CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 mai 2003

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Pellonpää ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 28 April 1999, Having regard to the partial decision of 16 January 2001, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:     THE FACTS The applicant, Mr Victor Meriakri, is a Moldovan national, who was born in 1952 and lives in Chişinău, Moldova. He was represented before the Court by Mr A. Tănase, a lawyer practising in Chişinău. The respondent Government were represented by their Agent, Mr V. Pârlog, Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 5 March 1997 the applicant was arrested on a charge of complicity in an aggravated robbery. On 22 July 1997 the Buiucani District Court convicted the applicant of aggravated robbery committed by a group of persons in a preliminary conspiracy and, as an extremely dangerous recidivist, sentenced him to twelve years’ imprisonment, to be executed in a labour camp with a severe regime. The applicant appealed against this decision. On 20 November 1997 the Chişinău Regional Court dismissed the appeal as unfounded and upheld the decision of the District Court. The applicant lodged an appeal in cassation against this decision. Following an oral hearing on 12 February 1998, the Appellate Court, in its final judgment, dismissed the appeal and upheld the decision of the Regional Court. To his letter addressed to the Court on 2 August 1999, the applicant attached a request submitted on 16 July 1999 to the prison administration seeking copies of his complaints sent to the Chişinău Public Prosecutor’s Office or the Prosecutor General’s Office and the received replies. In the same request, he sought copies of all documents in connection with his application to the Court, documents which had been requested by the Court. The request bears on the top a hand-written note, which reads: “To the special unit. For action. 17 July 1999”. In reply he received a hand-written list on the verso of his request of 16 July 1999 enumerating eleven complaints which he had addressed to various domestic authorities. To this letter he also attached a letter addressed to him on 20 April 1999 by the Moldovan mission of OSCE. The letter bears a number of stamps indicating that the letter had transited various offices from 5 May 1999 to 25   June   1999. According to the applicant’s acknowledgement on the letter, it was delivered to him only on 1 July 1999. In this letter the applicant makes no specific complaint about the censorship of his correspondence. In his letter of 4 October 1999, the applicant explicitly complained that his letters had been opened by the prison administration. In particular, he requested the Court to ask the head of the special unit of the prison not to open the letters addressed to him. In this respect, he sent back to the Court a letter dated 2 September 1999 which the Court had addressed to him. On the top of this letter, a stamp indicated: “Entry no. 374, on 10 September 1999” and a hand-written mention reads: “The special unit. Received on 10   September 1999”. The applicant’s writing on the letter reads: “I received it and it was given to me on 22 September 1999”. In a letter addressed to the Court on 23 March 2000, the applicant reiterated his complaint about the constant interference by the prison administration with his correspondence with the Court. On 20   September   2000, a letter signed by the applicant was posted to the Court by his wife. In a Court’s letter of 16 May 2000, the applicant was requested to clarify whether he complained about the interference by the prison authorities with his right to respect for his correspondence under Article 8 of the Convention. The applicant made no reply to this letter. On 15 March 2001 the applicant addressed to the Court a new letter to which he had attached a Court’s letter dated 9 February 2001 which had been addressed to him. The letter bears a stamp which reads: “Entry no. 77, 22.02” and a hand-written mention which reads: “The special unit. 22.02.2001”. In a letter dated 2 September 2001, the applicant complained that about 80 pages of documents addressed to him from the Court were handed to him by the prison administration in an open envelope. On 10 June 2002 the Government informed the Court that on 8   April   2002 the Minister of Justice had signed Order no. 122 concerning respect for the right of correspondence of detained persons, which had provided for the direct applicability of Article 8 of the Convention in Moldovan law (see “Relevant domestic law” below). On 10 June 2002 the applicant’s counsel submitted to the Court a copy of a letter dated 4 December 2001 and addressed to him in which the applicant had requested a meeting. The letter was posted on 7 December 2001 accompanied by a written note of the prison’s governor bearing a stamp with a registration number on it, which reads: “We despatch the petition of the convicted prisoner Meriacre Victor Gheorghe detained in the institution OŞC 29/15 in Rîşcani district of Cricova city. Annexe 4 pages”. On 24 November 2002 the Government informed the Court that on 7   November 2002 the Parliament adopted amendments to the Code for Execution of Criminal Sentences and Law on pre-trial arrest (see “Relevant domestic law” below). To his letter of 20 December 2002, the applicant attached a letter which his counsel addressed to the Minister of Justice in which he had requested that correspondence addressed to him by the applicant should not be opened. The counsel relied on Order no. 122 of 8 April 2002 concerning respect for the right of correspondence of detained persons. B.     Relevant domestic law a)     The Moldovan Constitution Article 30. Privacy of correspondence “(1) The State shall ensure the privacy of letters, telegrams, other postal despatches, of telephone conversations and of the use of other legal means of communication”. b)     The Code for Execution of Criminal Sentences Article 14 “(1) A convicted prisoner shall enjoy his rights according to the nature of the offence he has committed and restrictions imposed upon his rights by virtue of the court decision. (2) A convicted prisoner shall be entitled: (c) to receive and send mail, to submit explanations, proposals and complaints.” Article 73 “(1) A convicted prisoner shall be entitled to receive and send letters and telegrams in an unlimited number. (2) A convicted prisoner’s outgoing and incoming correspondence ... shall be subjected to censorship. A petition addressed to an ombudsman by a detained person shall not be censored by the prison administration and shall be transmitted to the addressee within twenty-four hours (as amended by Law no. 18-XIV of 14 May 1998). (4) A convicted prisoner’s proposals, requests and complaints addressed to an hierarchically higher legal authority shall be despatched to such authority within three days.” By virtue of Law no. 1430 adopted on 7 November 2002, which entered into force on 3 December 2002, paragraph 4 of Article 73 was repealed and paragraph 2 was amended and read as follows: “(2) A convicted prisoner’s outgoing and incoming correspondence ... shall be subject to control or censorship, except for correspondence with legal authorities, his lawyers and legally established national and international institutions for the protection of human rights, and shall be despatched or transmitted to the addressee within twenty-four hours of its being filed or received.” c)     The Code of Criminal Procedure Article 383 “ (2) ... packages with provisions and parcels arriving for them shall be subjected to control, and correspondence shall be subjected to censorship. ...” d)     Law no. 1226 of 27 June 1997 on the pre-trial arrest Article 12 “(3) ... the packages with provisions and parcels arriving for them shall be subjected to control, and correspondence shall be subjected to censorship ... .” Article 18 “(2) Complaints, requests and letters of detained persons shall be subject to censorship by the prison administration. Complaints, requests and letters addressed to the public prosecutor shall not be subjected to any control and shall be despatched to the addressee within twenty-four hours from their being filed.” By virtue of Law no. 1430 adopted on 7 November 2002, which entered into force on 3 December 2002, paragraph 2 of Article 18 was amended and read as follows: “(2) Complaints, requests and letters of detained persons, including accused persons, shall be subject to censorship by the prison administration. A detained persons’ correspondence with the public prosecutor, his lawyers and legally established national and international institutions for the protection of human rights shall not be subject to any control or censorship and shall be despatched or transmitted to the addressee within twenty-four hours of its being filed or received. ” e)     Decision of the Government no. 923 of 20 December 1994 concerning the execution of criminal sentences by the convicted prisoners “(18) ... Letters shall be placed in open boxes or shall be transmitted to   representatives of the administration in open envelopes. ... (19) ... Proposals, requests and complaints containing obscene statements, including those of a defamatory nature, which are damaging to the honour and dignity of an employee of the institution, shall not be despatched to the addressee. Such letters shall be attached to the personal file and the sender shall be subject to disciplinary sanctions. ... Outgoing and incoming correspondence ... shall be subjected to censorship.” f)     Order of the Minister of Justice no. 122 of 8 April 2002 concerning the respect for the right to correspondence of detained persons “(1) The correspondence of detained persons with an ombudsman, with the Council of Europe, with the European Court of Human Rights or with his or her lawyer shall not be subject to control or censorship and shall despatched to the addressee within twenty-four hours of its being filed or received.” COMPLAINTS The applicant complains, invoking in substance Article 6 of the Convention, that he did not have a fair hearing before the domestic courts. In particular, he complains that he was refused the rights to call and question the injured party and the witnesses proposed by him, and that the evidence proposed by him, in particular, the gun which he supposedly used while he committed the robbery, was not admitted. He further complains that the domestic courts erroneously assessed the evidence before them and that the available evidence was not sufficient for his conviction. He also complains, invoking in substance Article 8 of the Convention, about the interference by the prison authorities with his right to respect for his correspondence with the Court and certain domestic authorities. THE LAW 1.     The applicant complains that he did not have a fair hearing before the domestic courts. In particular, he complains that the domestic courts erroneously assessed the evidence before them and that the available evidence was not sufficient for his conviction. The Court notes that the final judgment in the present case was delivered by the Appellate Court on 12 February 1998, while the applicant lodged his complaint with the Court by letter dated 28 April 1999, which is more than six months after the Appellate Court delivered its judgment. The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with a matter if it has been presented within a period of six months from the date on which the final decision was taken. It follows that this complaint was introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. 2.     The applicant complains about the interference by the prison authorities with his right to respect for his correspondence with the Court and certain domestic authorities. The Court considers that this complaint falls under Article 8 of the Convention, which provides, in so far as relevant: “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 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.” a)     Under Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted. The Government submit in this respect that the applicant failed to lodge a complaint about the interference by the prison authorities with his right to respect for his correspondence with the competent domestic authority. The applicant rejects that argument, maintaining that Moldovan law only provided that such a complaint could be lodged with the prison administration, it being unclear whether such a claim could be lodged with a court or a judge. Accordingly, he could not be said to have an effective remedy at his disposal in respect of the interference complained of. The Court notes that the Government have not indicated any specific domestic provisions providing for such a complaint and have not submitted any case-law supporting their argument that it would be possible to submit such a claim. Nor have they specified the particular authority competent to examine such a complaint. The Court therefore considers that it has not been shown that the applicant had any effective remedy at his disposal which would have enabled him to submit his complaint under Article 8 of the Convention about the interference with his correspondence with the Convention organs to the domestic authorities. Accordingly, this part of the application cannot be declared inadmissible for non-exhaustion of domestic remedies. b)     As to the substance of the complaint, the Government do not contest the facts alleged by the applicant and submit that the measures applied by the authorities to the applicant’s correspondence complied with the applicable domestic regulations. They conclude that, therefore, the interference complained of was “in accordance with the law” and proportionate to the nature of the   applicant’s conviction. They also submit that the control over correspondence of detained persons is not in itself incompatible with the Convention. The Government further request the Court to take note of the amendments made in domestic law in 2002. The applicant submits in reply that while it is true that the censorship of correspondence was in accordance with domestic law, the provisions of Moldovan law did not specify with clarity and precision the limits of the discretion vested in the public authorities. He concludes that the interference complained of was not “in accordance with the law”. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint concerning the interference by the prison authorities with his right to respect for his correspondence with the Court and certain domestic authorities; Declares the remainder of the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President