W. v. the UNITED KINGDOM
Doc ref: 16244/90 • ECHR ID: 001-45598
Document date: May 4, 1993
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 16244/90
W.
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 4 May 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-19). . . . . . . . . . . . . . . . . . . . .1-2
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-14) . . . . . . . . . . . . . . . . . .1-2
C. The present Report
(paras. 15-19). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 20-40) . . . . . . . . . . . . . . . . . . . .3-6
A. Particular circumstances of the case
(paras. 20-29). . . . . . . . . . . . . . . . . .3-4
B. Relevant domestic law and practice
(paras. 30-40). . . . . . . . . . . . . . . . . .4-6
III. OPINION OF THE COMMISSION
(paras. 41-70) . . . . . . . . . . . . . . . . . . . 7-12
A. Complaints declared admissible
(para. 41). . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 42). . . . . . . . . . . . . . . . . . . . .7
C. Article 8 of the Convention
(paras. 43-58). . . . . . . . . . . . . . . . . 7-10
1. Letter of 27 October 1988
(paras. 45-51) . . . . . . . . . . . . . . .8-9
2. Letter of 3 February 1989
(paras. 52-58) . . . . . . . . . . . . . . 9-10
D. Article 13 of the Convention
(paras. 59-67). . . . . . . . . . . . . . . . .10-11
RECAPITULATION
(paras. 68-70) . . . . . . . . . . . . . . . . . . . . 12
PARTIALLY DISSENTING OPINION OF MM. S. TRECHSEL, E. BUSUTTIL,
A. WEITZEL, H.G. SCHERMERS, MRS. G.H. THUNE, MM. C.L.
ROZAKIS, L. LOUCAIDES AND G.B. REFFI. . . . . . . . . . . . 13
APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . 14
APPENDIX II PARTIAL DECISION AS TO ADMISSIBILITY . . .15-25
APPENDIX III FINAL DECISION AS TO ADMISSIBILITY . . . .26-30
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, W., is a British citizen born in 1952 and
currently serving a sentence in HM Prison Perth. He is represented by
Messrs Drummond Miller, solicitors practising in Edinburgh.
3. The application is directed against the United Kingdom. The
Government are represented by their Agent, Mrs. Audrey Glover of the
Foreign and Commonwealth Office.
4. The case concerns the applicant's complaints that two of his
letters were stopped by the prison authorities and that he has no
effective remedy for his complaints. It raises issues under Articles 8
and 13 of the Convention.
B. The proceedings
5. The application was introduced on 9 January 1990 and registered
on 26 February 1990.
6. On 11 July 1990, the Rapporteur requested the Government to
submit information on the applicant's complaints concerning
interference with his correspondence.
7. The Government submitted their reply on 10 September 1990 and
15 April 1991. The applicant submitted his comments in reply on
30 December 1990 and 9 May 1991.
8. On 12 December 1991, the Commission decided to communicate the
application to the respondent Government for their observations on the
admissibility and merits of the applicant's complaints concerning two
of his letters. It declared the rest of the application inadmissible.
9. The Government submitted their written observations on
9 March 1992 and the applicant his written observations in reply on
28 May 1992.
10. The Commission granted the applicant legal aid on 10 July 1992.
11. On 12 October 1992, the Commission declared the remainder of the
application admissible.
12. The parties were then invited to submit any additional
observations on the merits of the application.
13. The applicant made a further brief submission by letter dated
9 March 1993.
14. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions, the
Commission now finds that there is no basis on which a friendly
settlement can be effected.
C. The present Report
15. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
G.B. REFFI
16. The text of the Report was adopted by the Commission on
4 May 1993 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
17. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
18. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decisions on the admissibility of the application as APPENDICES II and
III.
19. 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. Particular circumstances of the case
20. On 27 November 1985, the applicant was convicted of armed robbery
and sentenced to 20 years' imprisonment. His appeal against conviction
was dismissed on 21 November 1986, but his sentence reduced to
14 years.
21. The applicant introduced Application No. 13081/87 before the
Commission on 16 May 1987. That application, which concerned various
complaints concerning his arrest and trial, was declared inadmissible
on 14 December 1988.
22. The applicant alleges that since he started serving his sentence
his correspondence has been interfered with.
23. On or about 27 October 1988, the applicant gave in to be posted
a letter to the Chief Constable of Strathclyde. The letter was opened
and read. The applicant states that he was questioned as to the
contents which, inter alia, reported a prison officer for theft. The
applicant alleged that he had given a prison officer £6 on one occasion
to buy him a tape from a record shop and three blank tapes to record
music for him on another. He alleged that the prison officer kept
these items and denied that they had been given to him.
24. The Prison Governor forwarded the letter on 8 November 1988 with
a letter attached in which she gave details of the internal prison
enquiry, to the effect that the prison officer alleged to have stolen
the applicant's property denied the allegation emphatically. The
Government submit that the Governor had already commenced an
investigation into the matter before the letter was stopped and that
the letter was delayed only because there had been a recent disturbance
in the prison and the Governor did not have the time to deal with the
matter immediately. Following an incident at the prison six months
earlier, when the police had been called in to deal with an allegation
of theft which apparently was based on the conduct of a prison officer
who tasted some left-over curry, the Governor had made an informal
agreement with the police to accompany any similar complaint in future
by an explanation of the broader context and the circumstances
surrounding the complaint. The purpose of the arrangement was to avoid
the inappropriate deployment of police resources.
25. By letter dated 6 December 1988, the police asked the Governor
to inform the applicant that his complaints were being investigated.
It appears from that letter that the applicant had been interviewed by
the police on 15 November 1988. By a telephone message from the police
on 27 January 1989, the applicant was informed that the Procurator
Fiscal had decided to take no further action in the matter.
26. The applicant later instituted civil proceedings against the
prison officer in the Sheriff Court. The Sheriff Court dismissed his
case on 23 June 1989. In the case stated for appeal to the Sheriff
Principal, the Sheriff referred to the fact, as admitted or proved,
that the applicant's letter of 27 October 1988 had been intercepted by
the prison authorities and as a result, an internal investigation
carried out by a senior prison officer before the letter was sent on
8 November 1988. The applicant apparently did not pursue the appeal.
27. The applicant gave in to be posted a letter dated
3 February 1989 to Councillor Murray, a member of the Scottish Labour
Party's working party on the penal system. It contained the description
of an alleged incident in which prison officers assaulted a prisoner
in the cell above him, following which other prisoners smashed their
cells in protest and were in turn assaulted by prison staff. One of the
officers was named. The letter was stopped and returned to the
applicant with the instruction to re-write the first page. The re-
written letter was sent out without problem.
28. By petition dated 3 October 1989 to the Secretary of State, the
applicant complained, inter alia, of interference with the above
letters.
29. By letter dated 15 November 1989, the Secretary of State replied
as follows:
- concerning the letter to the Chief Constable: that there was
no evidence to substantiate the applicant's allegations;
- concerning the letter to Councillor Murray: that the prison
authorities had no knowledge of these matters.
B. Relevant domestic law and practice
General regime
30. The system of prisons in Scotland is governed by the Prisons
(Scotland) Act 1989 (which Act consolidated certain enactments relating
to prisons and other institutions for offenders in Scotland).
Section 39(1) of the Act provides that:
"The Secretary of State may make rules for the regulation and
management of prisons and for the classification, treatment,
employments, discipline and control of persons required to be
detained therein."
31. In exercise of his powers to make such rules the Secretary of
State had made the Prison (Scotland) Rules 1952 (S.I. 1952/565) ("the
Rules").
32. To supplement these statutory provisions the Secretary of State
issues advice and instructions to the Governors of prisons by way of
administrative Orders, collectively known as the Prison (Scotland)
Standing Orders, and administrative circulars.
Correspondence
33. Communications between prisoners and others are governed
principally by Rule 74 of the Rules. Rule 74(4) provides that every
letter to or from a prisoner shall be read by the Governor or by an
officer deputed by him for that purpose. The only exceptions to this
general rule are those contained in Rule 50(4), i.e. a letter of
request or complaint to the Secretary of State or the Visiting
Committee which may not be opened by the Governor if it is sealed by
the prisoner.
34. These Rules are supplemented by Standing Order M, which deals in
detail with communications between prisoners and others. Copies of
this Standing Order are available to prisoners and the public.
35. For the purposes of examination and censorship Standing Order Ma6
divides correspondence, both incoming and outgoing, into 5 groups. The
applicant's letters in this case fall into category (e), that is
general correspondence with other individuals. Under Standing Order
Ma7 such correspondence must not contain any of the material specified
in that Standing Order.
36. Standing Order Ma7(k)(iv) provides that general correspondence
in the general category (e) mentioned above may not contain material
which is intended for publication or for use by radio or television (or
which, if sent, would be likely to be published or broadcast) if it
refers to individual inmates or members of staff in such a way as they
might be identified. The prohibition of the inclusion in general
correspondence of material of this nature is designed to protect the
rights and interests of the individuals who have been identified.
Remedies
37. The following are the principal remedies available to an
aggrieved prisoner:
(i) internal channels of complaint,
(ii) complaint to the Parliamentary Commissioner for
Administration,
(iii) judicial remedies.
i. Internal channels of complaint
38. A prisoner who is aggrieved by a decision may complain to a
prison Governor, the Visiting Committee, a visiting officer of the
Secretary of State, or he may petition to the Secretary of State
himself. The prisoner may raise his complaint through any or all of
these channels and, if more than one is utilised, in such sequence as
he wishes.
(a) The Visiting Committee
In terms of Rule 194(1) the Visiting Committee are required to
hear and investigate any application or complaint which any
prisoner may desire to make to them; and, if necessary, report
the same, with their opinion, to the Secretary of State. The
Visiting Committee will in practice draw to a Governor's
attention any decision complained of which is inconsistent with
the Rules and the Standing Orders; or the Committee may report
on the matter to the Secretary of State. Although the Visiting
Committee's powers are advisory in character, its advice is taken
seriously and implemented wherever possible.
(b) Petitions to the Secretary of State
Prisoners have the right to petition the Secretary of State about
any matter, for example to seek the overruling of a decision of
local prison management of which a prisoner is aggrieved, or to
complain of prison treatment, misapplication of the Rules,
Standing Orders etc.
ii. The Parliamentary Commissioner for Administration
39. The Parliamentary Commissioner for Administration (commonly known
as the Ombudsman) has jurisdiction under the Parliamentary Commissioner
Act 1967 to investigate complaints of maladministration in Government
Departments. Such complaints may be raised with him by any member of
Parliament, and the Commissioner also considers complaints raised
directly with him by members of the public, including prisoners, and
refers these to a Member of Parliament. He must report investigations
he makes both to the Member of Parliament concerned and also to the
head of the relevant Department and may make appropriate
recommendations. He also reports periodically to Parliament on his
activities. Any departure from the statutory or administrative rules
governing regulation of prisons may amount to maladministration.
However this jurisdiction does not extend to restrictions effected
pursuant to a correct exercise of a discretion conferred by the Prison
Rules or Standing Orders.
iii. Judicial remedies
40. The exercise by the Secretary of State or the prison authorities
of their powers and duties is, in Scotland, subject to the supervisory
control of the Court of Session by way of proceedings for judicial
review. In the exercise of this jurisdiction, the Court will intervene
to ensure that the Secretary of State or the prison authorities act
lawfully and within the limits of their powers. If the Court finds
that the Secretary of State or the prison authorities have acted
without lawful powers or have exercised their powers improperly,
unreasonably or otherwise in an ultra vires manner, the court can grant
a range of remedies including the annulment of the ultra vires act and,
where appropriate, damages.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
41. The Commission declared admissible the applicant's complaints
that two of his letters were stopped by the prison authorities.
B. Points at issue
42. The issues to be determined are:
- whether the stopping by the prison authorities of the
applicant's letter of 27 October 1988 to the Chief Constable of
Strathclyde Police constituted an interference with the
applicant's right to respect for his correspondence in violation
of Article 8 (Art. 8) of the Convention;
- whether the stopping by the prison authorities of the
applicant's letter of 3 February 1989 to Councillor Murray
constituted an interference with the applicant's right to respect
for his correspondence in violation of Article 8 (Art. 8) of the
Convention;
- whether the applicant had an effective remedy for his
complaints as required by Article 13 (Art. 13) of the Convention.
C. Article 8 (Art. 8) of the Convention
43. Article 8 (Art. 8) of the Convention provides 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."
44. The Commission refers to its constant case-law that a prisoner
has the same right as a person at liberty to respect for his
correspondence, the ordinary and reasonable requirements of
imprisonment being of relevance in assessing the justification for any
interference with that right under the exceptions permitted by
Article 8 para. 2 (Art. 8-2) of the Convention. Any stopping, reading,
screening or delay of prisoners' correspondence by prison authorities,
in principle, constitutes an interference with prisoners' right to
respect for correspondence (Silver and Others v. the United Kingdom,
Comm. Report 11.10.80, Eur. Court H.R., Series B no. 51, paras. 269-271
and 423-426).
1. Letter dated 27 October 1988 to the Chief Constable of
Strathclyde Police
a) Interference
45. This letter was stopped by the prison authorities and not sent
until twelve days later on 8 November 1988.
46. This constitutes an interference with the applicant's
correspondence. The Commission must therefore examine whether this
interference was justified under the second paragraph of Article 8
(Art. 8-2), namely, whether it was "in accordance with the law" and if
so, whether it was necessary for one or more of the reasons specified
in the second paragraph.
b) Compliance with Article 8 para. 2 (Art. 8-2)
aa) "in accordance with the law"
47. The Commission has had occasion in several cases concerning
prisoners in the United Kingdom to analyse whether the Prison Rules,
supplemented by Standing Orders and applied to censor correspondence,
are in accordance with the law within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention. The Commission found that, in principle,
where censorship is specifically provided for in the Prison Rules 1964,
as amended (applicable in England and Wales), or may be said to flow
clearly from the Secretary of State's powers under Rule 33(1) of those
Rules "with a view to securing good order and discipline", such
restrictions are in accordance with the law within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention (cf. Silver and Others
Report loc. cit., paras. 281-285, 336-338, 376-377). Furthermore,
while standing orders on the censorship of correspondence did not have
the force of law, they had been made public and available to
prisoners. In the Commission's opinion, the censorship practices
contained in the relevant standing order and grounded in the legal
authority of the Prison Rules, in principle, satisfied the requirements
of the rule of law (accessibility and foreseeability), embodied in the
phrase "in accordance with the law" in Article 8 para. 2 (Art. 8-2)
(cf. Grace v. the United Kingdom, Comm. Report 15.12.88, para. 86).
48. The Commission recalls that this case concerns the Prison Rules
and Standing Order applicable in Scotland rather than England but finds
no reason to differ from the conclusions above. However the Government
have acknowledged that there was an informal and unsanctioned agreement
at the time between the prison governor and the police to accompany
allegations of the kind contained in the applicant's letter by an
explanation of the broader context. They further explain that the
resulting delay in forwarding the letter was caused by disturbances in
the prison.
49. The Commission notes that there is no provision in the relevant
rules and standing orders for the practice adopted by the prison
authority in this case. While the delay might have been an unintended
result, the informal agreement nonetheless appears to have been the
operative cause of the interference with the applicant's letter. The
Commission finds that the interference was not "in accordance with the
law" as required by the second paragraph of Article 8 (Art. 8-2).
bb) "necessary in a democratic society"
50. In light of the above finding it is unnecessary for the
Commission to examine whether the interference was also "necessary"
within the meaning of the above provision.
c) Conclusion
51. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention in respect of the
letter of 27 October 1988.
2. Letter of 3 February 1989 to Councillor Murray
a) Interference
52. This letter was returned to the applicant by the prison
authorities with instructions to re-write the first page. It contained
complaints of the conduct of prison officers, including allegations of
assault.
53. The Government state that they have been unable to verify the
reason for the letter being returned nor attribute the handwriting of
the instruction "Re-write" to any of the prison officers who might have
handled the letter. Assuming that it was stopped by a prison officer
they submit that the reason could have been that it was addressed to
a working party that had only recently been set up and whose modus
operandi might not have been publicly established. In those
circumstances it is submitted that a prison officer might have stopped
the letter under Standing Order Ma7(k)(iv) as being material likely to
be published and containing specific and serious allegations about the
conduct of one named prison officer.
54. The Commission acknowledges the Government's difficulty in
verifying the circumstances of the alleged stopping in this case. It
notes however that the Government do not systematically record
incidents of stopping of letters and censorship of their contents. In
the absence of any concrete indication to the contrary, the Commission
accepts the applicant's statement that the letter was returned by the
prison authorities with instruction to re-write. This constituting an
interference with the applicant's correspondence, the Commission must
therefore examine whether it was justified under the second paragraph
of Article 8 (Art. 8-2), namely, whether it was "in accordance with the
law" and if so, whether it was necessary for one or more of the reasons
specified in the second paragraph.
b) Compliance with Article 8 para. 2 (Art. 8-2)
aa) "in accordance with the law"
55. The Commission recalls that the page to be re-written referred
by name to a prison officer. It is therefore accepted as alleged by
the Government that it was stopped under Standing Order Ma7(k)iv.
In these circumstances the Commission finds that the interference was
in accordance with the law as required by the second paragraph of
Article 8 (Art. 8-2) of the Convention.
bb) "necessary in a democratic society"
56. The Commission recalls that the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued. In
this context, the Contracting States enjoy a margin of appreciation
(see eg. Eur. Court H.R., the Sunday Times judgment (no. 2) of
26 November 1992, Series A no. 217 para. 50).
57. The Government have put forward the legitimate aim of protecting
the right of the prison officer who had been named in the letter from
having the imputations made against him published. The applicant has
not disputed this as a constituting a legitimate aim. The Commission
further recalls that the letter was addressed to a Councillor who was
Chairman of a Labour Party Working Party on penal reform which had only
recently been set up. In these circumstances, the Commission finds that
the cautious reaction of the prison authorities regarding the
possibility of publication was not a disproportionate response.
Consequently, the resulting interference could be regarded as
"necessary in a democratic society" within the meaning of Article 8
para. 2 (Art. 8-2) of the Convention.
c) Conclusion
58. The Commission concludes, by 9 votes to 8 that there has been no
violation of Article 8 (Art. 8) of the Convention in respect of the
letter of 3 February 1989.
D. Article 13 (Art. 13) of the Convention
59. Article 13 (Art. 13) of the Convention provides that:
"Everyone whose rights and freedoms as set forth in this
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."
60. Article 13 (Art. 13) of the Convention does not, however, require
a remedy under domestic law in respect of any alleged violation of the
Convention. It only applies if an individual can be said to have an
arguable claim of a violation of the Convention (Eur. Court H.R., Boyle
and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).
61. In the present case, given the Commission's decision as to the
admissibility of the complaints, the applicant has an arguable claim
for the purposes of Article 13 (Art. 13) of the Convention.
62. The Commission must therefore examine the effectiveness of the
remedies available in respect of these complaints.
63. The Commission recalls that in the case of Silver (loc. cit.) the
Commission and the Court were of the opinion that the applicants did
not have access to effective domestic remedies, as envisaged by
Article 13 (Art. 13) of the Convention, for the alleged breaches of
their right to respect for correspondence ensured by Article 8 (Art. 8)
of the Convention. Moreover, the Commission and the Court considered
that the possible channels for prisoners' complaints, i.e. the English
courts, the Parliamentary Commissioner for Administration, the Board
of Visitors and the Home Secretary, were inadequate for the purposes
of Article 13 (Art. 13). In particular, while a petition to the
Secretary of State might be effective when a complaint was directed
against the misapplication of one of his directives, it would not be
so when the complaint concerned the validity of the directive itself
(Commission's Report, Series B no. 51, pp. 101-104, paras. 435-453;
Eur. Court H.R., Silver judgment of 25.3.83, Series A no. 61,
pp. 42-44, paras. 111-119).
64. As in the Silver case (loc. cit.), the remedies advanced by the
respondent Government are the Parliamentary Commissioner, the Board of
Visitors, the Courts and the Secretary of State. As found by both the
Commission and the Court in the Silver case, the first three do not
constitute an effective remedy in respect of this type of
correspondence complaints. Whether the Secretary of State could do so
depends on the nature of the complaint. If it concerns the application
or implementation of the prison norm, the Secretary of State provides
an effective remedy. If, on the other hand, it concerns the validity
of the norm itself, the Secretary of State cannot be considered a
sufficient remedy as required by Article 13 (Art. 13) (see also
No. 9511/81, McCallum v. the United Kingdom, Comm. Report 4.5.90,
Series A no. 183, pp. 26-28, paras. 66-72).
65. As regards the stopping of the letter of 27 October 1988, the
Commission notes that this was pursuant to an informal arrangement that
had no sanction under the prison rules and standing orders. The
Commission therefore finds that the complaint is directed against a
failure to implement the relevant directives rather than their
validity. Similarly, the complaint concerning the stopping of the
letter of 3 February 1989 is directed against the improper application
of Standing Order Ma7(k)iv rather than its general compatibility with
the Convention.
66. Accordingly the Commission finds that there was an effective
remedy available, namely, the possibility of petitioning the Secretary
of State. The Commission notes that the applicant in fact made use of
this remedy but that he was informed that one complaint was unsupported
by evidence and that the prison authorities had no knowledge of the
matters alleged in the second. In the absence of any indication or
evidence to the effect that as a matter of practice petitions to the
Secretary of State are not properly or adequately examined, the
unsuccessful use of this avenue of complaint does not deprive it of its
established character as an effective remedy for the purposes of
Article 13 (Art. 13) of the Convention.
Conclusion
67. The Commission concludes, by 15 votes to 2, that there has been
no violation of Article 13 (Art. 13) of the Convention.
RECAPITULATION
68. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention in respect of the
letter of 27 October 1988 (see para. 51 above).
69. The Commission concludes, by 9 votes to 8, that there has been
no violation of Article 8 (Art. 8) of the Convention in respect of the
letter of 3 February 1989 (see para. 58 above).
70. The Commission concludes, by 15 votes to 7, that there has been
no violation of Article 13 (Art. 13) of the Convention (see para. 67
above).
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
PARTIALLY DISSENTING OPINION OF MM. S. TRECHSEL, E. BUSUTTIL,
A. WEITZEL, H.G. SCHERMERS, MRS. G.H. THUNE,
MM. C.L. ROZAKIS, L. LOUCAIDES AND G.B. REFFI
Letter of 3 February 1989 to Councillor Murray
We regret that we cannot agree with the majority of the
Commission that there has been no violation of Article 8 of the
Convention in relation to the stopping of the above letter (see
paras. 56-58).
As regards the necessity of the interference within the meaning
of the second paragraph of Article 8, we reach a different conclusion.
The Government have put forward as the legitimate aim of the
interference the purpose of protecting the right of the prison officer
who had been named in the letter from having the imputations made
against him published. We note however that the letter was addressed
to a Councillor who was Chairman of a Working Party on penal reform.
It is not apparent to us that the contents of such letters are the
likely subject of publication or that they could reasonably be
suspected as being such. Having regard to the importance that prisoners
are able to make use of appropriate "safety valves" for their
grievances and frustrations and the normal protection offered against
publication of defamatory material by domestic law, we consider that
the stopping of the letter cannot be regarded as justified by "a
pressing social need" and, consequently, the interference cannot be
regarded as "necessary in a democratic society" within the meaning of
Article 8 para. 2 of the Convention. In conclusion there has been a
violation of Article 8 of the Convention in respect of the stopping of
the letter of 3 February 1989.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
09.01.90 Introduction of the application
26.02.90 Registration of the application
Examination of admissibility
11.07.90 Rapporteur's request to the Government for information
10.09.90 Government's reply to request
30.12.90 Applicant's response to Government
13.04.91 Government's further comments
09.05.91 Applicant's further response
12.12.91 Commission's decision to invite the parties to submit
observations on the admissibility and merits on the
applicant's complaints concerning two of his letters.
The remainder of the application was declared
inadmissible.
09.03.92 Government's observations
28.03.92 Applicant's reply
10.07.92 Commission's grant of legal aid
12.10.92 Commission's decision to declare the remainder of the
application admissible
Examination of the merits
12.10.92 Commission's deliberations on the merits
05.12.92 Consideration of the state of proceedings
04.05.93 Commission's deliberations on the merits, final votes
and adoption of the Report