CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 juin 2004

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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 8   January 1999, Having regard to the partial decision of 1   October 2002, 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   Štefan Varga, is a   Slovakian national, who was born in 1963 and lives in Košice. He was represented before the Court by Mr   A.   Fuchs, a   lawyer practising in Košice. The respondent Government were represented by Mr P.   Kresák, their Agent. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be   summarised as follows. From 27   May 1986 until 15   July 1988 the applicant served a   prison sentence in the Dubnica nad Váhom prison. From 15   July 1988 until 1989 he continued to   serve this sentence in the Košice ‑ Šaca prison. Letters which he sent from the prison to his parents were opened, read and censored by the prison authorities. From 5   July 1990 to 31   December 1991 the applicant was detained on remand in the Košice detention centre. Letters which he sent from the detention centre to his parents were monitored by the detention centre authorities and opened and read by the police investigator in charge of his case. The applicant further served other prison sentences in the Košice ‑ Šaca prison (from 1992 until 1994), in the Ružomberok prison (from 1994 until 1995) and in the Košice ‑ Šaca prison (from 1995 until 1997). On 28   July 1997 the applicant addressed a   petition ( podnet ) to the Constitutional Court in which he complained about interference with his correspondence in the period between January and 24   July 1997 while serving a   prison sentence. On 27   August 1997 the Constitutional Court declared the petition admissible. The Constitutional Court informed the applicant several times that legal representation was mandatory in the proceedings before it and requested him to appoint a   lawyer. On   8   October   1997 the Constitutional Court discontinued the proceedings as the applicant had failed to   comply with the request. On 21   October 1998, for the second time, the applicant seized the Constitutional Court. He filed a   petition alleging a   violation of his right to respect for his correspondence. He referred to the monitoring of his correspondence between 1986 and 1989 in the Dubnica nad Váhom prison and the Košice ‑ Šaca prison, between 1990 and 1991 in the Košice detention centre and between 1996 and 1997 in the Košice ‑ Šaca prison. He apparently submitted copies of letters addressed by him to his father which bore the official stamps showing the date on which the letters had been read by the prison authorities. In a   letter of 15   December 1998 a   single Constitutional Court judge informed the applicant that the Constitutional Court had no jurisdiction ratione temporis to   deal with his petition. He noted that all the letters which the applicant had submitted and all the official stamps showing that the prison authorities had read these letters dated back to the period prior to the establishment of the Constitutional Court on 15   February 1993. In the late 1998 and early 1999 the applicant addressed the Dubnica nad Váhom prison administration, the public prosecution service, the Košice ‑ Šaca prison administration and the Ružomberok prison administration with complaints about interference with prisoners’ correspondence. In their respective letters of 30   November 1998, 8   January, 14   April and 15   April 1999 the director of the Dubnica nad Váhom prison, the Košice   I   District Office of Public Prosecution, the director of the Košice ‑ Šaca prison and the director of the Ružomberok prison informed the applicant about the relevant provisions of the Prison Sentences Execution Act and the Prison Sentences Execution Orders governing monitoring of prisoners’ correspondence. They observed that the applicable legal rules had not been breached in the applicant’s case. In 2000 the applicant lodged an   action against (i)   the Ministry of Justice; (ii)   the General Directorate of the Prison Administration ( Generálne riaditeľstvo zboru väzenskej a   justičnej stráže ); (iii)   the Director General of the Prison Administration; (iv)   the Prison Administrations in Ružomberok, Dubnica nad Váhom and Košice–Šaca prisons; and (v)   several officials of the Prison Administration. He sought protection of his personal integrity and compensation for moral damage in connection with the alleged violation of the secrecy of his correspondence while in detention and serving his prison sentences. On 11   February 2002 the Košice II District Court ( Okresný súd) dismissed the applicant’s request for an   exemption from the obligation to   pay the court fee and for legal aid. On 31   May 2002 the Košice Regional Court ( Krajský súd ) upheld this decision. On 28   April 2003 the District Court discontinued the proceedings as, despite its five previous requests and warnings, the applicant had failed to   pay the court fee. On 31   July 2003, on the applicant’s appeal, the Košice Regional Court upheld this decision. On 3   October 2003, for the third time, the applicant again seized the Constitutional Court with a   complaint of an   interference with his correspondence while in the Košice ‑ Šaca prison between January and 24   July 1997 and of the discontinuation of the civil proceedings on his civil action of 2000. On 6   November 2003 the Constitutional Court declared the complaint inadmissible. It found that the applicant had raised his new complaint about the interference with his correspondence outside the two months’ time ‑ limit pursuant to Article   53 (3) of the Constitutional Court Act. The Constitutional Court further found that the applicant had failed to   exhaust legal remedies as regards his complaint about the discontinuance of his civil proceedings in that he had not lodged an   appeal on points of law against the decision of the Regional Court of 31   July 2003. B.     Relevant domestic law 1.     The Constitution Article 22 provides as follows: “1.     Secrecy of correspondence, other communications and written messages delivered by post and protection of personal information shall be guaranteed. 2.     No one shall violate the secrecy of letters, other communications and written messages kept private or delivered by post or otherwise, except in cases specified by law. This provision applies to communications delivered by telephone, telegraph and other similar means.” Article   127, as in force from 1   January 2002, provides that: “1.     The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2.     When the Constitutional Court finds that a   complaint is justified, it shall deliver a   decision stating that a   person’s rights or freedoms set out in paragraph 1 have been violated as a   result of a final decision, by a   particular measure or by means of any other interference. It shall quash such a   decision, measure or other interference ... At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation to that existing prior to the violation. 3.     In its decision on a   complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.” ... Article 130 (3), as in force until 30 June 2001, provided that: “The Constitutional Court may commence proceedings also upon a   petition ( podnet ) submitted by legal entities or individuals claiming a violation of their rights.” 2.     The Constitutional Court Act The implementation of the above provision of Article   127 of the Constitution is set out in more detail in sections 49 to 56 of the Constitutional Court Act No. 38/1993 Coll., as amended. The relevant amendment entered into force on 20 March 2002. Pursuant to Section   53   (3): “A   constitutional complaint shall be lodged within a   period of two months from the date on which the decision in question has become final and binding or on which a   measure has been notified or on which a   notice of other interference has been given. As regards the measures and other interferences, the above period shall commence when the complainant could have become aware of them.” 3.     The Prison Sentences Execution Act The lex generalis governing execution of prison sentences is the Prison Sentences Execution Act No.   59/1965 Coll., as amended. Its Section   12 deals with the correspondence of convicted prisoners. Paragraph 1, as amended from 1   July 1990 by Act 179/1990 Coll., provides that: “A   convicted prisoner may receive and send correspondence without restriction. The prison director or other persons authorised by him may inspect ( nahliadnuť ) prisoners’ correspondence with the exception of petitions, complaints or requests addressed to public authorities and correspondence with prisoners’ lawyers sent to their professional address.” 4.     The Prison Sentences Execution Orders Further details concerning the execution of prison sentences are set out in the Prison Sentences Execution Orders issued by the Minister of Justice in the form of a   Regulation published in the official Collection of Laws. The Prison Sentences Execution Order No.   332/1990 Coll. was in force from 21   October 1991 until 25   May 1994. Section 46 dealt with the correspondence of convicted prisoners. Its relevant part provided as follows: “1.     Letters sent by or to convicted prisoners may be   inspected ( nahliadnuť ) without their consent only by the prison director or by the prison’s social workers authorised by him. This authorisation shall be made public in the prison’s ordinance ( ústavný poriadok ). 4.     In the event that letters sent to convicted prisoners are inspected, they must be   handed over to them without delay. 6.     The provisions of this Section do not relate to correspondence under Section   56 of the Prison Sentences Execution Order [dealing with the protection of convicted prisoners’ rights] which is sent to convicted prisoners by the authorities referred to in Section 12 (1) of the Prisons Sentences Execution Act [see above].” On 25   May 1994 the Prison Sentences Execution Order No.   125/1994 Coll. came into force. Convicted prisoners’ correspondence is governed by Section   41 which, insofar as relevant, provides as follows: “1.     Incoming or outgoing correspondence of convicted prisoners can be   inspected ( nahliadnuť ) without their consent only by the prison director or members of the prison staff authorised by him. In the event that letters sent to convicted prisoners are inspected, they must be   handed over to them without delay with the exception of the correspondence referred to in Paragraph 2. 2.     Letters with offensive content which damage the interests of the convicted prisoner or other persons or entities and letters encouraging criminal activity or containing unauthorised objects shall be   placed in the convicted prisoner’s personal file. He or she shall be   informed accordingly. Any further action shall depend on the nature of the information or object retained.” 5.     The Civil Code According to Article 11: “Any natural person shall have the right to protection of his or her personal integrity ( osobnosť ), in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics.” Pursuant to Article13: “1.     Any natural person shall have the right to   request that an   unjustified infringement of his or her personal integrity be   stopped, that the consequences of such an   infringement be   eliminated, and that he or she be provided appropriate satisfaction. 2.     In cases when the satisfaction obtained under paragraph 1 [of that Article] is not sufficient, in particular because a   person’s dignity and position in society has been considerably diminished, the injured person shall be entitled to monetary compensation for non ‑ pecuniary damage. 3.     When determining the amount of the compensation under paragraph 2 [of that Article], the courts shall take into account the seriousness of the prejudice suffered by the person concerned and the circumstances under which the violation of that person’s rights occurred.” COMPLAINTS The applicant alleged a   violation of Article   8 both taken alone and together with Article   13 of the Convention in that his correspondence addressed to   his parents from prisons and detention centres was monitored. THE LAW 1.     The applicant complained under Article   8 of the Convention that the letters which he had sent from prisons and detentions centres to his parents had been monitored. Under Article   13 of the Convention he also complained that he had had no effective remedy at his disposal in this respect. Article   8 of the Convention 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 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.” Article   13 of the Convention provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (a)     The Court recalls that it can only examine facts which occurred after the entry into force of the Convention with respect to the Contracting Party concerned. Since the former Czech and Slovak Federal Republic, to which Slovakia is one of the successor States, ratified the Convention on 18   March 1992, the Court lacks temporal jurisdiction to   examine the applicant’s complaints about the control of his correspondence prior to that date. It follows that the relevant part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. (b)     To the extent that the applicant complained about the interference with his correspondence after 18 March 1992, the Government primarily submitted that the complaint under Article   8 of the Convention be rejected for the applicant’s failure to   exhaust domestic remedies as required by Article   35 §   1 of the Convention in that he had failed to   seek protection of his personal integrity before ordinary courts under Articles   11 et seq. of the Civil Code. Considering this remedy to   be   “effective”, the Government considered that the applicant’s complaint under Article   13 of the Convention should be   rejected as being manifestly ill-founded. They maintained that the applicant himself considered an   action for protection of personal integrity to   be an   “effective remedy” as, in 2000, he had tried to   make use of it. He however failed to   respect the applicable procedural requirements. Should the Court consider that an   action for protection of personal integrity was not an   effective remedy in the instant case, the Government invited the Court to   reject the claim as having been lodged outside the six ‑ months’ time ‑ limit prescribed by Article   35 §   1 of the Convention. They maintained that the applicant’s petitions of 1997 and 1998 to the Constitutional Court could not be   taken into account as, at the relevant time, they were not effective remedies in the Convention sense. The Government alternatively invited the Court to   reject the application as manifestly ill-founded. The inspection of the applicant’s correspondence had a   legal basis in the Prison Sentences Execution Act and the Prison Sentences Execution Order. According to them, the inspecting of the applicant’s private correspondence was necessary in a   democratic society in the interest of public safety, for the prevention of disorder or crime, for the protection of health or morals and for the protection of the rights and freedoms of others. In this context, the Government pointed out that the applicant had been convicted of numerous criminal offences. As regards the proportionality test, the Government maintained that any inspection of prisoners’ correspondence only concerns correspondence of a   private nature. Official correspondence, such as correspondence with a   lawyer and correspondence concerning prisoners’ official complaints and petitions (including those to international organs and organisations), cannot be   inspected. For such official correspondence there are separate mailboxes and sealed envelopes are authorised. The Government further emphasised that, since 1989, the relevant legislation does not allow any censorship of convicted prisoners’ correspondence. The screening of convicted prisoners’ private correspondence is however carried out globally. Only letters whose content is prohibited under Article   41 (2) of the Prison Sentences Execution Order may be stopped. Such letters are to   be   placed into the convicted prisoner’s personal file and he or she is to be informed accordingly. The Government finally pointed out that, during their second periodic visit to Slovakia which took place between 9 and 18   October 2000, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment had found no shortcomings in the legislation or its implementation as regards the control of convicted prisoners’ correspondence. The applicant considered that a   civil action for protection of personal integrity under Articles 11 et seq. of the Civil Code was not applicable in the circumstances of his case. He pointed out that there were no decisions of the Supreme Court which would prove its effectiveness in respect of an   alleged violation of secrecy of correspondence. He maintained that, in any event, such an   action would be   bound to   fail given that the interference with his correspondence had had a   valid legal basis. The applicant further pointed to the Government’s argument that monitoring of convicted prisoners’ private correspondence is carried out globally, i.e.   that all correspondence is being inspected with the exception of the privileged official correspondence. Insofar as the Government justified this measure by its necessity in the interest of public safety, for the prevention of disorder or crime, for the protection of health or morals and for the protection of the rights and freedoms of others, the applicant considered this an   acceptance on the part of the Government that they consider all convicted persons’ private correspondence as an a   priori threat to these values. The applicant also emphasised that prison authorities have a   free discretion to   monitor all convicted prisoners’ private correspondence without any legitimate criteria. He considered such a   legislative situation to   be   incompatible with Article   8 of the Convention. The Court considers that it is not called upon to   decide whether the applicant has respected the requirement of exhaustion of domestic remedies and the six months’ time ‑ limit pursuant to Article   35 §   1 of the Convention in respect of this part of the application as, in any event, it is inadmissible for the following reasons. The applicant’s complaint is in substance aimed at the relevant legislation over which the Court has no power of   review in abstracto rather than at any specifically determined instance of interference. The Court however notes that it has not been disputed between the parties that the applicant’s correspondence was actually subjected to   monitoring pursuant to the applicable laws when he was in prison in Košice ‑ Šaca between 1992 and 1994, in Ružomberok between 1994 and 1995 and Košice ‑ Šaca between 1995 and 1997. It is thus clear that there was “interference by a   public authority” with the exercise of the applicant’s right to respect for his correspondence. The Court recalls that this interference will contravene Article   8 of the Convention unless it is “in accordance with the law”, pursues a   “legitimate aim” under paragraph   2 and is “necessary in a   democratic society” in order to achieve that aim (see Petra v.   Romania , no.   27273/95, §   36, ECHR 1998 VII ). The contested interference had a   legal basis, namely Section   12 (1) of the Prison Sentences Execution Act of 1965, as amended by Act No.   179/1990, and also the Prison Sentences Execution Orders. It may be   assumed that it pursued the legitimate aim of “the prevention of disorder or crime”. The Court recalls that, in assessing whether an interference with the exercise of the right of a convicted prisoner to respect for his correspondence was “necessary” for one of the aims set out in Article   8 §   2, regard has to   be   paid to the ordinary and reasonable requirements of imprisonment. It has been recognised that some measure of control over prisoners’ correspondence is called for and is not of itself incompatible with the Convention (see Silver and Others v. the United Kingdom , judgment of 25   March 1983, Series   A no.   61, pp.   37-38, §   98). The monitoring of convicted prisoners’ private correspondence, as authorised by the relevant laws, involves opening and reading private letters and checking for unauthorised objects. Any official correspondence, including any legal correspondence, is a   priori excluded from it. The applicant, who was convicted and imprisoned numerous times in the relevant period, was sending letters to his father. He has not shown that this correspondence was interfered with in any way other than authorised by law, as, for example, by censoring, delaying, stopping etc. Nor has he sought to   argue that any of his letters were eventually withheld from him for having prohibited content or containing unauthorised objects. The monitoring of private correspondence of the convicted applicant in accordance with the relevant laws cannot, in itself, be   considered as unreasonable or arbitrary having regard to the ordinary requirements of imprisonment. The Court therefore considers that, in the particular circumstances of the case, the monitoring can be   regarded as having been necessary in a   democratic society within the meaning of Article   8 §   2 of the Convention. It follows that this complaint is manifestly ill-founded and must be   rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The applicant complained that he had no effective remedy at his disposal as regards the alleged violation of Article   8. He relies on Article   13 of the Convention which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Government maintained that the applicant did in fact have an   effective remedy, namely a   legal action for the protection of personal integrity under Articles   11 et seq. of the Civil Code. They thus considered the applicant’s complaint under Article   13 of the Convention manifestly ill ‑ founded. The applicant rejected this view. According to the Court’s case-law, Article   13 applies only where an   individual has an “arguable claim” to   be   the victim of a   violation of a   Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series   A no.   131, § 52). The Court has found above that the applicant’s complaint under Article   8 of the Convention is inadmissible. For similar reasons, the applicant did not have an   “arguable claim” and Article   13 is therefore inapplicable to his case. It follows that this complaint 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 remainder of the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President