider that further contact with Mr. H. 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.   28.   The Commission finds that the refusal of permission for the applicant to correspond with Mr. H. was an interference with his right to respect for his correspondence, and that that interference was in accordance with the law and had as its aim the prevention of disorder or crime.   29.   The Commission must determine whether the interference based on Section 86 (3) of the Execution of Sentences Act was "necessary in a democratic society" within the meaning of Article 8 (Art. 8) of the Convention.   30.   The Commission found that the prior ventilation rule as applied in the United Kingdom at the time was not necessary in a democratic society in the case of Silver (No. 5967/72 and others, Comm. Rep. 11. 10. 80, Eur. Court H.R., Series B no. 51, p. 78-79, paras. 302, 303, 306).   The Commission's findings in that case were, in this respect, not challenged by the United Kingdom Government and were adopted by the European Court of Human Rights (Silver and others judgment of 25 March 1983, Series A no. 61, p. 38, para. 99).   31.   The rules in the present case required a form of prior authorisation.   They assumed that the prisoner had lost his right to correspond with whomever he wished, and that it was for the authorities to grant permission to correspond with individuals if the individual could show that the correspondence would be beneficial and if there were no security reasons militating against correspondence.   32.   The Commission finds that such an approach runs counter to the fundamental principle that a prisoner retains the right to correspond with the outside world save to the extent that restrictions on the right are indeed necessary within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention (see, generally in this connection, Eur. Court H.R., Golder judgment of 7 May 1974, Series A no. 18, pp. 20-22, paras. 41-45).   33.   The way in which the rules were applied in the present case illustrates the effects of the legislation: the Administrative Court accepted that there were no security reasons for preventing the applicant from corresponding with Mr. H., but nevertheless found against the applicant as there was no positive influence to be expected from the proposed correspondence.   34.   In the course of the proceedings before the Commission the Government have given reasons some of which may have been capable of justifying interferences with the applicant's correspondence with Mr. H.   These reasons were not, however, adduced in the domestic proceedings, and the Commission finds that the absence of reasons was, in itself, not compatible with the requirements of Article 8 of the Convention in the present case (see, in the context of Article 10 of the Convention, the requirement for "relevant and sufficient" reasons to be given by the national authorities, Eur. Court H.R., Sunday Times (No. 2) judgment of 26 November 1991, Series A no. 217, p. 29 para. 50(d)).   35.   Finally, the Commission notes that the domestic rules on prisoner's correspondence have now been amended to provide for the right to correspond unless there are specified reasons to the contrary. This change in the rules is to be welcomed, but does not affect the present case as the Administrative Court took its decision on the basis of the earlier rules, and did so before the new rules came into force.   36.   The Commission finds that the interference with the applicant's right to respect for his correspondence was not "necessary in a democratic society".        CONCLUSION   37.   The Commission concludes, by 13 votes to 1, that in the present case there has been a violation of Article 8 of the Convention.   D.    As regards Article 10 of the Convention   38.   The applicant has also complained that the refusal to let him correspond with Mr. H. constitutes a violation of Article 10 of the Convention, which guarantees freedom of expression.   39.   In its examination of the applicant's allegations under Article 8 of the Convention, the Commission has dealt with the element of freedom of expression through correspondence.   The Commission considers that no other separate issues arise under Article 10 of the Convention (see, for example, Schönenberger and Durmaz judgment of 20 June 1988, Series A no. 137, p. 14, para, 31, referring back to Comm. Rep. 12.12.86, p. 23, para. 71).        CONCLUSION   40.   The Commission concludes, unanimously, that no separate issue arises under Article 10 of the Convention.     E.    Recapitulation   41.   The Commission concludes, by 13 votes to 1, that in the present case there has been a violation of Article 8 of the Convention (para. 37).   42.   The Commission concludes, unanimously, that no separate issue arises under Article 10 of the Convention (para. 40).   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                          (C.L. ROZAKIS)