Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22048/93

M. S.

against

Austria

REPORT OF THE COMMISSION

(adopted on 18 October 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-22) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-20). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 21-22). . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 23-42) . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 23). . . . . . . . . . . . . . . . . . . . .5

B. Points at issue

(para. 24). . . . . . . . . . . . . . . . . . . . .5

C. As regards Article 8 of the Convention

(paras. 25-36). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 37). . . . . . . . . . . . . . . . . . . . .6

D. As regards Article 10 of the Convention

(paras. 38-39) . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 40) . . . . . . . . . . . . . . . . . . . .7

E. Recapitulation

(paras. 41-42). . . . . . . . . . . . . . . . . . .7

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .8

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 an Austrian citizen born in 1938. He is

detained at Garsten prison, where he is serving several prison

sentences. He was represented before the Commission by

Mr. J. Lindlbauer, lawyer, of Enns.

3. The application is directed against Austria. The respondent

Government were represented by their agent, Ambassador F. Cede, head

of the International Law Department of the Federal Ministry for Foreign

Affairs, Vienna.

4. The case as declared admissible concerns interference with the

applicant's prison correspondence. The applicant invokes Articles 8

and 10 of the Convention.

B. The proceedings

5. The application was introduced on 31 January 1993 and registered

on 1 June 1993.

6. On 2 March 1994 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 the admissibility and merits of the

complaint made under Article 8 of the Convention.

7. The Government's observations were submitted on 17 June 1994

after an extension of the time-limit fixed for this purpose. The

applicant replied on 17 July 1994. On 6 September 1994, the Commission

granted the applicant legal aid for the representation of his case.

8. On 11 January 1995 the Commission declared admissible the

applicant's complaint concerning interference with his correspondence.

It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 26 January 1995 and they were invited to submit such

further information or observations on the merits as they wished. No

such observations were submitted.

10. After declaring the case admissible, the Commission, acting in

accordance with 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

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 18 October 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to 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.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. 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

16. The applicant requested permission to correspond with a former

prisoner, a Mr. H., pursuant to Section 86 of the Execution of

Sentences Act (Strafvollzuggesetz) for such correspondence. The prison

Governor refused permission on 12 March 1992. The applicant's

complaint to the Minister of Justice was refused on 14 September 1992.

The applicant made a constitutional complaint to the Constitutional

Court (Verfassungsgerichtshof) and an administrative complaint to the

Administrative Court (Verwaltungsgerichtshof).

17. The Constitutional Court refused legal aid and declined to deal

with the applicant's constitutional complaint on 30 November 1992. It

held that, to the extent that questions of constitutional law were

involved, the complaint had no sufficient prospect of success. As the

issue was not one which was excluded from the jurisdiction of the

Administrative Court, the Court was able to decline to deal with the

case pursuant to Article 144 para. 2 of the Federal Constitutional Law

(Bundesverfassungsgesetz).

18. On 9 September 1993 the Administrative Court, which had granted

legal aid on 29 September 1992, dismissed the applicant's

administrative complaint. It recalled the wording of Section 86 (3)

of the Execution of Sentences Act, and noted that the administrative

authorities had not assumed any danger to the security or order of the

institution. If the administrative authorities were therefore right

to see no expectation of a positive influence on the applicant from the

correspondence with Mr. H., the fact that security and order were not

at risk was irrelevant.

19. The Administrative Court rejected the applicant's argument that

he should be allowed to correspond unless there were reasons to the

contrary, as not complying with the wording of Section 86 (3). The

Administrative Court found that the administrative authorities had been

right not to permit the correspondence with Mr. H. The Administrative

Court also refused the applicant's request for a hearing.

20. Section 86 of the Execution of Sentences Act has since been

amended.

B. Relevant domestic law

21. Section 86 (3) of the Execution of Sentences Act provided at the

relevant time:

"Notwithstanding the provisions of Sections 88 and 96, written

correspondence with persons other than those set out in sub-

section 2 [which relates to correspondence with relatives and

guardians] shall only be permitted on the request of the prisoner

and only to the extent that it can be expected that the

correspondence will have a positive influence on the

prisoner,will further his subsequent development or otherwise be

of use for him, and that there is no fear that the security and

order of the institution will be endangered by the

correspondence".

22. An amendment to Section 86 came into force on 1 January 1994.

The section now provides:

"(1) Subject to the provisions of this Act, prisoners are

allowed to be visited by and have written correspondence with and

telephone calls from other persons and agencies ...

(2) However, written correspondence, telephone calls and visits

shall be denied if there is reason to fear that the security and

order of the institution will be endangered or that they will

have a negative influence on the prisoner ..."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

23. The Commission has declared admissible the applicant's complaint

that the refusal of permission to correspond with a former prisoner was

not justified.

B. Points at issue

24. The issues to be determined are

- whether there has been a violation of Article 8 (Art. 8) of the

Convention, and

_ whether there has been a violation of Article 10 (Art. 10) of the

Convention.

C. As regards Article 8 (Art. 8) of the Convention

25. Article 8 (Art. 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 ...".

26. The applicant considers that there was no reason to restrict his

correspondence with Mr. H.

27. The Government submit that the interference with the applicant's

correspondence was in accordance with the law in that it was prescribed

by Section 86 (3) of the Execution of Sentences Act, and that it served

the purpose of preventing disorder or crime. They further submit that

restrictions on prisoners' correspondence are necessary in the interest

of the protection of society and the prevention of crime. They point

out that the applicant had been convicted twice of inciting a person

to give false evidence, and that other proceedings were pending in

connection with incitement to give false evidence. They see a risk

that the applicant would induce Mr. H. to give such evidence. They

consider that further contact with Mr. H. would not necessarily further

the applicant's rehabilitation, and conclude that the interference was

necessary for the protection of society at large as well as

proportionate to the aim pursued.

28. The Commission finds that the refusal of permission for the

applicant to correspond with Mr. H. was an interference with his right

to respect for his correspondence, and that that interference was in

accordance with the law and had as its aim the prevention of disorder

or crime.

29. The Commission must determine whether the interference based on

Section 86 (3) of the Execution of Sentences Act was "necessary in a

democratic society" within the meaning of Article 8 (Art. 8) of the

Convention.

30. The Commission found that the prior ventilation rule as applied

in the United Kingdom at the time was not necessary in a democratic

society in the case of Silver (No. 5967/72 and others, Comm. Rep. 11.

10. 80, Eur. Court H.R., Series B no. 51, p. 78-79, paras. 302, 303,

306). The Commission's findings in that case were, in this respect,

not challenged by the United Kingdom Government and were adopted by the

European Court of Human Rights (Silver and others judgment of

25 March 1983, Series A no. 61, p. 38, para. 99).

31. The rules in the present case required a form of prior

authorisation. They assumed that the prisoner had lost his right to

correspond with whomever he wished, and that it was for the authorities

to grant permission to correspond with individuals if the individual

could show that the correspondence would be beneficial and if there

were no security reasons militating against correspondence.

32. The Commission finds that such an approach runs counter to the

fundamental principle that a prisoner retains the right to correspond

with the outside world save to the extent that restrictions on the

right are indeed necessary within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention (see, generally in this connection, Eur.

Court H.R., Golder judgment of 7 May 1974, Series A no. 18, pp. 20-22,

paras. 41-45).

33. The way in which the rules were applied in the present case

illustrates the effects of the legislation: the Administrative Court

accepted that there were no security reasons for preventing the

applicant from corresponding with Mr. H., but nevertheless found

against the applicant as there was no positive influence to be expected

from the proposed correspondence.

34. In the course of the proceedings before the Commission the

Government have given reasons some of which may have been capable of

justifying interferences with the applicant's correspondence with

Mr. H. These reasons were not, however, adduced in the domestic

proceedings, and the Commission finds that the absence of reasons was,

in itself, not compatible with the requirements of Article 8 of the

Convention in the present case (see, in the context of Article 10 of

the Convention, the requirement for "relevant and sufficient" reasons

to be given by the national authorities, Eur. Court H.R., Sunday Times

(No. 2) judgment of 26 November 1991, Series A no. 217, p. 29

para. 50(d)).

35. Finally, the Commission notes that the domestic rules on

prisoner's correspondence have now been amended to provide for the

right to correspond unless there are specified reasons to the contrary.

This change in the rules is to be welcomed, but does not affect the

present case as the Administrative Court took its decision on the basis

of the earlier rules, and did so before the new rules came into force.

36. The Commission finds that the interference with the applicant's

right to respect for his correspondence was not "necessary in a

democratic society".

CONCLUSION

37. The Commission concludes, by 13 votes to 1, that in the present

case there has been a violation of Article 8 of the Convention.

D. As regards Article 10 of the Convention

38. The applicant has also complained that the refusal to let him

correspond with Mr. H. constitutes a violation of Article 10 of the

Convention, which guarantees freedom of expression.

39. In its examination of the applicant's allegations under Article 8

of the Convention, the Commission has dealt with the element of freedom

of expression through correspondence. The Commission considers that

no other separate issues arise under Article 10 of the Convention (see,

for example, Schönenberger and Durmaz judgment of 20 June 1988, Series

A no. 137, p. 14, para, 31, referring back to Comm. Rep. 12.12.86,

p. 23, para. 71).

CONCLUSION

40. The Commission concludes, unanimously, that no separate issue

arises under Article 10 of the Convention.

E. Recapitulation

41. The Commission concludes, by 13 votes to 1, that in the present

case there has been a violation of Article 8 of the Convention

(para. 37).

42. The Commission concludes, unanimously, that no separate issue

arises under Article 10 of the Convention (para. 40).

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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M.S. v. AUSTRIA

M.S. v. AUSTRIA

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