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. 26667/95                       by Richard O'HARA                       against Ireland          The European Commission of Human Rights sitting in private on 14 April 1998, the following members being present:              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 18 August 1994 by Richard O'HARA against Ireland and registered on 8 March 1995 under file No. 26667/95;          Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 2 September 1996 to communicate the      applicant's complaints under Articles 6, 8 and 13 of the      Convention in relation to interference with his correspondence      and to declare the remainder of the application inadmissible;   -     the Commission's decision of 19 October 1996 to write to the      Government in relation to the Commission's correspondence being      opened after communication of the interference with      correspondence complaint and the Commission's decision of      1 March 1997 decision not to accept the Government's suggestion      of a double envelope system; and   -     the observations of the Government received on 12 November 1996      and those of the applicant received on 22 January 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen and he was born in Belfast, Northern Ireland in 1953. He is serving a sentence of life imprisonment in Arbour Hill Prison, Dublin. The present application is the applicant's second to the Commission, his first application (No. 23156/94) being declared inadmissible in August 1994.   A.    Particular facts of the case        The facts of the case, as submitted by the parties, may be summarised as follows. On 29 March 1982 the applicant was convicted of the murder of a 19 year old girl and was sentenced, pursuant to section 2 of the Criminal Justice Act 1964, to a term of life imprisonment.        Having allegedly suffered injury to his back while using equipment in the prison gym in early October 1991, the applicant issued personal injury proceedings in late 1994 against the prison authorities with the assistance of his solicitors and in the context of these proceedings corresponded with those solicitors. The applicant has also corresponded with the Commission (since in or around October 1993) and with the Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment ("the CPT").        When the applicant complained to the Governor of the prison about interference with his correspondence, he was directed to the Prison Visiting Committee and on 13 September 1994 the applicant lodged a complaint to that committee. On 26 September 1994 the Governor of the prison informed the applicant that the committee had decided that all of the applicant's correspondence (including religious material) would be censored.   (a)   The applicant has submitted letters from the Commission to him in Arbour Hill prison which are stamped "Censor's Office" and dated 30 November 1994, 13 February 1995, 9 March 1995, 13 December 1995, 14 February 1996, 20 and 29 March 1996. The Commission envelopes have "The European Commission of Human Rights" printed on the front and the words "Council of Europe" together with the relevant logo are printed on the back.   (b)   The applicant's letters to the Commission dated 31 August 1994, 5 September 1994, 26 and 29 September 1994, 2 October 1994, 7 November 1994, 30 January 1995, 26 February 1995, 20 January 1996, 7 February 1996, 4 and 19 March 1996, 9, 10 and 24 April 1996 and 20 May 1996 are all stamped "Censor's Office". His letter dated 28 February 1996 to the Commission was sent to the Commission by the Governor of the prison.   (c)   The applicant claims that his letters to the CPT have been opened and read and that certain of those letters have been suppressed. The applicant has submitted a letter dated 22 February 1994 from the CPT to him which letter is also stamped "Censor's Office". The CPT's envelopes also have the words "Council of Europe", the relevant logo and the full title of the CPT (in English) printed on the outside.   (d)   The applicant has also submitted letters from his solicitor dealing with his personal injury claim against the prison which are all stamped "Censor's Office" and dated 11 February 1994, 14 and 22 March 1994, 9 and 21 June 1994 (this last letter contained a medical report prepared for the applicant's personal injuries case against the prison), 13 and 19 September 1994 (this last letter was stamped "Censor's Office" on two different dates). The applicant has also submitted another letter dated 28 February 1996 from another firm of solicitors. The applicant had contacted that latter firm in relation to certain grievances as regards his sentence and the prison authorities. That letter was also stamped "Censor's Office". The envelope in which this letter was contained was marked "Private & Confidential, Legal Correspondence".   (e)   The applicant has also submitted a religious magazine sent from an evangelistic association in the United States in a transparent plastic envelope which magazine was also stamped "Censor's Office" on 24 April 1996. He also submits that a Bible Concise Dictionary, sent by Kingston Bible Trust, was similarly stamped on 5 May 1994.   (f)   Three letters from the AIRE Centre in London (a London-based individual rights advice centre) dated 26 June 1995, 7 July 1995 and 30 November 1995 are also submitted by the applicant. These letters contained advice to the applicant in relation to, inter alia, applications to the Commission and are stamped "Censor's Office".   (g)   The applicant has submitted a letter from the Legal Aid Board in Dublin dated 6 July 1995, from the Probation Board for Northern Ireland dated 5 February 1992 and from the office of the Secretary to the President of Ireland dated 14 February 1996, all of which letters are stamped "Censor's Office". A letter from the British Embassy in Dublin to the applicant dated 29 April 1994 - containing a copy of a letter from that embassy to the Department of Justice (as regards a concession for the applicant in relation to telephone calls from the prison) and a copy of a letter from the Foreign and Commonwealth Office in London dated 4 March 1993 to a Member of Parliament (dealing with questions relating to the applicant's release) - is also submitted by the applicant. That letter and the copy letters enclosed are all stamped "Censor's Office".   (h)   The applicant also submits that, having received a photocopy of a letter sent to him as opposed to the original, his solicitor advised him to request the prison authorities to furnish him with copies of certain letters previously sent to him (by Southern Health Board and the courts). The applicant claims that he made the request and received copies of those letters from the prison authorities.        The applicant alleges certain delays as regards his correspondence. He alleges that an application form to the Commission was delayed for three days by the prison authorities (23- 26 November 1993); that documents were delayed between 3 and 5 August 1994; that a newspaper entitled "Insidetime" (concerning prisoners' rights) does not arrive in his cell as it did before his first application to the Commission; and that a letter to the British Embassy in Dublin, posted by the applicant on 6 July 1994 through the prison authorities, was not received until 11 July 1994.        The applicant also alleges that certain letters and documents were suppressed - a letter to the CPT dated 29 March 1994 and a follow- up letter dated 7 July 1994; a letter to a local radio station; certain documents enclosed in a letter to Mr. Peter Robinson, Member of Parliament (United Kingdom); and a report of the Northern Ireland Association for the Care and Resettlement of Offenders of 30 March 1992.        On 13 December 1995 the applicant completed and had sworn an affidavit before a Commissioner for Oaths in relation to a proposed action relating to the Sentence Review Group and his applications for release. As a result of the filing of that affidavit, the applicant was given and completed, on 10 January 1996, a High Court form which was entitled "Statement required to ground application for judicial review by a personal applicant". On 23 February 1996 the applicant appeared before a single judge of the High Court. The judge made a number of suggestions to the applicant including writing to the Sentence Review Group. That judge also said that, if the applicant could prove discrimination, the applicant would be granted an order of mandamus and funds from the Attorney General to pursue the matter. The applicant then wrote to that group and claims that, having had no success, he wrote back to that High Court judge on 28 February 1996.        The applicant claims that his affidavit sworn on 13 December 1995 was not before the Court on 23 February 1996; however, the Court order of the same date refers to the Statement of grounds and verifying affidavit and a letter dated 5 July 1996 from the Registrar of the High Court confirms that that affidavit was before the Court. The applicant also claims that the High Court judge never received his letter of 28 February 1996.   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 recognised "unenumerated rights" is the right to communicate - Attorney General v. Paperlink Limited [1984] ILRM 343 and McKenna v. An Taoiseach, High Court, 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 to affect the lawfulness of 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 person'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.        The Supreme Court in the case of Hutchinson v. the Department of Justice and the Governor of Mountjoy Prison (a judicial review application) was faced with allegations of suppression and censorship of mail in circumstances where no indication had been given by the Governor of what mail had been so suppressed or censored and why. The court pointed out in its judgment of 16 October 1992 that a prisoner serving a sentence must not be incommunicado and had a general right, subject to prison discipline, to communicate with persons outside the prison. It followed that the prisoner was entitled, at least, to information about what letters had been withheld and why. Accordingly, the plaintiff was accorded liberty to apply for an order of mandamus directing the Governor to inform the plaintiff of the non-transmission or censoring of any letter and to supply short reasons for the same.        The Supreme Court in the case of Holland v. the Minister for Justice and Others also considered a judicial review application for an order of mandamus based on allegations that a letter written in February 1993 by the plaintiff on behalf of a fellow prisoner had been returned to him by the prison authorities. The court, in its judgment of 9 July 1993, referred to both the above-cited Kearney judgment of the High Court and its own judgment (cited above) in the Hutchinson case and went on to point out that the justification for Rule 63 of the 1947 Rules was to ensure that nothing was done to undermine the security or good discipline of the prison through correspondence. However, the plaintiff was given leave to apply to the High Court for an order of mandamus requesting reasons for the failure to transmit the letter. That application was subsequently rejected by the High Court on 28 January 1994 and, on appeal, by the Supreme Court on 13 May 1994 because the relevant letter had, by then, been transmitted by the prison authorities. No further point was taken as regards the delay in transmission of that letter by either court.     COMPLAINTS        The applicant complains about interferences with his correspondence and invokes Articles 6, 8 and 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 August 1994 and was registered on 8 March 1995.        On 2 September 1996 the Commission decided to communicate the application and request the parties' observations on the admissibility and merits of the applicant's complaints under Articles 6, 8 and 13 relating to interference with his correspondence and to declare the remainder of his application inadmissible.        The Government's observations were received on 12 November 1996 and those of the applicant in reply were received on 22 January 1997.     THE LAW        The applicant complains about interference with his correspondence. He submits that all his correspondence (including with the Commission, the CPT and his solicitors) is systematically opened and read by the prison authorities and that certain correspondence is copied on to his prison file, suppressed and delayed. The applicant submits that this constitutes a denial of his right of access to court under Article 6 para. 1 (Art. 6-1) of the Convention and a denial of his right to respect for private life and correspondence guaranteed by Article 8 of the Convention and he complains, under Article 13 of the Convention, that he has no effective remedy in these respects.        The relevant parts of these Articles read as follows:                        Article 6 para. 1 (Art. 6-1):        "In the determination of his civil rights and obligations or of      any criminal charge against him, everyone is entitled to a fair      and public hearing within a reasonable time by an independent and      impartial tribunal established by law. ..."                             Article 8 (Art. 8):        "1. Everyone has the right to respect for his private and family      life, ... and 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, ... or for the protection of the      rights and freedoms of others."                            Article 13 (Art. 13):        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority ..."        The Government submit with their observations copies of correspondence to and from the applicant which are held on his prison file. The correspondence dates from 1985 to 1996 and includes substantial copy correspondence in relation to legal proceedings as regards the applicant's marriage and children, correspondence from the Commission (including a decision of the Commission in the applicant's previous application and the Commission's letter communicating the present complaints of the applicant) together with correspondence with his lawyer and the domestic courts. A copy of the Governor's journal is also submitted. It contains over 1500 entries recording the date and address of correspondence from the applicant between 1993 and 1996.        The Government, at the outset, outline the wider security context and background to this complaint. They refer to the applicant's conviction for murder and sentence. They point out that there are 22 convicted murderers and 45 convicted rapists in the prison where the applicant is serving his sentence and argue that it is therefore particularly important to ensure security in the prison. There are three serious security problems in Irish prisons - drug abuse, correspondence by convicted sexual offenders to their victims and escape attempts (there having being two such attempts at Arbour Hill in the recent past). Lifting such restrictions on correspondence would inevitably lead to abuse.        The Government primarily submit that the applicant has not exhausted domestic remedies in that he has not taken proceedings to challenge the constitutionality of Rule 63 of the 1947 Rules. The decision of the High Court in the Kearney case (loc. cit.) was not appealed to the Supreme Court and that court has not yet considered the constitutionality of Rule 63. In any event, the Kearney case can be distinguished by reason of the wide-ranging allegations of the present applicant relating to suppression and seizure of mail.        As regards Article 6 (Art. 6), in particular, the Government submit that the right of access to court is not an absolute right (Eur. Court HR, Golder v. the United Kingdom judgment, loc. cit. and Ashingdane v. the United Kingdom judgment 28 May 1985, Series A no. 93, p. 24, para. 57). They deny that any of the applicant's correspondence was suppressed, seized or delayed or that any court application of the applicant was impeded by the prison authorities. His relationship with his solicitors was not impaired in its very essence. In such circumstances, supervisory control pursuant to Rule 63 of the 1947 Rules constitutes a minimal and justifiable restriction on the applicant's access to court.        As regards Article 8 (Art. 8) of the Convention, the Government accept that the prison rules relating to correspondence constitute an interference with the applicant's right to respect for his correspondence. However, the interference is in accordance with the law and its aims are legitimate (namely, maintaining security and avoiding criminal activity inside and outside the prison).        Furthermore, the Government submit that the interference is proportionate to those legitimate aims bearing in mind the margin of appreciation as regards interference with correspondence in prisons (Eur. Court HR, Silver and Others v. the United Kingdom judgment, loc. cit., p. 38, para. 98). There is no reasonable means of detecting contraband other than opening letters and the opening of this correspondence has in no sense prevented the applicant from effectively communicating. The interference in this case consists of opening of all correspondence and stamping it; only when material is considered to be a danger to prison security or to the rights of others is correspondence ever actually referred to the prison governor. Only a small portion of the correspondence will ever be read given the volume of correspondence in and out of the prison.        The Government also invoke Article 18 (Art. 18) of the Convention pointing to the negative consequences of reducing control on correspondence. Prisoners' access to legal advice and to court remains intact - the present applicant instituted judicial review proceedings and a personal injury action and if there was some impairment of the solicitor/client relationship it arose out of the fact of imprisonment itself. Further, the Government is not satisfied that a completely unregulated channel to and from the Commission would not be abused and they point out that the Government are better placed than the Commission to assess the risks in Irish prisons in that respect. As to the copying of correspondence on to the prisoner's file, the Government submit that this is "primarily for the purpose of ensuring that the prison authorities are in a position to deal with complaints by the applicant that his mail has not been dispatched from the prison".        Finally, and as regards Article 13 (Art. 13), the Government submit that, since there is no arguable claim of a violation of the Convention, the Article 13 (Art. 13) complaint is manifestly ill- founded.        The applicant disputes that a constitutional remedy would be effective. The decision of the High Court in the above-cited Kearney case is clear; it is settled legal opinion that this decision represents the law in Ireland; and the reference to the provisions of Rule 63 by the Supreme Court in the above-described Hutchinson and Holland cases (judgments dated 19.10.92 and 9.7.93, respectively) and relevant extracts from two leading constitutional law text-books are indicative of this settled legal opinion.        As to Article 6 para. 1 (Art. 6-1), the applicant submits that the Government's submissions ignore the very clear jurisprudence of the Commission and Court regarding interference with and censorship of legal correspondence (Eur. Court HR, S v. Switzerland judgment of 28 November 1991, Series A no. 220). The grounds offered by the Government do not provide sufficient justification for a violation of the nature at issue here. In particular, none of the reasons offered justify interference with correspondence between a prisoner and his/her lawyer (Eur. Court HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233), no reasonable grounds having been advanced by the Government to open the correspondence of the applicant referred to above at (d) and (f) in the FACTS.         The applicant notes that the correspondence at (a), (b) and (c) above is correspondence with the Commission and the CPT and that no justification has been offered by the Government for this interference apart from the generalised submissions outlined above and the possibility of forgery of envelopes. This latter submission was made by the United Kingdom Government and was rejected by the Court in the above-cited Campbell case. As to the correspondence at (e) above, the applicant submits that the factors advanced by the Government do not justify the opening of a religious magazine in a transparent envelope.        The Commission 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.        Insofar as the applicant alleges interferences with his correspondence which were not authorised by Rule 63, the Commission observes that judicial review proceedings were open to him to challenge such interferences and, insofar as reasons were not given for stopping or censoring correspondence, to obtain such reasons (see, Hutchinson v. the Department of Justice and the Governor of Mountjoy Prison, loc. cit.). No such proceedings have been instituted by the applicant.        Insofar as the applicant challenges acts done in conformity with Rule 63 of the 1947 Rules, 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 applicant 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.        As to the applicant's submission that such a constitutional remedy was and would be ineffective in light of the judgment of the High Court in the Kearney case, the Commission observes as follows.        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. Furthermore, the Hutchinson and Holland judgments of the Supreme Court to which the applicant refers were proceedings for judicial review. Accordingly, any observations of the Supreme Court on the constitutionality of Rule 63 of the 1947 Rules in such judicial review cases would have been obiter dicta and would not, therefore, be binding on any subsequent Supreme Court before which the constitutionality of Rule 63 was raised in properly constituted declaratory proceedings.        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, loc. cit.) 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 on to 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. 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 mainly legal correspondence. 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.        The applicant further argues that any such constitutional remedy would be ineffective in view of the authorities' access to all his legal correspondence. 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 involve submissions of a mainly legal character, the Commission does not consider that the fact that the authorities have access to his legal correspondence would render a constitutional action ineffective. Insofar as the applicant argues that judicial review proceedings would be ineffective for the same reason, the Commission notes the successful judicial review proceedings of Mr. Holland outlined above (judgment of the Supreme Court of 9 July 1993) in a case where the authorities similarly had access to Mr. Holland's legal correspondence (No. 24827/94, Dec. 14.4.98), not yet published). Insofar as the applicant complains under Article 6 (Art. 6) of the Convention that the disclosure to the prison authorities of the contents of his legal correspondence has resulted in the denial of effective access to court as regards his personal injury action, the Commission finds that the applicant has not shown that a successful constitutional challenge to Rule 63 would have been ineffective to protect him from any prejudice resulting from the interference with such correspondence.        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.        Accordingly, the Commission finds the applicant's complaints under Articles 6, 8 and 13 (Art. 6, 8, 13) of the Convention as regards interference with his correspondence inadmissible pursuant to Article 27 para. 3 of the Convention on grounds of non-exhaustion of domestic remedies as required by Article 26 (Art. 26) 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