Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 22686/93

Walter Stürm

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 17 May 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 - 34) . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16 - 33). . . . . . . . . . . . . . . . . .3

a) Applicant's correspondence

(paras. 16 - 24) . . . . . . . . . . . . . . .3

b) Proceedings before the Cantonal Court

of the Canton of Valais

(paras. 25 - 26) . . . . . . . . . . . . . . .4

c) Proceedings before the Federal Court

(paras. 27 - 33) . . . . . . . . . . . . . . .4

B. Relevant domestic law

(para. 34). . . . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 35 - 67) . . . . . . . . . . . . . . . . . . . .6

A. Complaints declared admissible

(para. 35). . . . . . . . . . . . . . . . . . . . .6

B. Points at issue

(para. 36). . . . . . . . . . . . . . . . . . . . .6

C. Article 8 of the Convention

(paras. 37 - 61) . . . . . . . . . . . . . . . . .6

a) Interference with the applicant's rights

under Article 8 para. 1 of the Convention

(paras. 38 - 39) . . . . . . . . . . . . . . .6

b) Justification of the interference under

Article 8 para. 2 of the Convention

(paras. 40 - 61) . . . . . . . . . . . . . . .6

TABLE OF CONTENTS

Page

CONCLUSION

(para. 62). . . . . . . . . . . . . . . . . . . . .9

D. Article 10 of the Convention

(paras. 63 - 64). . . . . . . . . . . . . . . . . .9

CONCLUSION

(para. 65). . . . . . . . . . . . . . . . . . . . .9

E. Recapitulation

(paras. 66 - 67). . . . . . . . . . . . . . . . . 10

DISSENTING OPINION OF Mr. G. JÖRUNDSSON

JOINED BY MM. J.-C. SOYER and D. SVÁBY. . . . . . . . . . . 11

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 12

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 13

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, a Swiss citizen born in 1942, is currently

detained at Brig prison in Switzerland. He is represented before the

Commission by Mr. J. Lob, a lawyer practising in Lausanne.

3. The application is directed against Switzerland. The respondent

Government are represented by their Deputy Agent, Mr. Ph. Boillat, Head

of the European Law and International Affairs Section of the Federal

Office of Justice.

4. The case concerns the applicant's complaints under Articles 8 and

10 of the Convention that the Swiss authorities did not forward a

letter which he had written while remanded in custody.

B. The proceedings

5. The application was introduced on 24 August 1993 and registered

on 28 September 1993.

6. On 7 April 1994 the Commission (Second 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 17 June 1994.

The applicant replied on 12 July 1994.

8. On 30 November 1994 the Commission (Second Chamber) declared the

application admissible.

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

to the parties on 22 December 1994 and they were invited to submit

further observations on the merits of the case. No 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 (Second

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

deliberations and votes, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

12. The text of this Report was adopted on 17 May 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. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

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

a) Applicant's correspondence

16. Criminal proceedings are pending against the applicant on account

of alleged theft and robbery. Since 1990 he has been detained on

remand in various prisons in Switzerland.

17. In 1992 the applicant went on a hunger strike whereupon he was

temporarily detained in a security cell at a Geneva hospital. A radio

reporter of Radio DRS, the national radio station for German and

Romansch Switzerland (Radio der deutschen und der rätoromanischen

Schweiz), sent a letter to him with twelve questions and a cassette for

a tape-recorder. The reporter explained that he had been refused

permission to interview the applicant personally for which reason he

requested him to reply to the questions on tape; the answers would be

used for a radio interview.

18. On 29 July 1992 P., the investigating judge of the Ering/Gundis

Districts at Sion/Sitten in the Canton of Valais, decided to withhold

the cassette, while forwarding the letter and the questions.

19. The applicant replied to the questions in a letter to the radio

reporter which the investigating judge passed on. The applicant

further filed a complaint with the Cantonal Court (Kantonsgericht) of

the Canton of Valais that he had not received the cassette.

20. On 24 July 1992 the applicant sent a further letter to the editor

of the Zurich weekly newspaper W. in which he stated, with reference

to the investigating judge, that "if the nilper (sic) in Sitten

considers that with these mean tricks he can get me to give in, he is

out of his mind, but that he is in any case" ("wenn der Nilper

in Sitten denkt, er könne mich durch derartige Schikanen klein kriegen,

dann ist der falsch gewickelt, aber das ist er ja auf jeden Fall").

The letter also stated inter alia that P. had "pinched" ("geklaut") the

annex of another letter.

21. On 31 July 1992 the investigating judge informed the applicant

that he would not forward the letter of 24 July 1992 on account of the

indecent and defamatory statements therein. The applicant appealed

against this decision to the Cantonal Court of the Canton of Valais.

22. On 27 July 1992 the applicant wrote to Ms. S. of Amnesty

International, complaining inter alia of the conditions of detention

on remand. The letter stated inter alia that "for me, persons like the

investigating judge P. are therefore nothing else than desk murderers

who only differ from an Adolf Eichmann in the number of their victims"

("Für mich sind deshalb Leute wie der Untersuchungsrichter P. nichts

anderes als Schreibtischmörder, die sich von einem Adolf Eichmann nur

durch die Anzahl der Opfer unterscheiden.").

23. The letter to Ms. S. continued that "my stay in this torture hole

only lasted a few weeks which nevertheless sufficed to understand that

the pig was not M. who wrongly incriminated me"

("dauerte mein Aufenthalt in diesem Folterloch nur einige Wochen, die

aber genügten, um zu begreifen, dass das Schwein nicht der mich

fälschlicherweise belastende M. war"). The applicant further wrote

that he had complained about the decision of the investigating judge

who, rather than forwarding a letter of the applicant, had put it in

the waste paper basket.

24. On 31 July 1992 the investigating judge withheld the letter of

27 July 1992 as it contained indecent and defamatory remarks.

b) Proceedings before the Cantonal Court of the Canton of

Valais

25. On 2 October 1992 the Cantonal Court of the Canton of Valais

dismissed the applicant's appeals against the various decisions of the

investigating judge. The Court fined him 80 SFr for filing an abusive

appeal and ordered him to pay costs of the proceedings and the decision

amounting to 74.60 SFr.

26. The Cantonal Court found inter alia that the investigating judge

had correctly withheld the radio cassette in order to maintain order

in prison and not to jeopardise the purpose of detention. The

applicant had always been keen on publicity. Moreover, there was a

danger that the radio station would manipulate the cassette in such a

way as to give a one-sided view of the case.

c) Proceedings before the Federal Court

27. Against this decision the applicant filed a public law appeal

(staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht)

dismissed on 24 February 1993.

28. Insofar as the applicant complained that the Valais authorities

had breached his right to correspondence and to freedom of expression

the Court found that the decisions of the investigating judge not to

forward the letters interfered with his right under Article 8 of the

Convention to freedom of correspondence, and the decision to hold back

the cassette interfered with his right under Article 10 of the

Convention.

29. The Federal Court noted that there was a sufficient legal basis

for the interferences as they were based on Section 73 para. 1 of the

Regulations on Prison Establishments of the Canton of Valais (Reglement

über die Strafanstalten des Kantons Wallis; see below, para. 34).

30. Under Article 8 para. 2 of the Convention the Federal Court then

distinguished the contents of the various letters. In respect of the

letter to Ms. S. (see above, paras. 22 et seq.) the Court found that

the words "desk murderer" and "differ from an Adolf Eichmann in the

number of their victims" constituted a grossly defamatory statement

(massiv ehrverletzende Äusserung). The Court considered that if such

a letter was not withheld, this would soon become known in the prison,

and other prisoners would be induced to write similar letters; tensions

would arise between prisoners and prison staff and the order in prison

would be jeopardised. The right to correspondence of a prisoner on

remand was limited by the personal honour of the civil servant dealing

with the criminal case. The Court considered that it would have been

preferable if the investigating judge had either blackened the words

or given the letter back to the applicant to change the statements.

However, in such matters the authorities enjoyed a margin of

appreciation and the investigating judge had not proceeded in a

disproportionate manner.

31. The Federal Court then dealt with the applicant's letter to the

W. newspaper (see above, para. 20). In the Court's view, it was

unclear what the word "nilper" meant, and the letter could not be held

back for this reason. Similarly, if it was stated that the

investigating judge had "pinched" his letter, it could be assumed that

the applicant was in fact complaining that the letter had disappeared

and not that the investigating judge had committed theft. As a result,

this letter contained no grossly defamatory remarks, and in this

respect the Federal Court upheld the applicant's public law appeal.

32. The Court also dealt with the radio reporter's cassette (see

above, para. 17). It noted that the applicant had at that time been

in a security cell in hospital and had himself stated that it would

have been easier for him to reply orally to the questions. Moreover,

it was not clear why only oral statements and not also letters could

lead to a one-sided view of the case, as stated by the Cantonal Court.

It could be expected from Radio DRS that it would present its

transmissions in an objective manner. In respect of this cassette the

Federal Court granted the applicant's public law appeal.

33. Finally, the Court quashed the fine and the costs imposed on the

applicant by the Cantonal Court.

B. Relevant domestic law

34. According to Section 73 para. 1 of the Regulations on Prison

Establishments of the Canton of Valais (Reglement über die

Strafanstalten des Kantons Wallis), correspondence between a prisoner

on remand and the outside world has to be submitted to the control of

the investigating judge.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

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

that the authorities did not forward the letter which he had written

to Ms. S. while he was remanded in custody.

B. Points at issue

36. Accordingly, the issues to be determined are:

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

Convention;

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

Convention.

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

37. The applicant complains that the authorities did not forward the

letter to Ms. S. which he had written while he was remanded in custody.

He relies on Article 8 (Art. 8) of the Convention which states, insofar

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) Interference with the applicant's rights

under Article 8 para. 1 (Art. 8-1) of the Convention

38. The Commission considers that the Swiss authorities, when

refusing to forward the applicant's letter to Ms. S., interfered with

his right to respect for his correspondence under Article 8 para. 1

(Art. 8-1) of the Convention.

39. The Commission must therefore examine whether the interference

satisfied the conditions under Article 8 para. 2 (Art. 8-2) of the

Convention.

b) Justification of the interference under

Article 8 para. 2 (Art. 8-2) of the Convention

40. The first question is whether the interference was "in accordance

with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

41. The applicant contends that the investigating judge, when

deciding on 31 July 1992 not to forward the letter, did not mention any

legal basis, for which reason it cannot be said that the legal basis

was Section 73 para. 1 of the Regulations on Prison Establishments of

the Canton of Valais.

42. The Government submit that the legal basis for the decision not

to forward the letter was Section 73 para. 1 of the Regulations on

Prison Establishments of the Canton of Valais.

43. The Commission observes that the Federal Court, in its decision

of 24 February 1993, found that Section 73 para. 1 of the Regulations

on Prison Establishments in the Canton of Valais constituted a

sufficient legal basis for the interference at issue. According to

this provision, correspondence between a prisoner on remand and the

outside world has to be submitted to the investigating judge (see

above, para. 34). The Commission accepts therefore that the

interference was "in accordance with the law" within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention.

44. The next question to be examined under Article 8 para. 2 (Art. 8-

2) of the Convention is whether the interference had a legitimate aim.

45. The Government submit that retaining the letter served to prevent

the commission of the criminal offence of defamation.

46. The Commission notes that on 31 July 1992 the investigating judge

withheld the applicant's letter to Ms. S. as it contained indecent and

defamatory remarks (see above, para. 24). In its decision of

24 February 1993 the Federal Court found that, if the letter was not

withheld, other prisoners might be induced to write similar letters,

thereby creating tensions between prisoners and prison staff and

jeopardising prison order. The Court also found that the letter

contained defamatory remarks (see above, para. 30).

47. The Commission accepts therefore that the measure was taken "for

the prevention of disorder or crime (and) for the protection of the

rights and freedoms of others" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

48. Finally, the Commission must examine whether the interference was

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

49. The applicant submits that in the letter at issue he wrote that

"for me" P. was "a pig" and "a desk murderer", thus expressing his own

opinion. The applicant also submits that it was unnecessary to retain

the letter, as he was held in solitary confinement and had therefore

no contact with other prisoners; thus, forwarding the letter could not

have endangered prison order. He also points out that persons working

for Amnesty International do not become active in their home country.

50. The Government recall that the letter was addressed to a person

working for Amnesty International, and that the applicant is well-known

in Switzerland. It is further submitted that, had the applicant been

permitted to send letters with a defamatory content, other prisoners

would do the same and tensions with prison staff would arise. Finally,

there was no general prohibition against forwarding such letters;

indeed, in its decision of 24 February 1993, the Federal Court found

that only one of three letters written by the applicant should have

been withheld.

51. According to the Convention organs' case-law, in determining

whether an interference was "necessary in a democratic society", due

allowance must be made for the margin of appreciation that is left to

the Contracting States. However, in order to be "necessary" the

interference must correspond to a pressing social need and be

proportionate to the legitimate aim pursued (see Eur. Court H.R.,

Silver and others judgment of 25 March 1983, Series A no. 61, p. 37 et

seq., para. 97).

52. The Convention organs have moreover held that some measure of

control over prisoners' correspondence is not in itself incompatible

with the Convention, but the resulting interference must not exceed

what is required by the legitimate aim pursued (see Eur. Court H.R.,

Pfeifer and Plankl judgment of 25 February 1992, Series A no. 227,

p. 18, para. 46).

53. The Commission further recalls its case-law in the case of Silver

and others where it found that there is a need to protect a prisoner's

right to freely express himself in his correspondence. The latter may

involve the expression of his grievances or frustrations in emotional

or vehement terms, this often being an essential outlet or "safety

valve" in closed community existence. On the other hand, it may be

necessary to support prison staff morale against attacks of a

scurrilous nature. In that case, the Commission considered that a

prohibition of material aimed at holding the prison authorities up to

contempt which took no account of the addressee or the likely effect

on the material in question, constituted an overbroad restriction

contrary to Article 8 para. 2 (Art. 8-2) of the Convention (see Silver

and others v. United Kingdom, Comm. Report 11.10.80, paras. 356 et

seq., Eur. Court H.R., Series B no. 51, p. 87).

54. In the present case the Commission notes at the outset that,

other than in the Silver and others case, there was no general law in

the Canton of Valais prohibiting the forwarding of all letters which

held the authorities up to contempt. Indeed, in its decision of

24 February 1993, the Federal Court distinguished between mail

concerning the applicant which should be forwarded and other mail which

was to be withheld.

55. Turning to the content of the letter withheld, the Commission

notes that the applicant stated, inter alia, that "for , persons

like the investigating judge P. are therefore nothing else than desk

murderers who only differ from an Adolf Eichmann in the number of their

victims".

56. Against this background the Commission has examined the grounds

given by the Swiss authorities when withholding the letter.

57. The Federal Court considered in its decision of 24 February 1993

that if the letter was not withheld it would become known to other

prison inmates. The latter might then be induced to write similar

letters, thereby creating tensions between prisoners and prison staff

and jeopardising prison order (see above, para. 30).

58. In the Commission's opinion, it has not been sufficiently made

out that forwarding the applicant's letter would have resulted in

prison disorder. It is true that the applicant is well known in

Switzerland and that the letter was addressed to Ms S. of Amnesty

International. It has nevertheless not been shown how the letter,

addressed personally to Ms S., should have become public knowledge.

Moreover, even if the public learned thereof, it has not been explained

how the statements in the letter, directed at the investigating judge,

could have served to create tensions between prisoners and prison

staff.

59. The Federal Court further considered that the terms used in the

letter amounted to grossly defamatory statements, infringing on the

honour of the civil servant dealing with the case (see above,

para. 30).

60. Moreover, the Commission notes that, if the applicant - or any

other prison inmate employing such terms - was considered to have

committed the criminal offence of defamation, the defamed person could

have filed a complaint for the institution of criminal proceedings

which might have resulted in a determination of the charge by a court.

61. In the circumstances of the present case, and taking into account

the margin of appreciation which is left to Contracting States in such

matters, the Commission does not find that a fair balance was struck

between the various interests at stake. The interference with the

applicant's right to respect for his correspondence was not therefore

proportionate to the legitimate aim pursued. As a result, the

interference was not justified under Article 8 para. 2 (Art. 8-2) of

the Convention.

CONCLUSION

62. The Commission concludes, by 10 votes to 3, that there has been

a violation of Article 8 (Art. 8) of the Convention.

D. Article 10 (Art. 10) of the Convention

63. The applicant complains that the interception of his letter

written to Ms S. amounted to a violation of Article 10 (Art. 10) of the

Convention which ensures freedom of expression.

64. However, in its examination above of the applicant's allegations

under Article 8 (Art. 8) of the Convention, the Commission has already

dealt with the element of freedom of expression through correspondence.

The Commission considers that no other separate issue arises under

Article 10 (Art. 10) of the Convention (see Silver and others v. United

Kingdom, Comm. Report 11.10.80, paras. 427 et seq., Eur. Court H.R.,

Series B no. 51, p. 87).

CONCLUSION

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

arises under Article 10 (Art. 10) of the Convention.

D. Recapitulation

66. The Commission concludes, by 10 votes to 3, that there has been

a violation of Article 8 (Art. 8) of the Convention (see above,

para. 62).

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

arises under Article 10 (Art. 10) of the Convention (see above,

para. 65).

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

(Or. English)

DISSENTING OPINION OF Mr. G. JÖRUNDSSON

JOINED BY MM. J.-C. SOYER and D. SVÁBY

In the present case, contrary to the majority, I have come to the

conclusion that there has been no violation of Article 8 of the

Convention for the following reasons.

The Federal Court considered in its decision of 24 February 1993

that if the letter was not withheld it would become known to other

prison inmates. The latter might then be induced to write similar

letters, thereby creating tensions between prisoners and prison staff

and jeopardising prison order.

It should be noted that the applicant is well known in

Switzerland and, upon his hunger strike, received media coverage. As

his letter was addressed to a person working for Amnesty International,

the authorities could assume that the letter would soon become public

knowledge and that, if other prisoners heard about it, tensions would

arise in the prison establishment and disrupt the orderly conduct of

investigations. Thus, the Swiss authorities sufficiently took into

account the addressee and the likely effect of the letter.

The Federal Court further considered that the terms used in the

letter amounted to grossly defamatory statements, infringing on the

honour of the civil servant dealing with the case.

In my opinion, preventing the applicant from transmitting the

letter to a third person who might make it known to the public, and

thus preventing him from committing the offence of defamation, is a

further relevant reason for intercepting the letter.

In the circumstances of the present case, and taking into account

the margin of appreciation left to Contracting States in such matters,

I find that a fair balance was struck between the various interests at

stake. The interference with the applicant's right to respect for his

correspondence was therefore proportionate to the legitimate aim

pursued. As a result, the interference was justified under Article 8

para. 2 of the Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

24 August 1993 Introduction of application

28 September 1993 Registration of application

Examination of admissibility

7 April 1994 Commission's decision (Second Chamber) to

communicate the case to the respondent

Government and to invite the parties to

submit observations on admissibility and

merits

17 June 1994 Government's observations

12 July 1994 Applicant's observations in reply

30 November 1994 Commission's decision to declare

application admissible

Examination of the merits

22 December 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

8 April 1995 Commission's consideration of state of

proceedings

17 May 1995 Commission's deliberations on the merits,

final vote and adoption of the Report

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STÜRM v. SWITZERLAND

STÜRM v. SWITZERLAND

LEXI