CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 15 octobre 2002

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Pellonpää ,   Mr   A. Pastor Ridruejo ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 26 August 1999, Having deliberated, decides as follows:               THE FACTS The applicant, Pauli Lella, is a Finnish national, born in 1944 and living in Kehro.   A.     The circumstances of the case   The facts of the case, as submitted by the applicant, may be summarised as follows. At the relevant time the applicant had been politically active for over twenty years, as a member of the Urjala Municipal Assembly and as candidate for Parliament on two occasions. In 1996 he was convicted of aggravated debtor’s dishonesty and a book-keeping offence and sentenced to one year and six months’ imprisonment. The judgment was upheld by a court of appeal and the Supreme Court ( korkein oikeus, högsta domstolen ) refused leave to appeal in September 1998. A subsequent request for the case to be re-opened was likewise refused. On 29 September 1998 the Department for Prison Administration of the Ministry of Justice refused the applicant’s request that the enforcement of his sentence be postponed due to his illness. On 19 October 1998 the Urjala Municipal Assembly voted to disqualify the applicant from sitting on the assembly on account of his having been sentenced to over six months’ imprisonment. His appeal was refused by the County Administrative Court ( lääninoikeus, länsrätten ) of Häme on 11   May   1999. His further appeal to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) was apparently likewise refused. Meanwhile, on 29 October 1998, the Chief Enforcement Officer ( kihlakunnanvouti, häradsfogden ) of Valkeakoski granted the applicant’s further postponement request in order to enable him to organise certain private matters prior to serving his sentence. He was ordered to start serving his prison term on 4 January 1999. In November 1998 the applicant requested that the enforcement of his sentence be postponed until 1 April 1999 so as to allow for his effective participation in the parliamentary elections on 21 March 1999 in which he intended to present himself as a candidate. On 30 November 1998 this request was dismissed, the Chief Enforcement Officer having concluded that the already fixed enforcement would not engender any exceptional and significant losses or difficulties to the applicant, his family, his employer or to society within the meaning of the chapter 2, section 1 (c) of the Act on the Enforcement of Sentences ( laki rangaistusten täytäntöönpanosta, lag om verkställighet av straff ). Moreover, the considerations militating in favour of the immediate enforcement of his sentence clearly outweighed the inconvenience which such enforcement would cause. Under chapter 2, section 1 (d) of the said Act the decision was automatically referred to the Department for Prison Administration which upheld it on 10 December 1998. Having started to serve his sentence on 4 January 1999, the applicant, on 11 February 1999, filed an extraordinary appeal to the Supreme Administrative Court, seeking to have the refusal quashed as it had been based on a manifestly incorrect application of the law. He also sought to have the enforcement of his sentence stayed at least until the court had decided the matter. On 12 March 1999 the court refused to re-open the case. Meanwhile, on 4 February 1999 the applicant registered as candidate in the upcoming elections. His three requests for leave immediately prior to and on the election day, in order to enable him to complete his campaign, were all refused by the Prison Governor. The refusals were automatically referred to the Department for Prison Administration which upheld them. The applicant was not elected. The sentences imposed on four other defendants convicted in the same criminal proceedings were allegedly not enforced until 1 October 1999.   B.     Relevant domestic law   Parliamentary elections are normally held every four years in Finland. Under the Parliament Act ( valtiopäiväjärjestys, riksdagsordning ), as in force at the relevant time, anyone entitled to vote in parliamentary elections is likewise entitled to stand as a candidate, unless placed under guardianship (section 7). COMPLAINTS The applicant complains that the repeated and discriminatory obstruction of his political activities and his freedom of expression prior to elections in which he had stood as a candidate culminated in the refusal to postpone the enforcement of his prison sentence over the parliamentary elections in March 1999 as well as in the refusal of prison leave on and around the election day, although domestic law provided for the possibility of granting up to six days’ leave. As the applicant had been found guilty of white-collar crime and was not a recidivist or considered dangerous, there was no urgent need to enforce his sentence. By contrast, the sentences of the four co-convicts were suspended until October 1999, although they were not even candidates in the elections. The applicant invokes Articles 10, 11, 13 and 14 of the Convention. THE LAW The applicant essentially complains that the refusal to postpone the enforcement of his prison sentence over the parliamentary elections in March 1999 and the refusal of prison leave on and around the election day discriminated against him in the exercise of his freedom of political expression. He invokes Articles 10, 11, 13 and 14 of the Convention. The Court finds that the case falls to be considered primarily under Article 3 of Protocol No. 1 to the Convention which 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.” Implicit in Article 3 of Protocol No. 1, which provides for “free” elections at “reasonable intervals” “by secret ballot” and “under conditions which will ensure the free expression of the opinion of the people”, are the subjective rights to vote,   to stand for election and – if elected – to sit as a Member of Parliament. Although those rights are important, they are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations. In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. The States have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Podkolzina v. Latvia , 46726/99, 9 April 2002, § 33, ECHR 2002-..., Labita v. Italy   [GC], no.   26772/95, § 201, ECHR 2000-IV, and Gaulieder v. Slovakia , application no. 36909/97, Commission’s report of 10 September 1999). The Court has no difficulty in finding that the refusal to postpone further the enforcement of the applicant’s prison sentence over the parliamentary elections in March 1999 as well as the refusal of prison leave on and around the election day pursued the legitimate aim of ensuring the proper enforcement of prison sentences. Nor were those refusals arbitrary, being grounded on the Act on the Enforcement of Sentences. In determining whether the refusal was proportionate to the aim sought to be achieved the Court must take into account, among other elements, the applicant’s political background and aspirations. The applicant, a long-time municipal counsellor who had stood for Parliament in two previous elections, had been sentenced to one year and six months’ unconditional imprisonment on account of aggravated debtor’s dishonesty and a book-keeping offence. After having been disqualified from sitting on the Municipal Assembly, but shortly before announcing his intention to stand for Parliament he obtained a suspension of the enforcement of his sentence for about two months in order to enable him to organise certain private matters. Shortly thereafter, in early November 1998, he sought a suspension for a further three months, referring to his intention to present himself as a candidate in the March 1999 elections. This request was refused and he was obliged to start serving his sentence in early January 1999 while at the same time campaigning for Parliament. His three requests for leave immediately prior to and on the election day, in order to enable him to complete his campaign, were refused. Even though the refusal to suspend further the enforcement of the applicant’s sentence up to the elections and the refusal to grant him leave on and around the election day did not formally prevent him from standing as a candidate, the Court would not exclude that his campaign may have been somewhat hampered as a result. Article 3 of Protocol No. 1 cannot, however, be interpreted as guaranteeing any absolute right to have the enforcement of a prison sentence suspended or to obtain prison leave in order to facilitate a convict’s or a prisoner’s election campaign. Apart from the fact that the applicant was at no stage barred from running for Parliament he has not complained of having been prevented from voting in the elections. The fact that he was not elected cannot be decisive for the Court’s examination, since the number of votes he might have received, had he been granted the suspension or the leave, is a matter of pure speculation. In conclusion, and regard being had to the wide margin of appreciation afforded to the State in this field, the Court finds no indication of any breach of the applicant’s rights under Article 3 of Protocol No. 1. Neither is there any indication that the applicant was discriminated against, contrary to Article 14 of the Convention read in conjunction with the aforementioned provision. In particular, the Court finds unsubstantiated the argument that the differential treatment to which the applicant was allegedly subjected – as compared to that of his co-convicts – was based on considerations relating to the forthcoming parliamentary elections or on any other improper motives. Article 3 of Protocol No.1 being lex specialis in the field of electoral rights, no further issue arises under Article 10 of the Convention. The complaint under Article 11 of the Convention has not been substantiated. The Court finally observes that the Chief Enforcement Officer’s and the Prison Governor’s refusals were capable of being reviewed by the Department for Prison Administration and, in extraordinary proceedings, by the Supreme Administrative Court. There is no indication that those remedies, at least taken together, failed to meet the requirement of effectiveness in Article 13 of the Convention. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Michael O’Boyle   Nicolas Bratza   Registrar   President