Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37043/97

by Vitali SLAVGORODSKI

against Estonia

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA,

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 July 1996 by

Vitali SLAVGORODSKI against Estonia and registered on 25 July 1997

under file No. 37043/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Estonian citizen, born in 1940 in Ukraine,

and currently serving a prison sentence in Murru prison in Estonia.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. Particular circumstances of the case

The applicant was convicted of murder by judgment of the Tallinn

City Court ("Tallinna Linnakohus") on 15 November 1994, which was

confirmed by the Tallinn Court of Appeal ("Tallinna Ringkonnakohus")

on 5 January 1995. Leave to appeal to the Supreme Court ("Riigikohus")

was refused on 8 March 1995. The applicant subsequently made an attempt

to reopen the proceedings, but his application was turned down by the

Supreme Court on 19 April 1995. He then submitted a request for pardon

to the President of the Republic who refused it on 16 October 1995.

Following his conviction, the applicant is detained in Murru

prison. He claims that all his incoming and outgoing mail is opened by

the prison administration and that letters are often delivered to him

with delay. More specifically, he states that a letter from the

Commission dated 25 July 1997, which arrived in the prison on

11 August 1997, was given to him open on 14 August 1997 with a request

to sign a statement that he had been informed of its content. The

letter, which the applicant has returned to the Commission, bears Murru

prison's stamp together with a reference number and the date of

11 August 1997.

B. Relevant domestic law

Paragraph 43 of the Estonian Constitution provides:

[Translation]

"Everyone has the right to secrecy of messages transmitted by

him/her or to him/her by post, telegram, telephone or other

generally used means. Exceptions may be made on authorization by

a court, in cases and in accordance with the procedure prescribed

by law in order to prevent a criminal act or for the purpose of

establishing facts in a criminal investigation."

[Estonian]

"Igaühel on õigus tema poolt või temale posti, telegraafi,

telefoni või muul üldkasutaval teel edastavate sõnumite

saladusele. Erandeid võib kohtu loal teha kuriteo tõkestamiseks

või kriminaalmenetluses tõe väljaselgitamiseks seadusega

sätestatud juhtudel ja korras."

The treatment of prisoners is governed, inter alia, by the Code

on procedure for the execution of judgments ("Täitemenetluse

seadustik"), adopted on 21 June 1993. Its paragraph 122 provides:

[Translation]

"The inmate has a right, under the administration's supervision,

to send and receive an unlimited number of letters..."

[Estonian]

"Kinnipeetaval on õigus administratsiooni järelvalve all saata

ja saada piiramatul arvul kirju..."

The Code's provisions are supplemented by the Prison's Internal

Regulations ("Vanglaasutuse sisekorraeeskirjad"), approved by the

decree of the Minister of Justice of 2 February 1994, as amended on 30

April 1996. The relevant part of the Regulations provides as follows:

[Translation]

"Letters are sent only through the prison's administration and

are subject to censorship. Letters are dropped in a mailbox or

forwarded to the representative of the administration open."

(Point 96)

"Only letters addressed to the court, the prosecutor, the defence

lawyer and the Department of Prisons are forwarded unexamined;

they can be handed to the administration in a sealed envelope and

will be forwarded to the addressee the same or at the latest the

next work day." (Point 101)

"The inmate can submit requests orally or in writing. Written

requests are forwarded by the prison administration to the

addressee..." (Point 105)

"Written requests are registered by the prison's office and are

sent to the addressee within three days." (Point 112)

"Replies regarding the outcome of the examination of the request

are made known to the inmate within three days of their arrival;

the inmates sign for their receipt and the replies are added to

the inmate's personal file."(Point 113)

[Estonian]

"Kirju saadetakse ainult vanglaasutuse administratsiooni kaudu

tsensuuri läbides. Kirjad lastakse postkasti või antakse

administratsiooni kätte avatult." (Punkt 96)

"Kontrollimata edastatakse kohtule, prokurörile, kaitsjale ja

Vanglate Ametile adresseeritud kirjad, mida võib

administratsioonile anda suletud ümbrikus ning mis edastatakse

adressaadile samal või hiljemalt järgmisel tööpäeval."

(Punkt 101)

"Kinnipeetav võib esitada avaldusi suuliselt või kirjalikult.

Kirjalikud avaldused saadab vanglaasutuse administratsioon

adressadile..." (Punkt 105)

"Kirjalikud avaldused registreeritakse vanglaasutuse kantseleis

ja saadetakse kolme päeva jooksul adressadile." (Punkt 112)

"Vastused avalduste lahendamise tulemuste kohta tehakse

kinnipeetavale teatavaks allkirja vastu kolme päeva jooksul

vastuse saabumisest ning lisatakse kinnipeetava isikutoimikusse."

(Punkt 113)

COMPLAINTS

1. The applicant complains about interference by the prison

administration with his correspondence with the Commission. He states

that letters from the Commission are forwarded to him open and with

delay. The applicant invokes Article 25 of the Convention.

2. The applicant also complains about interference by the prison

authorities with all his correspondence. He submits that his personal

mail is regularly opened and that letters are often delivered to him

by the prison staff with delay.

3. The applicant further alleges a violation of his rights under

Article 6 of the Convention in the criminal proceedings. He considers

that he was not tried by an independent and impartial court and submits

that he was deprived of the possibility of choosing a lawyer,

acquainting himself with the case-file and questioning witnesses.

THE LAW

1. The applicant complains about interference with his

correspondence with the Commission under Article 25 para. 1 (Art. 25-1)

of the Convention, which in fine provides:

"Those of the High Contracting Parties who have made such a

declaration undertake not to hinder in any way the effective

exercise of this right."

The Commission considers that this complaint also raises issues

under Article 8 (Art. 8) of the Convention which reads as follows:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interest 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."

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint. The Commission

finds that it is therefore necessary, in accordance with Rule 48 para.

2 (b) of the Commission's Rules of Procedure, to give notice of this

complaint to the respondent Government.

2. The applicant complains about interference by the prison

administration with all his correspondence. He refers to the regular

opening of his mail by the prison staff and to delays in forwarding

letters to him.

The Commission considers that this complaint raises issues under

Article 8 (Art. 8) of the Convention.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint. The Commission

finds that it is therefore necessary, in accordance with Rule 48 para.

2 (b) of the Commission's Rules of Procedure, to give notice of this

complaint to the respondent Government.

3. The applicant complains about the unfairness of the criminal

proceedings under Article 6 (Art. 6) of the Convention. In particular,

he complains that he was not tried by an independent and impartial

court and that he was deprived of the possibility of choosing a lawyer,

acquainting himself with the case-file and questioning witnesses.

The Commission considers that it is not required to decide

whether or not the applicant's complaints under Article 6 (Art. 6) of

the Convention disclose any appearance of a violation of the

Convention.

The Commission observes that the facts complained of relate to

a period prior to 16 April 1996, which is the date of the entry into

force of the Convention with respect to Estonia. It follows that this

part of the application is outside the competence ratione temporis of

the Commission and is incompatible with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's

complaints about the interference with his correspondence;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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SLAVGORODSKI v. ESTONIA

SLAVGORODSKI v. ESTONIA

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