CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 avril 1998

.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. 24827/94                        by Patrick HOLLAND                        against Ireland        The European Commission of Human Rights sitting in private on 14 April 1998, the following members being pres- ent:             MM    S. TRECHSEL, President                J.-C. GEUS                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS           Mrs   G.H. THUNE           MM    F. MARTINEZ                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                M.A. NOWICKI                I. CABRAL BARRETO                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs   M. HION           MM    R. NICOLINI                A. ARABADJIEV             Mr    M. de SALVIA, 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 21 February 1994   by Patrick HOLLAND against Ireland and registered on 5 August 1994 under file No. 24827/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of      Procedure of the Commission;   -     the observations of the parties dated 14 February 1997      and those of the applicant received on 12 December      1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Irish citizen, was born in 1939 and is currently in prison in Portlaoise, Ireland.   A.    Particular facts of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 27 June 1989 the applicant was convicted of possession of explosive substances for an unlawful object and he was sentenced to ten years imprisonment. On appeal the sentence was reduced to seven years imprisonment to run from 28 June 1989. The applicant was released in or around early 1996. He was again arrested in April 1997 on different charges, convicted in late 1997 and is currently serving the consequent prison sentence.   1.    Correspondence        On 10 February 1993 the applicant gave a letter, directed to another prisoner's father and containing a High Court application drafted by the applicant on behalf of that other prisoner, to the prison authorities for posting. That letter was handed back to him on 12 February 1993 bearing the Censor's stamp. The applicant made an application (against the Governor, the Minister for Justice, the Attorney General and Ireland) for leave to seek judicial review concerning that incident and another allegation in relation to a letter from a member of parliament being put into his locker instead of being handed directly to him. The applicant sought an order of mandamus directing the respondents to refrain from interfering with his correspondence. He claimed that that interference was in violation of his constitutional rights and of his rights under Article 8 of the Convention.        On 19 March 1993 the High Court (Lynch J) rejected the applicant's application. That court allowed the applicant to rely on an unsworn affidavit since he had claimed that he could not afford the necessary £10.00 for a Commissioner for Oaths. The judgment confirmed that Rule 63 "is not invalidated by the Constitution applying as it does only to persons lawfully imprisoned" and that the respondents were within their rights in not posting the letter. On 9 July 1993 the Supreme Court gave leave to apply for judicial review for an order directing the Governor of the prison to inform the applicant of the reason for non-transmission of his letter. On 28 January 1994 the High Court heard the applicant but rejected the application on the basis that the applicant's letter had been, by then, transmitted. On 13 May 1994 the Supreme Court rejected the applicant's appeal.        The applicant has submitted a schedule of all outgoing correspondence between 9 February 1993 and 17 July 1994. He has also submitted copy and original outgoing and incoming correspondence which has been stamped by the prison authorities either "Censored" or "Please insert your full name and unit no. on all outgoing mail" which includes correspondence:   - to the Commission dated 21 and 28 February 1994, 4 March 1994, 18 April 1994, 16 and 27 May 1994, 7 July 1994 and 29 August 1994 and from the Commission dated 18 and 29 April 1994, 16 June 1994 and 8 August 1994;   - from the applicant's solicitors (Garrett Sheehan and Co. dated 23 November 1989 and Ferrys dated 14 April 1994);   - to the Council of Europe dated 11 August 1993 in relation to the work of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment;   - from the Australian Law Reform Commission dated 9 November 1993 (referring briefly to, inter alia, the Commission and to the UN Human Rights Committee);   - from Dáil Eireann (the parliament) dated 22 January 1991, 10 January 1992 (attaching a letter from the Minister for Justice), 23 January 1992 (attaching a letter from the Minister for the Environment) and 15 June 1994;   - from the Office of the Minister for the Environment (dated 4 December 1991, 10 and 18 August 1993), from the Office of the Secretary to the President (dated 17 December 1991), from the Minister for Justice (dated 8 October 1993 and 22 June 1994), from the Office of the Minister for Equality and Law Reform (dated 16 and 27 June 1994, the latter enclosing a letter from the Minister for Justice) and from the Minister of State of the Department of the Prime Minister (including a letter dated 31 May 1993, an undated letter attaching a letter from the Minister for Justice dated 2 June 1993, letters dated 3 and 17 August 1993, an undated letter in relation to constituency office arrangements and a letter dated 15 October 1993);   - from the Chief State Solicitor dated 13 April 1994 (which related to certain proceedings as regards the applicant's voting rights) and 8 August 1994 (enclosing certain pleadings in proceedings issued against, inter alia, the Governor of the applicant's prison);   - from the Clerk of the High Court (dated 20 April 1994, stamped "The Wheatfield Prison - 22 April 1994 - received"   and relating to the procedure for lodging a plenary summons in the High Court central office) and from the registrar of the Supreme Court dated 10 August 1994;   - from the legal correspondent of the Guardian newspaper dated 15 June 1993 (giving the applicant the name of a solicitors' firm in England);   - from Dublin Corporation dated 11 October 1993 (in relation to the applicant's registration for voting) and 31 August 1994, the latter of which enclosed a copy of Dublin Corporation's letter to the applicant dated 4 May 1994;   2.    Voting        On 7 November 1990 the election for the President of Ireland took place. The applicant did not vote. On 19 March 1991 the High Court refused the applicant's application for judicial review in relation to his inability to vote from prison stating that there was no statutory right for voting by prisoners and suggesting that the applicant wait until an election is imminent if he wished to pursue the matter. On 28 June 1991 the Supreme Court refused the appeal noting that the applicant had not even applied to register himself to vote in the relevant constituency in accordance with section 5(5) of the Electoral Act 1963. It was also noted that the additional question of permission or authority to vote is clearly within the discretion of the Governor of the prison and there was no suggestion that the applicant had made such a request.        On 25 November 1992 the election for Dáil Eireann and a constitutional referendum (relating to the provision guaranteeing the right to life of the unborn) took place. The applicant did not vote. On 11 October 1993 the applicant was informed by Dublin Corporation that his name would be included in the register of electors at his home address in Dublin.        In or around 1993 the applicant applied for leave to institute judicial review in relation to the refusal of the prison authorities to grant him a postal vote for local elections, the European Parliament elections, Presidential elections, constitutional referenda and elections for Dáil Eireann (the parliament) relying on, inter alia, Articles 16, 12 and 27 of the Constitution, the European Assembly Elections Act 1977 and the local election legislation. On 18 November 1993 the High Court found as follows:        "The applicant seeks an order of Mandamus directing the      Respondent to grant him a postal vote. I am treating the      application as an application for leave to institute judicial      review proceedings to obtain an order of Mandamus. The      applicant admits that there is no statutory provision      permitting postal votes for prisoners. Accordingly I must      refuse the application. If the applicant considers that he can      mount a constitutional challenge to the relevant enactments in      the Electoral Acts, he should do so by plenary proceedings. In      the circumstances judicial review would not be appropriate."        On 28 January 1994 the applicant's appeal was refused by the Supreme Court.        Subsequently, the applicant applied to the High Court for an order directing the Governor to take him to the central office of the High Court to issue a plenary summons to commence proceedings as to the constitutionality of his being prevented from voting. On 5 May 1994 the High Court refused the application as personal filing of the summons was not necessary. On appeal, the Supreme Court noted that the applicant had already been escorted on 11 May 1994 to the central office to file the plenary summons. The court also found, as regards the applicant's claim that he could not personally serve the Chief State Solicitor, that postal service was sufficient in that respect and it dismissed the appeal.        On 20 May 1994 the applicant applied for an injunction to suspend the European Parliament elections due to take place on 9 June 1994 in order to allow him to pursue his constitutional proceedings. This was refused by the High Court on 7 June 1994. The election for the European Parliament took place and the applicant did not vote. On 29 July 1994 the Supreme Court dismissed the applicant's appeal on the basis that that election had, by then, taken place.        The plenary summons issued by the applicant on 11 May 1994 made no reference to a violation of a constitutional right to vote. He referred to various international instruments and his position as a citizen of the European Union. The Chief State Solicitor entered an appearance on 11 July 1994. The applicant did not pursue the proceedings further. On 25 November 1995 a constitutional referendum (relating to divorce) took place and the applicant did not vote.   B.    Relevant domestic law and practice   1.    Prisoners' correspondence        The rules for the government of prisons are contained in the Prison Rules 1947 ("the 1947 Rules") and were enacted by the Minister for Justice by way of Statutory Instrument 320 of 1947. Rule 63 is   entitled "Prisoners' letters" and it reads as follows:        "Every letter to or from a prisoner shall be read by the      Governor, or other responsible officer deputed by the      Governor, and initialled by him; and if the contents are      objectionable, it shall not be forwarded, or the objectionable      part shall be erased, according to discretion. The Governor      shall use his discretion in communicating to or withholding      from a prisoner at any time the contents of any letter      addressed to the prisoner, but shall note in his journal every      case in which he thinks it proper to withhold a letter which,      according to the rules, might be communicated to or written by      a prisoner."        Article 40(3) of the Constitution reads as follows:        "1. The State guarantees in its laws to respect, and, as far      as practicable, by its laws to defend and vindicate the      personal rights of the citizen.        2. The State shall, in particular, by its laws protect as best      it may from unjust attack and, in the case of injustice done,      vindicate the life, person, good name, and property rights of      every citizen."        The domestic courts recognise the existence of further personal rights which are protected by Article 40(3) of the Constitution either as rights ancillary or corollary to those expressly mentioned in Article 40(3)(2) or as latent in the expression "personal rights" in Article 40(3)(1). One of these "unenumerated rights" recognised by the courts is the right to communicate - Attorney General v. Paperlink Limited [1984] ILRM 343 and McKenna v. An Taoiseach, High Court (Costello J) 8 June 1992.        The domestic courts also recognise that an inevitable practical and legal consequence of imprisonment is that a great many of the constitutional personal rights of the prisoner are for the period of imprisonment suspended or placed in abeyance (The State (Richardson) v. the Governor of Mountjoy Prison [1980] ILRM 82). Accordingly (and apart from breaches of constitutional rights of such a nature as would affect the lawfulness of his detention for which a habeas corpus action would be appropriate), the domestic courts recognise the prisoner's right of access to court to complain of an interference with constitutional rights which is not necessary to give effect to the sentence of the court (The State (Fagan) v. Governor of Mountjoy Prison, High Court, 6 March 1978).        The High Court in the Kearney case (Kearney v. the Minister for Justice [1986] IR 116) considered, inter alia, the constitutionality of Rule 63 of the 1947 Rules further to a plenary summons seeking, inter alia, a declaration that Rule 63 of the 1947 Rules was unconstitutional. The plaintiff's principal objection was that his letters to and from his solicitor were read by the Governor or his deputy - he submitted that the power to interfere with his right of communication with his solicitor, relatives and friends could only be interfered with in exceptional circumstances (for example, proven security issues) and in such cases he should be present when letters were opened for inspection.        The High Court held that the constitutional right to communicate could be regulated by law and that prisoners retained only those constitutionally protected rights which did not depend on a prisoner's liberty and which were compatible "with the reasonable requirements of the place in which he is imprisoned". The High Court found that the evidence in the case established that the restriction on the right to communicate which involved reading all letters to and from prisoners (including legal correspondence) could reasonably be justified on the grounds of security and was not therefore unconstitutional. In reaching this conclusion the High Court noted that in the case of legal correspondence addressed to and from the prison, "staff are instructed to read the letter only to the extent necessary to ensure that it relates to the prisoner's legal affairs. Staff are expected to treat as confidential all information obtained as a result of the operation of Rule 63". Moreover, the High Court considered the plaintiff's suggestion that a prisoner should be present every time his correspondence was opened as "unreasonably burdensome".        As regards the Golder and Silver judgments of the European Court of Human Rights to which the High Court was referred "in passing" (Eur. Court HR, Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18 and Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61), the High Court noted that the facts of those cases were very different from those of the Kearney case. The High Court noted, however, that both cases made clear that some interference with prisoners' correspondence was permitted according to the ordinary and reasonable requirements of imprisonment.   Since, however, it was established that certain correspondence had not been passed on to the prisoner, in breach of Rule 63, he was awarded £25 nominal damages against the State in that latter respect. The plaintiff did not pursue an appeal to the Supreme Court.   2.    Prisoners' right to vote        Articles 12(2), 16(1) and 47(3) of the Irish Constitution guarantee to, inter alia, all citizens, who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Eireann, the right to vote in a Presidential election, a general election for members of Dáil Eireann and a constitutional referendum.        Section 5(5) of the Electoral Act 1963 provided that a prisoner was deemed to be resident on the relevant date in the constituency of the prison for the purpose of being registered to vote. This was amended by the Electoral Act 1992 (section 11(5)) and such a prisoner is now deemed to be resident in the place where he would have been resident but for his having been so detained in legal custody. The purpose of the change in the 1992 Act is to allow newly released prisoners or prisoners on temporary release to be ready to vote should an election be called rather than await the next annual review of the voting register before they can vote. The 1992 Act does provide for postal voting for, inter alia, the police, members of the defence forces, certain civil servants and for people with disabilities.   COMPLAINTS        The applicant complains about interferences with his correspondence and he invokes Articles 8 and 10 of the Convention in this respect. He also complains that he was not able to vote while he was in prison and invokes Articles 6, 8, 9, 10, 13, 14 and 17 of the Convention and Article 3 of Protocol No. 1.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 21 February 1994 and was registered on 5 August 1994.        On 25 November 1996 the Commission decided to communicate the applicant's complaints in relation to his correspondence and his voting rights. The Government observations are dated 14 February 1997 and the applicant's observations in response were received on 12 December 1997.   THE LAW   1.    The applicant complains about interferences with his correspondence namely, about the systematic opening, reading and copying onto his prison file of his correspondence together with two specific incidents of delay. In this latter respect, the applicant refers to a letter from an elected representative which arrived at the prison in March 1992 and a letter from him written on behalf of a fellow prisoner concerning legal matters. While the applicant invokes Articles 8 and 10 (Art. 8, 10) of the Convention, the Commission considers that this complaint falls to be considered under Article 8 (Art. 8) of the Convention (Eur. Court HR, Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 41, para. 107). Article 8 (Art. 8), insofar as relevant, reads 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 ..., for the      prevention of disorder or crime, ... or for the protection of      the rights and freedoms of others."        As to the two specific allegations of delay, the Government point out that putting correspondence in a prisoner's locker to which the applicant could have access on request does not constitute an interference. Insofar as the applicant claims that he was not told that there was correspondence in his locker, the prison authorities overlooked that the relevant letter was among copies of voter registration forms which had also arrived for the applicant. In any event, the applicant had access to the locker within two days of the letter being lodged therein. Secondly, and as regards the letter written on behalf of a fellow inmate, the applicant was told that he would have to ask the Governor to send the letter and he never did.        The Government assert, as to the complaint about the operation of Rule 63, that this complaint is inadmissible on grounds of non- exhaustion. They argue that the purpose of the proceedings initially instituted by the applicant was to compel the respondents to give reasons for the non-transmission of a particular letter. It was at all times open to him to bring fresh judicial review proceedings seeking a declaration that he was entitled to correspond without interference with all persons or, alternatively, to commence proceedings by way of plenary summons asserting an infringement of his constitutional rights. The judgment in the Kearney case (loc. cit.) is a High Court judgment which the applicant could challenge before the Supreme Court.      Alternatively, the Government submit that if there has been an interference with the applicant's rights under Article 8 (Art. 8) it is justified in view of the risk that letters are used to pass and receive unauthorised material which could pose a threat to good order and discipline in the prison and facilitate attempts at escape, drug dealing and other criminal activities. However, since 2 August 1996 and 8 November 1996 the prison governors were informed by the Minister for Justice that all prisoners could communicate by letter on a confidential basis with the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and with the European Commission for Human Rights, respectively.        Finally, the Government assert that legal correspondence (including correspondence to and from the Commission prior to 1996) was simply opened, stamped and cursorily examined in order to establish that the letters were what they purported to be - no attempt was made to examine or assess the contents thereof and it was not read, delayed or suppressed by the prison authorities. Further to the Commission's specific request, the Government submitted copies of the applicant's mail which was on his prison file. The copy correspondence is voluminous and comprises, for the most part, the applicant's correspondence with his solicitors, the courts and the Commission.        The applicant re-asserts that the domestic proceedings taken by him were sufficient to exhaust domestic remedies.   While he denies that he was advised by prison personnel that correspondence had been put in a locker and that he was told of the powers of the Governor to which the Government refer as regards the letter written on behalf of a fellow inmate, he does not dispute that he had access to the letter from the member of parliament within 2 days of its arrival at the prison.        The Commission notes that it is not required to decide whether or not the facts alleged by the applicant, in respect of these allegations, disclose any appearance of a violation of the Convention, as under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The Commission recalls that in a legal system which provides constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation (No. 18670/91, Dec. 1.12.93, unpublished). In this respect, it is recalled that a declaratory action before the High Court, with a possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights (No. 15141/89, Dec. 15.2.90, D.R. 64, p. 203, No. 23156/94, Dec. 31.8.94, unpublished and No. 28154/95, Dec. 2.7.97, unpublished).        In the present case, the Commission notes that the sole proceedings instituted by the applicant constituted judicial review proceedings based on two alleged incidents of interference with his correspondence. He has taken no declaratory action by way of Plenary Summons joining the Attorney General claiming that the powers of interception of his correspondence resulting from Rule 63 of the 1947 Rules violated his constitutional right to communicate.        It is true that the High Court in the Kearney case (loc. cit.) found that Rule 63 of the 1947 Rules did not infringe the constitutional right of prisoners to communicate protected by Article 40(3) of the Constitution.        However, in the first place, the Commission notes that the Supreme Court did not pronounce on the issue in that case and, according to the parties' submissions, has not yet pronounced on the constitutionality of the interception of prisoners' correspondence permitted by Rule 63 of the 1947 Rules. It is also noted that the Kearney judgment was handed down more than 12 years ago.        Secondly, while the Irish domestic courts cannot directly apply the judgments of the European Court of Human Rights since the Convention has not been incorporated into domestic law, the Commission notes the reference to certain case-law of that Court in the High Court judgment in the Kearney case. In this respect, the Commission recalls that since that judgment there have been further developments in the jurisprudence under the Convention and refers, in particular, to the Campbell judgment decided six years after the Kearney case (Eur. Court HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233) and specifically to paragraphs 44-54 thereof.        The Court found in the Campbell case (against a background of "routine scrutiny" of that applicant's correspondence) that prison authorities may open a letter from a lawyer to a prisoner only when they have reasonable cause to believe that it contains an illicit enclosure; that even in such circumstances the letter should not be read and suitable guarantees should be provided in this respect such as opening the letter in the presence of a prisoner; and that the reading of legal correspondence of a prisoner will only be justifiable in exceptional circumstances. The Court also found that there was "no compelling reason why such letters from the Commission should be opened". In the present case, Rule 63 of the 1947 Rules provides for the systematic opening and reading of all correspondence including correspondence with the Commission, lawyers and the domestic courts, a substantial amount of which correspondence was copied onto the applicant's prison file.        Thirdly, the contents of the applicant's prison file would appear to demonstrate a significant extension of the practice of the prison authorities in applying Rule 63 in the applicant's case. It is clear, from the voluminous copy correspondence to and from the applicant on his prison file, that the prison authorities' control of his correspondence went as far as the taking and retaining of copies of a significant portion of his correspondence for a purpose not outlined by the Government in its observations. Indeed, the majority of the correspondence so copied constitutes legal correspondence including letters to and from the Commission, his application form to the Commission, correspondence to and from his lawyers and pleadings in the above-described domestic proceedings. The control exercised by the prison authorities is thus substantially more extensive than that examined by the High Court in the Kearney judgment, in which case the High Court noted that the instructions to prison staff were to read legal correspondence only to the extent necessary to ensure that it relates to the prisoner's legal affairs and to treat as confidential all information obtained as a result of the operation of Rule 63.        Moreover, the Commission does not consider that there exist any special circumstances in the present case which would, in accordance with the generally recognised rules of international law, absolve the applicant from the obligation to exhaust a domestic remedy (see, for example, No. 14556/89, Dec. 5.3.91, D.R. 69, p. 261). The present case can be distinguished from the O'Reilly case against Ireland (No. 24196/94, Dec. 22.1.96, D.R. 84-A, p. 72), the O'Reilly case concerning a complaint under Article 5 para. 5 (Art. 5-5) and a choice which Mrs O'Reilly "reasonably" made between different domestic remedies open to her.        The Commission notes that on the basis of Rule 63 and of the copy correspondence on the applicant's file, it is arguable that the contents of the applicant's legal correspondence in respect of any such constitutional action would have been read and copies retained by the prison authorities. However, in view of the purpose of the relevant proceedings (challenging the constitutionality of a statutory instrument) and since the nature of those proceedings would lead to submissions mainly of a legal character, the Commission does not consider that the access by prison staff to his legal correspondence requires that he be absolved from exhausting the constitutional remedy outlined above.        Accordingly, the Commission finds the part of the applicant's complaint which relates to the delay in forwarding to him a letter from a member of parliament inadmissible as manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention. It also finds the remainder of this complaint inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention on the basis of his failure to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention.   2.    The applicant also complains that he could not vote while he was in prison and he invokes Articles 6, 8, 9, 10, 13, 14 and 17 (Art. 6, 8, 9, 10, 13, 14, 17) of the Convention together with Article 3 of Protocol No. 1 (P1-3). The Commission considers that this matter falls to be considered under Article 3 of Protocol No. 1 (P1-3) of the Convention, which Article reads as follows:        "The High Contracting Parties undertake to hold free elections      at reasonable intervals by secret ballot, under conditions      which will ensure the free expression of the opinion of the      people in the choice of the legislature."        The Government point out that the applicant did not complete the constitutional proceedings issued by him and he has not, therefore, exhausted domestic remedies in this respect. In any event, the Government refer to the margin of appreciation afforded to States in this area and to the broad powers of States to determine the conditions under which the right to vote may be exercised. In this context, the Government argue that it is not obliged under the Convention to provide temporary release to prisoners to vote, ballot boxes in the prison or the right to a postal vote. Release of all prisoners to vote would be far too high a security risk and put an unfair burden on the prison system which holds at any one time in the region of 2300 inmates. As a result of the voting system in Ireland and the different areas in which prisoners will be registered to vote, hundreds of ballot boxes would be required in each prison to allow all prisoners to vote.        This leaves postal voting and the Government submit that this is not a right guaranteed by the Constitution or by the Convention. In addition, postal voting requires registration in September/October in order to be a listed postal voter in the revised electors list published annually the following February - persons released in the meantime could not vote as prisoners or by ordinary franchise.        The applicant maintains that he has exhausted domestic remedies referring to the various domestic proceedings issued by him in this respect. In the alternative, he submits that he had no effective remedy to exhaust. As to the merits of his complaint, he argues that since prisoners have not been exempted by statute, the constitutional right to vote accorded to every citizen continues to apply to prisoners. He points out that, despite this, the reason in practice that prisoners do not vote is because the prison authorities do not release them to vote. The applicant considers that there is no good security reason not to allow prisoners to vote referring to either a postal vote possibility or to a ballot box in the prison itself. He points to the importance of the elections which took place during his imprisonment namely, a Presidential election held on 7 November 1990, a general election held on 25 November 1992, a constitutional referendum held on 25 November 1992 (relating to the provision guaranteeing the right to life of the unborn), the European Parliament election held on 9 June 1994 and certain local authority elections.        The Commission does not consider that it is necessary to decide whether the applicant has exhausted all effective domestic remedies or, consequently, whether this complaint has been introduced in time in relation to all of the elections which took place while he was in prison or whether all such elections related to "legislatures" within the meaning of Article 3 of Protocol No. 1 (P1-3), since this complaint is inadmissible for the reasons set out below.        The Commission recalls that the de facto deprivation of the right to vote imposed on a prisoner has been found by the Commission not to affect the expression of the opinion of the people in the choice of legislature (No. 2728/66, Yearbook X, p. 340). It also recalls its constant case-law to the effect that, although Article 3 of Protocol No. 1 (P1-3) implies a recognition of the principle of universal suffrage (including the right to vote in elections for the legislature), this right is neither absolute nor without limitations but subject to such restrictions which are not arbitrary and which do not affect the expression of the opinion of the people in the choice of legislature (No. 6573/74, Dec. 19.12.74, D.R. 1, p. 87 and Nos. 6745/74, 6746/74, Dec. 30.5.75, D.R. 2, p. 110 and No. 11391/85, Dec. 5.7.85, D.R. 43, p. 236).        Accordingly, the Commission has found that the deprivation of the right to vote, pursuant to a conviction by a court for uncitizenlike conduct or because of minimum age requirements of potential candidates, does not affect the expression of opinion of the people and is not arbitrary (Nos. 6573/74, 6745/74 and 6746/74, loc. cit.).        The Commission also recalls the case of an applicant who had been sentenced to eighteen months imprisonment and whose right to vote was, accordingly, suspended by legislation during that sentence and for three years thereafter (No. 9914/82, Dec. 4.7.83, D.R. 33, p. 245). The Commission, in deciding whether such a restriction was arbitrary and whether it restricted the free expression of the opinion of the people, noted that the restriction in question was imposed by law on a specific category of person. The Commission felt bound to conclude that the legislator, in the exercise of its margin of appreciation, may restrict the right to vote in respect of convicted persons. Such restrictions could, in the Commission's opinion, be explained by the notion of dishonour that certain convictions carry with them for a specific period, which may be taken into consideration by legislation in respect of the exercise of political rights. Accordingly, the Commission concluded that the suspension of the exercise of the right to vote was not arbitrary and did not affect the expression of the opinion of the people in the choice of legislature within the meaning of Article 3 of Protocol No. 1 (P1-3).        In the present case, the applicant was convicted of possession of explosive substances and his sentence was (after appeal) fixed at seven years imprisonment to run from 28 June 1989. It appears that he was released in or around early 1996 and that a number of elections took place while he was in prison.   However, the Commission does not consider that the suspension of the right of the applicant to vote while in prison affected the expression of the opinion of the people in the choice of legislature   - the fact that all of the convicted prisoner population cannot vote does not affect the free expression of the opinion of the people in the choice of legislature (Nos. 6573/74, 6745/74 and 6746/74, loc. cit.).        As to whether the domestic position can be considered to be arbitrary, the Commission notes that the applicant was not, in any event, registered to vote until October 1993 pursuant to his application for registration and that he does not complain about any significant delay caused by others in that respect. The Commission further notes that the Government chose in 1992 to allow registration of prisoners to vote in the constituencies where they would be otherwise ordinarily resident (were it not for their detention). The aim was to facilitate the voting process for those prisoners who had, on the date of an election, just completed their sentence or who were on temporary release (for reasons unrelated to voting). It is implicit in that amending legislation, therefore, that prisoners who remained in detention would not vote. In view of the afore-mentioned margin of appreciation and the above-cited jurisprudence of the Convention organs, the Commission does not consider that this choice of the legislature was arbitrary within the meaning of Article 3 of Protocol No. 1 (P1-3).        Accordingly, and even assuming compliance with the requirements of Article 26 (Art. 26) of the Convention and that the complaint falls within the scope of Article 3 of Protocol No. 1 (P1-3), the Commission considers that this complaint of the applicant is, in any event, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE                     M. DE SALVIA                           S. TRECHSEL          Secretary                              President      to the Commission                      of the Commission