EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 29462/95

Ernst Rehbock

against

Slovenia

REPORT OF THE COMMISSION

(adopted on 23 April 1999)

I. INTRODUCTION

(paras. 1 - 17) ....................................................... 1

A. The application

(paras. 2 - 4) .................................................... 1

B. The proceedings

(paras. 5 - 12) ................................................... 1

C. The present Report

(paras. 13 - 17) ................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 18 - 68) ...................................................... 4

A. The particular circumstances of the case

(paras. 18 - 58) ................................................. 4

B. Relevant domestic law

(paras. 59 - 68) ................................................. 8

III. OPINION OF THE COMMISSION

(paras. 69 - 110) .................................................... 10

A. Complaints declared admissible

(para. 69) ..................................................... 10

B. Points at issue

(para. 70) ..................................................... 10

C. As regards Article 3 of the Convention

(paras. 71 - 78) ................................................ 10

CONCLUSION

(para. 79) ..................................................... 12

D. As regards Article 5 para. 4 of the Convention

(paras. 80 - 85) ................................................ 12

CONCLUSION

(para. 86) ..................................................... 12

TABLE OF CONTENTS

Page

E. As regards Article 5 para. 5 of the Convention

(paras. 87 - 91) ................................................ 13

CONCLUSION

(para. 92) ..................................................... 13

F. As regards Article 8 of the Convention

(paras. 93 - 105) ............................................... 13

a) As regards screening of the applicant’s correspondence with the Commission

(paras. 96 - 100) ............................................... 14

CONCLUSION

(para. 101) .................................................... 14

b) As regards screening of the applicant’s other correspondence

(paras. 102 - 104) .............................................. 14

CONCLUSION

(para. 105) .................................................... 15

G. Recapitulation

(paras. 106 - 110) ................................................. 15

APPENDIX: DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION .......... 16

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a German citizen, born in 1959 and resident in Landshut.  He was represented before the Commission by Mr. H. Boog, a lawyer practising in Rostock.

3 . The application is directed against Slovenia.  The respondent Government were represented by Mrs. M. Tovornik, Ambassador Extraordinary and Plenipotentiary, the Permanent Representative of Slovenia to the Council of Europe.

4 . The case concerns the applicant’s complaints relating to his arrest and subsequent detention.  It raises issues under Article 3, Article 5 paras. 4 and 5 and under Article 8 of the Convention.

B. The proceedings

5 . The application was introduced on 17 September 1995 and registered on 6 December 1995.

6 . On 18 January 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government's observations were submitted on 9 April 1996, after an extension of the time-limit fixed for this purpose.  On 25 April 1996 the President of the First Chamber set, at the Government’s request, a new time-limit for supplementing the observations.  The Government’s supplementary observations were submitted on 21 May 1996.  The applicant replied on 1 and 29 January, 28 February and 7 March 1997, after two extensions of the time ‑ limit.  On 16 April 1996 the Commission granted the applicant legal aid for the representation of his case.

8 . On 20 May 1998 the Commission declared admissible the complaints under Article 3, Article 5 paras. 4 and 5 and under Article 8 of the Convention.  It further decided not to pursue the examination of whether the applicant’s right under former [1] Article 25 para. 1 of the Convention was interfered with, and declared inadmissible the remainder of the application.

9 . The text of the Commission's decision on admissibility was sent to the parties on 5 June 1998 and they were invited to submit, before 17 July 1998, further observations on the merits dealing with specific questions put by the Commission.  The applicant submitted observations on 6 August 1998, after an extension of the time-limit.  On 3 September 1998 the Government submitted observations on the admissibility of the applicant’s complaint under Article 3 of the Convention and requested the Commission to set a new time-limit should further observations on the merits of the case be required.  On 4 September 1998 the President of the First Chamber set a new time-limit for submission of the Government’s observations on the merits expiring on 9 October 1998.  The respondent Government submitted no further observations.

10 . Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in Plenary.

11 . On 19 April 1999 the Commission decided that there was no basis on which to apply former Article 29 of the Convention.

12 . After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

13 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:             

MM. S. TRECHSEL, President

E. BUSUTTIL

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

J.-C. GEUS

B. MARXER

M.A. NOWICKI

Sir Nicolas BRATZA

MM. I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

14 . The text of this Report was adopted on 23 April 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

15 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State              concerned of its obligations under the Convention.

16 . The Commission's decision on the admissibility of the application is annexed hereto.

17 . The full text of the parties’ submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

Treatment of the applicant during his arrest and detention

18 . On 8 September 1995 at about 2 p.m. the applicant crossed the border between Austria and Slovenia near Å entilj.  In his car he had a package of pills which an acquaintance of Slovenian origin had asked him to bring to Slovenia.  He did not declare this fact to the customs officers.  At 4.55 p.m. of the same day the applicant was arrested by the Slovenian police in Dolič.

19 . According to the applicant's version of the facts, he found himself threatened by several men who had a sawn-off shotgun and pistols.  They were in plain clothes and wore no visible signs indicating that they belonged to the police.  They attacked the applicant without any prior warning.  He was held tight and made no attempt to resist.  Despite his shouting in both German and English that he was not resisting he was dragged brutally to the bonnet of a car.  Two men held him tight and pushed the upper part of his body against the bonnet and four other men kept hitting his head with cudgels and fists.  His face was seriously injured and he suffered from severe pains.

20 . According to the respondent Government, the applicant was arrested in the context of an action which had been planned by the competent authorities on the basis of their operational data.  When constituting the arrest team the authorities bore in mind that the applicant, whom they suspected of being a drug dealer, was extremely strong as he had won the German championship in body-building on several occasions.

21 . The Government further submit that the applicant was arrested by four police officers in duty anoraks visibly indicating that they belonged to the police.  They were equipped with personal defence arms.  The officers warned the applicant that they belonged to the police and asked him to keep still.  As he disobeyed their order and attempted to resist his apprehension, the police officers had to restrain him by means of physical force and handcuffs.  While they were taking a grip on the applicant and pushed him to the ground, the applicant hit his head on the bumper of a nearby car.

22 . Finally, the Government refer to the conclusion reached by the Commission of the Public Safety Administration in Slovenj Gradec according to which the police officers arresting the applicant acted in accordance with Section 154 of the Internal Affairs Act of 1980 and with Sections 9 and 12 of the Instruction on Use of Coercive Measures of 1981 (see “Relevant domestic law” below).  They maintain, without having submitted any relevant document in support of this allegation, that the use of physical force during the applicant’s arrest was legitimate irrespective of its consequences.

23 . After his arrest the applicant was detained by the police.  He was suffering from headaches and had problems with his vision.  He was threatened with beating and sworn at as "German Nazi swine".  Although it was cold, he did not receive any covers.  No meals or drinks were served to him nor did he receive toilet paper.  He was not allowed to contact a lawyer and was obliged to sign a statement that he had himself caused the injury and that he had not asked for a lawyer.  Subsequently the applicant was allowed to call his fiancée in Germany.

24 . The applicant was first examined by a doctor at the Maribor General Hospital on 9 September 1995.  The report states that he was brought to the hospital by the police and that his jaw was injured.  The applicant alleged to the doctor that he had been injured by the police.  The latter stated that the applicant had hit the edge of a car during his arrest.

25 . The doctor found that the applicant's temporomandibular joint was sensitive to pressure and that he could not open his mouth properly.  The report further indicates that the applicant's occlusion was irregular as the teeth on the left side had been displaced.  The doctor x-rayed the applicant and diagnosed a double fracture of the jaw and facial contusions.

26 . The doctor concluded that a surgery under general anaesthesia was necessary and made arrangements for it to be carried out the next day.  He allowed the police to keep the applicant in custody in the meantime.

27 . On 10 September 1995 the applicant was brought to the hospital but he did not consent to the intervention as he considered that he would be released soon and that he would undergo the operation in Germany.  It was agreed that the applicant would be examined again on 12 September 1995.

28 . On 12 September 1995 the applicant was re-examined and stated that he felt sick and that he had vomited.   He did not consent to the surgery recommended by the doctor.  The latter ordered that pulpy food should be served to the applicant and that he should be provided with sugar-free chewing-gum.  Another examination was fixed for 18 September.

29 . The medical report of 18 September 1995 indicates that the applicant felt better.  His pains were weaker but still present when he was chewing and eating.  He could open his mouth only by some fifteen to twenty millimetres.  The doctor recommended that the applicant should be provided with pulpy food and chewing-gum.

30 . The next medical examination was scheduled for 25 September 1995 but it did not take place.  The applicant signed a statement, according to him under pressure, that he did not wish to be examined in a hospital. 

31 . Further examinations at the Maribor General Hospital took place on 3 October and on 25 and 27 November 1995.  The applicant admitted a slight improvement of his problems with the jaw but complained of pains in his abdomen and blood in his excrements.  He refused a rectal examination.  His abdomen and urine were examined but no abnormalities were found.  The doctors prescribed a special diet and, if need be, a further examination.

32 . In a letter of 20 November 1995 to the prison governor the applicant stated that he had unsuccessfully attempted, as from the very first week of his detention, to contact him both in person and in writing, that he had not been allowed to contact the German consul and  that he had not been provided with pulpy food as recommended by the doctors.  He requested an appropriate examination in a hospital.

33 . On 23 November 1995 the applicant complained in writing to the prison governor that his jaw was aching.  On 26 and 28 November 1995 the applicant again asked the prison governor for an examination in hospital.

34 . On 29 November 1995 the applicant received the medical documents relating to his treatment.  Until then these documents had been constantly refused to him and the authorities had not accepted the applicant's requests to give him the grounds for such refusal in writing.

35 . On 4 December 1995 the applicant was examined again at the Maribor General Hospital.  The report states that his occlusion was damaged and that the applicant complained about pain in his jaw.

36 . On 7 December 1995 the applicant was treated in the hospital for two superficial cuts on his left wrist which he had caused himself in depression on 3 December 1995.

37 . In a letter of 17 December 1995 addressed to the Ministry of Justice the applicant complained that he had been brutally beaten up and that he had suffered a double fracture of his jaw.  He stated that he had not been provided with appropriate medical care.  He claimed damages of DEM 1,000,000.

38 . A further medical examination was carried out on 16 January 1996.  The applicant complained about pain in his left temporomandibular joint and in his ears.  The doctor prescribed analgesics to the applicant and noted that a specialist should be consulted as regards the treatment of his jaw.

39 . On 23 January 1996 a specialist concluded that the applicant's jaw required prothetic rehabilitation or even a surgery.  As the applicant stated that he wished to undergo the treatment in Germany, the doctor recommended that he should be sent there as soon as possible.

40 . On 5 March 1996 the applicant complained to the prison governor that he was suffering pains from an inflammation in his middle ear and requested treatment in a hospital.

41 . On 7 March 1996 the applicant complained to a doctor about severe pains in his head and that he had not been provided with appropriate medical care in the prison.  In particular, he complained that the medicaments prescribed to him had not been given to him regularly.

42 . In a letter of 9 June 1996 addressed to the German Embassy in Slovenia the applicant complained that he had not been provided with adequate food and medicaments prescribed by the doctors.  He also stated that for this reason he had once refused to undergo a medical examination.

43 . On 10 June 1996 the applicant complained to the Maribor prison governor that on 8 and 9 June the guards had not provided him with analgesics prescribed by the doctor and that, as a result, he was suffering from severe pains and was depressed.

44 . On 20 June 1996 the applicant complained to the prison governor that on 18 and 19 June he had not been provided with the medicaments which had been prescribed to him.  On 30 June and 3 July 1996 he complained again that medicaments had been refused to him.  In his complaints the applicant stated that he wished to bring criminal proceedings against the staff of the prison and requested that he should be allowed to file a criminal complaint with the police.

45 . On 4 July 1996 the applicant complained to a judge of the Maribor Higher Court (Višje sodišče) that he suffered from severe pains and that pain killing medicaments had been provided to him irregularly.

Relevant decisions concerning the applicant’s detention on remand

46 . The applicant was brought before an investigating judge of the Slovenj Gradec Regional Court (Okrožno sodišče) in the morning of 10 September 1995.  It was on this occasion that he was granted the assistance of a lawyer for the first time.  The applicant was in a state of shock and had difficulties in understanding the interpreter who did not speak German properly.

47 . On 10 September 1995 an investigating judge of the Slovenj Gradec Regional Court remanded the applicant in custody as from the moment of his arrest, i.e. 4.55 p.m. of 8 September 1995.

48 . On 3 October 1995 the applicant lodged, through his lawyer, a request for release.  He submitted that he would not abscond and offered a security of DEM 50,000.  The applicant further claimed that his detention was no longer necessary as all witnesses in the criminal proceedings which had been brought against him had already been heard and all relevant evidence had been taken.

49 . On 6 October 1995 the Slovenj Gradec Regional Court extended the applicant's detention on remand until 8 December 1995 pursuant to Section 205 (2) of the Code of Criminal Procedure.  The court noted that the investigation into the applicant's case could not  be completed within a month.

50 . The applicant lodged a complaint against the aforesaid decision.  He claimed that there existed no reason for his detention and that the Regional Court had not decided on his request for release of 3 October 1995.

51 . On 19 October 1995 the Maribor Higher Court dismissed the applicant's complaint.  It noted that the applicant was a foreign national who had no links in Slovenia.  It therefore held that there existed the risk of his absconding.  As to the applicant's request for release on bail, the Higher Court held that it had to be first examined by the Regional Court.

52 . On 26 October 1995 the Slovenj Gradec Regional Court dismissed the applicant's request for release of 3 October 1995.  The court did not consider the security offered by the applicant as a sufficient guarantee for his attending the proceedings before it.

53 . On 27 November 1995 the Slovenj Gradec Regional Court extended the applicant's detention on remand pursuant to Section 272 (2) of the Code of Criminal Procedure.  The court noted that on 24 November 1995 the Public Prosecutor's Regional Office in Slovenj Gradec had indicted the applicant on charges of smuggling and of unlawful production of and dealing in narcotics.

54 . On 13 December 1995 the Maribor Higher Court dismissed the applicant's complaint against the aforesaid decision.

55 . On 29 November 1995 the applicant lodged, through his lawyer, another request for release.  He claimed that there existed no relevant reasons for his detention and offered a security of DEM 50,000.

56 . The Slovenj Gradec Regional Court dismissed the request on 22 December 1995.

Interferences with the applicant’s correspondence

57 . During his detention in Slovenia all the applicant’s correspondence was monitored.  During the preliminary stage and in the course of proceedings at first instance the correspondence was delivered to the applicant with delays up to three or four weeks.  The delays were due to the fact that the applicant was detained in the Maribor prison whereas his correspondence was monitored by a judge of the Slovenj Gradec Regional Court dealing with the case.

58 . The first letter of the Commission’s Secretariat was sent to the applicant on 27 October 1995.  It was handed to the applicant, open, on 9 November 1995.  The second letter with the application form was sent by urgent mail on 20 November 1995 and it was transmitted to the applicant on 28 November 1995.

B. Relevant domestic law

The Constitution

59 . Article 26 gives everyone the right to compensation for any damage resulting from erroneous official acts committed by individuals or bodies carrying out tasks vested in State organs.

Internal Affairs Act of 1980

60 . Section 54 of the Internal Affairs Act ( Zakon o notranjih zadevah) of 25 November 1980, as amended, entitles authorised officials to have recourse to physical force in the exercise of their duties when, inter alia , they cannot otherwise overcome the resistance of a person who refuses to comply with lawful orders, who is to be arrested or remanded in custody, or when it is necessary in order to prevent an attack against them or other persons or objects they protect.

Instruction on Use of Coercive Measures of 1981

61 . Section 9 of the Instruction on Use of Coercive Measures (Navodilo o uporabi prisilnih sredstev) of 1 September 1981, as amended, provides, inter alia, that recourse to physical force in cases enumerated in Section 54 of the Internal Affairs Act of 1980 should normally be restricted to professional grips.  When the authorised officials consider that the latter means is not sufficient, they may have recourse to blows, strokes or a rubber truncheon.  In any event, physical force and rubber truncheons may only be used to the extent that it is strictly necessary for controlling the resistance of a person or for preventing an attack, and it should never result in ill-treatment of the person concerned.

62 . Section 12 of the Instruction entitles the authorised officials to handcuff or to tie a person by other means if it can be reasonably expected that the person concerned will actively resist, attempt to escape or harm himself or herself.

Code of Criminal Procedure

63 . Section 205 (1) provides that an investigating judge may remand an accused person in custody for no longer than a month from the moment when he or she was arrested.  After the expiry of this period, a person may be detained only upon the basis of a decision to extend his or her detention.

64 . Under Section 205 (2), such a decision shall be delivered by a court's chamber and the accused person's detention may thereby be extended for no longer than two months.

65 . Section 211 (3) provides that a detainee may correspond or establish other contacts with persons outside the prison with the consent and under the supervision of the investigating judge dealing with his or her case.  The latter may prohibit the detainee from sending or receiving letters or to have other contacts when they could affect the criminal proceedings pending against him or her.  However, it is not permissible to prevent a detained person from sending applications or appeals.

66 . Pursuant to Section 211 (4), during the period between the filing of indictment and the moment when a judgment becomes final, the control of a detained person’s correspondence shall be exercised by the president of a court's chamber.

67 . In accordance with Section 272 (2), when an indictment is filed against a person detained on remand and provided that it does not contain a proposal that such a person should be released, a court’s chamber shall examine, ex officio and within three days after the filing of the indictment, whether relevant reasons for a further detention of the accused exist and issue a decision by which either the detention on remand is extended or the person concerned is released.

68 . Section 542 (1) gives a right to compensation to detained persons who were not committed for trial, or were acquitted or discharged after standing a trial, to persons who served a prison sentence which was subsequently reduced or quashed and also to those who were arrested or detained as a result of an erroneous or unlawful act, or whose detention on remand had exceeded the term of imprisonment to which they were sentenced.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

69 . The Commission declared admissible the applicant’s complaints that:

- he was subjected to treatment incompatible with Article 3 of the Convention;

- he was not able to take proceedings by which the lawfulness of his detention would be decided speedily as required by Article 5 para. 4 of the Convention;

- his right to compensation as guaranteed by Article 5 para. 5 of the Convention was not respected;

- his correspondence with the Commission was interfered with contrary to the requirements of Article 8 of the Convention; and

- that his other correspondence was also interfered with in violation of Article 8 of the Convention.

B. Points at issue

70 . Accordingly, the points at issue in the present case are whether or not there has been a violation of:

- Article 3 of the Convention as regards the treatment to which the applicant was subjected during his arrest and subsequent detention;

- Article 5 para. 4 of the Convention as regards the alleged absence of a speedy review of the lawfulness of the applicant’s detention;

- Article 5 para. 5 of the Convention as regards the alleged impossibility of obtaining  compensation in this respect;

- Article 8 of the Convention as regards the interference with the applicant’s correspondence with the Commission; and

- Article 8 of the Convention as regards the monitoring of the applicant’s other correspondence.

C. As regards Article 3 of the Convention

71 . Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

72 . As regards the injury which he suffered during his arrest on 8 September 1995, the applicant submits that two men held him tight and pushed the upper part of his body against the bonnet of the car and that four other men kept hitting his head with cudgels and fists despite his standing still and shouting in both German and English that he was not resisting.

73 . The Government rely on the conclusion reached by the Commission of the Public Safety Administration in Slovenj Gradec according to which the police officers arresting the applicant acted in accordance with Section 154 of the Internal Affairs Act of 1980 and with Sections 9 and 12 of the Instruction on Use of Coercive Measures of 1981.  It is argued that while he was being pushed to the ground for the purpose of restraining him, the applicant accidentally hit his head on the bumper of a nearby car thereby sustaining his injury. The Government conclude that the use of physical force during the applicant’s arrest was legitimate irrespective of its consequences.

74 . Thus the Commission is confronted with two different versions of the facts as regards the events resulting in the applicant’s injury.  However, it is not disputed between the parties that the injury was of a serious nature, namely a double fracture of the jaw and facial contusions, and that the applicant suffered it while at least four police officers were restraining him by means of physical force.

75 . In the Commission’s view, any recourse to physical force while arresting a person resulting in a serious injury of the latter is in principle an infringement of the right set forth in Article 3 of the Convention unless it has been made strictly necessary by the conduct of the person being deprived of his or her liberty  (see, mutatis mutandis, Eur. Court HR, Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 38).  In similar cases, it is incumbent on the respondent Government to provide a plausible explanation of how the injuries were caused and to produce appropriate evidence showing facts which cast doubt on the account given by the injured person.

76 . Despite several explicit requests the Commission had addressed to the respondent Government to this effect, the latter in no way substantiated their submission that the applicant’s injuries were accidentally sustained.  The Commission finds the Government’s explanation unconvincing and considers that even if the applicant had accidentally hit his head on the bumper of a car, this could not provide a sufficient explanation of the injuries sustained by him.  As a result, the Commission has before it no evidence which would permit it to conclude that the use of physical force resulting in a serious injury of the applicant was made strictly necessary by his conduct.

77 . The Commission also notes that the applicant was first brought before a doctor on the day after he had suffered the injury which, as stated above, was of a serious nature.  In the Commission’s view, this delay, for which the respondent Government provided no explanation, had undoubtedly increased both the physical and emotional suffering the applicant had experienced  as a result of his injury.  

78 . In these circumstances, the Commission cannot but find, on the basis of all the material before it, that during and immediately after his arrest the applicant was subjected to  inhuman and degrading treatment within the meaning of Article 3 of the Convention.  In view of this conclusion, the Commission does not consider it necessary to examine the applicant’s complaints of other forms of ill-treatment during his subsequent detention.

CONCLUSION

79 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 3 of the Convention.

D. As regards Article 5 para.  4 of the Convention

80 . Article 5 para. 4 of the Convention provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

81 . The applicant complains that at the initial stage of his detention on remand he was not able to have the lawfulness of his detention reviewed speedily by a court.

82 . The Government submitted no observations on the merits of this part of the application.

83 . The Commission recalls that when examining whether there has been compliance with the requirement that a decision be given “speedily”, it must have regard to the circumstances of each case (see, e.g., Eur. Court HR, E. v. Norway judgment of 29 August 1990, Series A no. 181-A, pp. 27-28, para. 64).

84 . The documents before the Commission indicate that the applicant was assisted by a lawyer as from 10 September 1995.  He lodged his first request for release, through his lawyer, on 3 October 1995.  The Slovenj Gradec Regional Court dismissed it on 26 October 1995, i.e. after twenty-three days.

85 . Since this request was submitted less than a month after the applicant had been remanded in custody, the Commission considers that it called for special diligence on the part of the domestic authorities.  In the Commission’s view, the period under consideration is difficult to reconcile, in the circumstances of the case, with the requirement that a decision be given “speedily”. In this context, the Commission considers it irrelevant that the Regional Court extended the applicant’s detention on remand and the Maribor Higher Court dismissed the applicant’s complaint against this decision while the proceedings concerning the applicant’s request for release of 3 October 1995 were pending. Furthermore, the Commission finds no special circumstances which would justify the length of the proceedings in question.

CONCLUSION

86 . The Commission concludes, by 24 votes to 3, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

E. As regards Article 5 para. 5 of the Convention

87 . The Commission also examined the compliance with the applicant’s right under Article 5 para. 5 of the Convention which provides as follows:

“ Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

88 . The applicant complains that his right to compensation under Article 5 para. 5 has not been respected.

89 . The Government submitted no observations on this part of the application.

90 . The Commission has found a violation of the applicant’s right under Article 5 § 4 of the Convention (see para. 86 above). The Commission further notes, with reference to Article 26 of the Constitution taken together with Article 542 (1) of the Code of Criminal Procedure, that with the exception of the situations which are not relevant in the present case, compensation for damage is only payable if the deprivation of liberty was the consequence of an unlawful or erroneous act. However, the Commission has before it no indication that the way in which the Slovenj Gradec Regional Court proceeded with the relevant applicant’s request for release was unlawful or erroneous in terms of Slovenian law.

91 . Accordingly, effective enjoyment of the applicant’s right guaranteed by Article 5 para. 5 of the Convention has not been ensured with a sufficient degree of certainty (see Eur. Court HR, Sakik and Others v. Turkey judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2626, para. 60, with further reference).

CONCLUSION

92 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 5 of the Convention.

F. As regards Article 8 of the Convention

93 . Article 8 of the Convention provides, so far as relevant, as follows:

“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 ... for the prevention of disorder or crime...”

94 . The applicant submits that while he was detained, the Slovenian authorities monitored his correspondence including the letters sent to him by the Commission, and that his correspondence was transmitted with delays amounting to three or four weeks.  The applicant concludes that it was therefore not possible for him to carry out a free and unhindered exchange of ideas by correspondence, and that this interference had no reasonable justification.

95 . The Government contend that the monitoring of the applicant’s correspondence was carried out in accordance with Section 211 of the Code of Criminal Procedure.  As to delays in transmitting the applicant’s correspondence, the Government submit that they were due to the fact that the applicant was detained in the Maribor prison whereas his correspondence was monitored by a judge of the Slovenj Gradec Regional Court which then dealt with the case.

a) As regards screening of the applicant’s correspondence with the Commission

96 . The Commission notes that it is not disputed between the parties that in the present case there has been an interference with the applicant’s right to respect for his correspondence as a result of the opening of his correspondence with the Commission by the Slovenian authorities.

97 . Such an interference constitutes a violation of Article 8 unless it was “in accordance with the law”, had an aim that is legitimate under Article 8 para. 2 and was “necessary in a democratic society” for the aforesaid aim (see, e.g.,  Eur. Court HR, Margareta and Roger Andersson v. Sweden judgment of 25 February 1992, Series A no. 226-A, p. 25, para. 73).

98 . The applicant’s correspondence was controlled pursuant to Section 211 (3) of the Code of Criminal Procedure.  Accordingly, the interference complained of was “in accordance with the law” and the Commission sees no reason to doubt that the control of the applicant’s correspondence pursued the legitimate aim of “the prevention of disorder or crime” within the meaning of Article 8 para. 2 of the Convention.

99 . As to the necessity of the interference, it must be recalled that it is of importance to respect the confidentiality of mail from and to the Commission (see Eur. Cour HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233, p. 22, para. 62).

100 . In the present case the Commission has before it no information that would permit it to conclude that there existed compelling reasons for the control of the relevant correspondence.  Accordingly, the opening of the letters between the Commission and the applicant was not “necessary in a democratic society” within the meaning of Article 8 para. 2 of the Convention.  In view of this finding, the Commission does not consider it necessary to examine the applicant’s complaint about delays in transmitting his correspondence from and to the Commission.

CONCLUSION

101 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention as a result of the screening of the applicant’s correspondence with the Commission.

b) As regards screening of the applicant’s other correspondence

102 . As to the monitoring of the applicant’s other correspondence, the Commission notes that it had a legal basis, namely Section 211 paras. (3) and (4) of the Code of Criminal Procedure. It is not disputed between the parties that it was “in accordance with the law” for the purposes of Article 8 para. 2 of the Convention. The Commission further recalls that screening of prisoners’ correspondence is not in itself contrary to Article 8 of the Convention (see No. 9659/82, Dec. 6.3.85, D.R. 41, pp. 91, 93), and in the present case there is no indication that the applicant’s correspondence was stopped or tampered with.

103 . The Commission further considers that the applicant’s general complaint about delays in transmitting his other correspondence, to the extent that it has been substantiated, does not disclose any appearance of a violation of the applicant’s right to respect for his correspondence as guaranteed by Article 8 of the Convention.

104 . In these circumstances, the Commission is of the opinion that the monitoring of the applicant’s other correspondence can be regarded as having been compatible with the applicant’s right under Article 8 of the Convention.

CONCLUSION

105 . The Commission concludes, unanimously, that in the present case there has been no violation of Article 8 of the Convention as regards the screening of the applicant’s other correspondence.

G. Recapitulation

106 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 3 of the Convention (para. 79).

107 . The Commission concludes, by 24 votes to 3, that in the present case there has been a violation of Article 5 para. 4 of the Convention (para. 86).

108 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 5 of the Convention (para. 92).

109 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention as a result of the screening of the applicant’s correspondence with the Commission (para. 101).

110 . The Commission concludes, unanimously, that in the present case there has been no violation of Article 8 of the Convention as regards the screening of the applicant’s other correspondence (para. 105).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on    1 November 1998.