CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 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. 37043/97                       by Vitali SLAVGORODSKI                       against Estonia          The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1998, the following members being present:                MM    M.P. PELLONPÄÄ, President                 N. BRATZA,                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS            Mrs   J. LIDDY            MM    L. LOUCAIDES                 B. MARXER                 B. CONFORTI                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL                 M. VILA AMIGÓ            Mrs   M. HION            Mr    R. NICOLINI              Mrs   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 23 July 1996 by Vitali SLAVGORODSKI against Estonia and registered on 25 July 1997 under file No. 37043/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Estonian citizen, born in 1940 in Ukraine, and currently serving a prison sentence in Murru prison in Estonia.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        The applicant was convicted of murder by judgment of the Tallinn City Court ("Tallinna Linnakohus") on 15 November 1994, which was confirmed by the Tallinn Court of Appeal ("Tallinna Ringkonnakohus") on 5 January 1995. Leave to appeal to the Supreme Court ("Riigikohus") was refused on 8 March 1995. The applicant subsequently made an attempt to reopen the proceedings, but his application was turned down by the Supreme Court on 19 April 1995. He then submitted a request for pardon to the President of the Republic who refused it on 16 October 1995.        Following his conviction, the applicant is detained in Murru prison. He claims that all his incoming and outgoing mail is opened by the prison administration and that letters are often delivered to him with delay. More specifically, he states that a letter from the Commission dated 25 July 1997, which arrived in the prison on 11 August 1997, was given to him open on 14 August 1997 with a request to sign a statement that he had been informed of its content. The letter, which the applicant has returned to the Commission, bears Murru prison's stamp together with a reference number and the date of 11 August 1997.   B.    Relevant domestic law        Paragraph 43 of the Estonian Constitution provides:   [Translation]        "Everyone has the right to secrecy of messages transmitted by      him/her or to him/her by post, telegram, telephone or other      generally used means. Exceptions may be made on authorization by      a court, in cases and in accordance with the procedure prescribed      by law in order to prevent a criminal act or for the purpose of      establishing facts in a criminal investigation."   [Estonian]        "Igaühel on õigus tema poolt või temale posti, telegraafi,      telefoni või muul üldkasutaval teel edastavate sõnumite      saladusele. Erandeid võib kohtu loal teha kuriteo tõkestamiseks      või kriminaalmenetluses tõe väljaselgitamiseks seadusega      sätestatud juhtudel ja korras."        The treatment of prisoners is governed, inter alia, by the Code on procedure for the execution of judgments ("Täitemenetluse seadustik"), adopted on 21 June 1993.   Its paragraph 122 provides:   [Translation]        "The inmate has a right, under the administration's supervision,      to send and receive an unlimited number of letters..."       [Estonian]        "Kinnipeetaval on õigus administratsiooni järelvalve all saata      ja saada piiramatul arvul kirju..."        The Code's provisions are supplemented by the Prison's Internal Regulations ("Vanglaasutuse sisekorraeeskirjad"), approved by the decree of the Minister of Justice of 2 February 1994, as amended on 30 April 1996. The relevant part of the Regulations provides as follows:   [Translation]        "Letters are sent only through the prison's administration and      are subject to censorship. Letters are dropped in a mailbox or      forwarded to the representative of the administration open."      (Point 96)        "Only letters addressed to the court, the prosecutor, the defence      lawyer and the Department of Prisons are forwarded unexamined;      they can be handed to the administration in a sealed envelope and      will be forwarded to the addressee the same or at the latest the      next work day." (Point 101)        "The inmate can submit requests orally or in writing. Written      requests are forwarded by the prison administration to the      addressee..." (Point 105)        "Written requests are registered by the prison's office and   are      sent to the addressee within three days." (Point 112)        "Replies regarding the outcome of the examination of the request      are made known to the inmate within three days of their arrival;      the inmates sign for their receipt and the replies are added to      the inmate's personal file."(Point 113)   [Estonian]        "Kirju saadetakse ainult vanglaasutuse administratsiooni kaudu      tsensuuri läbides. Kirjad lastakse postkasti või antakse      administratsiooni kätte avatult." (Punkt 96)        "Kontrollimata edastatakse kohtule, prokurörile, kaitsjale ja      Vanglate Ametile adresseeritud kirjad, mida võib      administratsioonile anda suletud ümbrikus ning mis edastatakse      adressaadile samal või hiljemalt järgmisel tööpäeval."      (Punkt 101)        "Kinnipeetav võib esitada avaldusi suuliselt või kirjalikult.      Kirjalikud avaldused saadab vanglaasutuse administratsioon      adressadile..." (Punkt 105)        "Kirjalikud avaldused registreeritakse vanglaasutuse kantseleis      ja saadetakse kolme päeva jooksul adressadile." (Punkt 112)        "Vastused avalduste lahendamise tulemuste kohta tehakse      kinnipeetavale teatavaks allkirja vastu kolme päeva jooksul      vastuse saabumisest ning lisatakse kinnipeetava isikutoimikusse."      (Punkt 113)     COMPLAINTS   1.    The applicant complains about interference by the prison administration with his correspondence with the Commission. He states that letters from the Commission are forwarded to him open and with delay. The applicant invokes Article 25 of the Convention.   2.    The applicant also complains about interference by the prison authorities with all his correspondence. He submits that his personal mail is regularly opened and that letters are often delivered to him by the prison staff with delay.   3.    The applicant further alleges a violation of his rights under Article 6 of the Convention in the criminal proceedings. He considers that he was not tried by an independent and impartial court and submits that he was deprived of the possibility of choosing a lawyer, acquainting himself with the case-file and questioning witnesses.     THE LAW   1.    The applicant complains about interference with his correspondence with the Commission under Article 25 para. 1 (Art. 25-1) of the Convention, which in fine provides:        "Those of the High Contracting Parties who have made such a      declaration undertake not to hinder in any way the effective      exercise of this right."        The Commission considers that this complaint also raises issues under Article 8 (Art. 8) of the Convention which reads as follows:        "1. Everyone has the right to respect for his private and family      life, his home 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 in the interest   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."        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint. The Commission finds that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of this complaint to the respondent Government.   2.    The applicant complains about interference by the prison administration with all his correspondence. He refers to the regular opening of his mail by the prison staff and to delays in forwarding letters to him.        The Commission considers that this complaint raises issues under Article 8 (Art. 8) of the Convention.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint. The Commission finds that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of this complaint to the respondent Government.   3.    The applicant complains about the unfairness of the criminal proceedings under Article 6 (Art. 6) of the Convention. In particular, he complains that he was not tried by an independent and impartial court and that he was deprived of the possibility of choosing a lawyer, acquainting himself with the case-file and questioning witnesses.        The Commission considers that it is not required to decide whether or not the applicant's complaints under Article 6 (Art. 6) of the Convention disclose any appearance of a violation of the Convention.        The Commission observes that the facts complained of relate to a period prior to 16 April 1996, which is the date of the entry into force of the Convention with respect to Estonia. It follows that this part of the application is outside the competence ratione temporis of the Commission and is incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).        For these reasons, the Commission,        DECIDES TO ADJOURN the examination of the applicant's      complaints about the interference with his correspondence;        unanimously,        DECLARES INADMISSIBLE the remainder of the application.        M.F. BUQUICCHIO                            M.P. PELLONPÄÄ         Secretary                                 President    to the First Chamber                      of the First Chamber