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HOLLAND v. IRELAND

Doc ref: 24827/94 • ECHR ID: 001-4184

Document date: April 14, 1998

  • Inbound citations: 9
  • Cited paragraphs: 0
  • Outbound citations: 9

HOLLAND v. IRELAND

Doc ref: 24827/94 • ECHR ID: 001-4184

Document date: April 14, 1998

Cited paragraphs only



               AS TO THE ADMISSIBILITY OF

                       Application No. 24827/94

                       by Patrick HOLLAND

                       against Ireland

     The European Commission of Human Rights sitting in

private on 14 April 1998, the following members being pres-

ent:

          MM   S. TRECHSEL, President

               J.-C. GEUS

               G. JÖRUNDSSON

               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

               M.A. NOWICKI

               I. CABRAL BARRETO

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

               P. LORENZEN

               K. HERNDL

               E. BIELIUNAS

               E.A. ALKEMA

               M. VILA AMIGÓ

          Mrs  M. HION

          MM   R. NICOLINI

               A. ARABADJIEV

          Mr   M. de SALVIA, Secretary to the Commission

     Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on

21 February 1994  by Patrick HOLLAND against Ireland and

registered on 5 August 1994 under file No. 24827/94;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of

     Procedure of the Commission;

-    the observations of the parties dated 14 February 1997

     and those of the applicant received on 12 December

     1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Irish citizen, was born in 1939 and is

currently in prison in Portlaoise, Ireland.

A.   Particular facts of the case

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

summarised as follows.

     On 27 June 1989 the applicant was convicted of possession of

explosive substances for an unlawful object and he was sentenced to

ten years imprisonment. On appeal the sentence was reduced to seven

years imprisonment to run from 28 June 1989. The applicant was

released in or around early 1996. He was again arrested in April

1997 on different charges, convicted in late 1997 and is currently

serving the consequent prison sentence.

1.   Correspondence

     On 10 February 1993 the applicant gave a letter, directed to

another prisoner's father and containing a High Court application

drafted by the applicant on behalf of that other prisoner, to the

prison authorities for posting. That letter was handed back to him

on 12 February 1993 bearing the Censor's stamp. The applicant made

an application (against the Governor, the Minister for Justice, the

Attorney General and Ireland) for leave to seek judicial review

concerning that incident and another allegation in relation to a

letter from a member of parliament being put into his locker instead

of being handed directly to him. The applicant sought an order of

mandamus directing the respondents to refrain from interfering with

his correspondence. He claimed that that interference was in

violation of his constitutional rights and of his rights under

Article 8 of the Convention.

     On 19 March 1993 the High Court (Lynch J) rejected the

applicant's application. That court allowed the applicant to rely on

an unsworn affidavit since he had claimed that he could not afford

the necessary £10.00 for a Commissioner for Oaths. The judgment

confirmed that Rule 63 "is not invalidated by the Constitution

applying as it does only to persons lawfully imprisoned" and that

the respondents were within their rights in not posting the letter.

On 9 July 1993 the Supreme Court gave leave to apply for judicial

review for an order directing the Governor of the prison to inform

the applicant of the reason for non-transmission of his letter. On

28 January 1994 the High Court heard the applicant but rejected the

application on the basis that the applicant's letter had been, by

then, transmitted. On 13 May 1994 the Supreme Court rejected the

applicant's appeal.

     The applicant has submitted a schedule of all outgoing

correspondence between 9 February 1993 and 17 July 1994. He has also

submitted copy and original outgoing and incoming correspondence

which has been stamped by the prison authorities either "Censored"

or "Please insert your full name and unit no. on all outgoing mail"

which includes correspondence:

- to the Commission dated 21 and 28 February 1994, 4 March 1994,

18 April 1994, 16 and 27 May 1994, 7 July 1994 and 29 August 1994

and from the Commission dated 18 and 29 April 1994, 16 June 1994 and

8 August 1994;

- from the applicant's solicitors (Garrett Sheehan and Co. dated

23 November 1989 and Ferrys dated 14 April 1994);

- to the Council of Europe dated 11 August 1993 in relation to the

work of the Committee for the Prevention of Torture and Inhuman or

Degrading Treatment;

- from the Australian Law Reform Commission dated 9 November 1993

(referring briefly to, inter alia, the Commission and to the UN

Human Rights Committee);

- from Dáil Eireann (the parliament) dated 22 January 1991,

10 January 1992 (attaching a letter from the Minister for Justice),

23 January 1992 (attaching a letter from the Minister for the

Environment) and 15 June 1994;

- from the Office of the Minister for the Environment (dated

4 December 1991, 10 and 18 August 1993), from the Office of the

Secretary to the President (dated 17 December 1991), from the

Minister for Justice (dated 8 October 1993 and 22 June 1994), from

the Office of the Minister for Equality and Law Reform (dated 16 and

27 June 1994, the latter enclosing a letter from the Minister for

Justice) and from the Minister of State of the Department of the

Prime Minister (including a letter dated 31 May 1993, an undated

letter attaching a letter from the Minister for Justice dated 2 June

1993, letters dated 3 and 17 August 1993, an undated letter in

relation to constituency office arrangements and a letter dated 15

October 1993);

- from the Chief State Solicitor dated 13 April 1994 (which related

to certain proceedings as regards the applicant's voting rights) and

8 August 1994 (enclosing certain pleadings in proceedings issued

against, inter alia, the Governor of the applicant's prison);

- from the Clerk of the High Court (dated 20 April 1994, stamped

"The Wheatfield Prison - 22 April 1994 - received"  and relating to

the procedure for lodging a plenary summons in the High Court

central office) and from the registrar of the Supreme Court dated

10 August 1994;

- from the legal correspondent of the Guardian newspaper dated

15 June 1993 (giving the applicant the name of a solicitors' firm in

England);

- from Dublin Corporation dated 11 October 1993 (in relation to the

applicant's registration for voting) and 31 August 1994, the latter

of which enclosed a copy of Dublin Corporation's letter to the

applicant dated 4 May 1994;

2.   Voting

     On 7 November 1990 the election for the President of Ireland

took place. The applicant did not vote. On 19 March 1991 the High

Court refused the applicant's application for judicial review in

relation to his inability to vote from prison stating that there was

no statutory right for voting by prisoners and suggesting that the

applicant wait until an election is imminent if he wished to pursue

the matter. On 28 June 1991 the Supreme Court refused the appeal

noting that the applicant had not even applied to register himself

to vote in the relevant constituency in accordance with section 5(5)

of the Electoral Act 1963. It was also noted that the additional

question of permission or authority to vote is clearly within the

discretion of the Governor of the prison and there was no suggestion

that the applicant had made such a request.

     On 25 November 1992 the election for Dáil Eireann and a

constitutional referendum (relating to the provision guaranteeing

the right to life of the unborn) took place. The applicant did not

vote. On 11 October 1993 the applicant was informed by Dublin

Corporation that his name would be included in the register of

electors at his home address in Dublin.

     In or around 1993 the applicant applied for leave to institute

judicial review in relation to the refusal of the prison authorities

to grant him a postal vote for local elections, the European

Parliament elections, Presidential elections, constitutional

referenda and elections for Dáil Eireann (the parliament) relying

on, inter alia, Articles 16, 12 and 27 of the Constitution, the

European Assembly Elections Act 1977 and the local election

legislation. On 18 November 1993 the High Court found as follows:

     "The applicant seeks an order of Mandamus directing the

     Respondent to grant him a postal vote. I am treating the

     application as an application for leave to institute judicial

     review proceedings to obtain an order of Mandamus. The

     applicant admits that there is no statutory provision

     permitting postal votes for prisoners. Accordingly I must

     refuse the application. If the applicant considers that he can

     mount a constitutional challenge to the relevant enactments in

     the Electoral Acts, he should do so by plenary proceedings. In

     the circumstances judicial review would not be appropriate."

     On 28 January 1994 the applicant's appeal was refused by the

Supreme Court.

     Subsequently, the applicant applied to the High Court for an

order directing the Governor to take him to the central office of

the High Court to issue a plenary summons to commence proceedings as

to the constitutionality of his being prevented from voting. On

5 May 1994 the High Court refused the application as personal filing

of the summons was not necessary. On appeal, the Supreme Court noted

that the applicant had already been escorted on 11 May 1994 to the

central office to file the plenary summons. The court also found, as

regards the applicant's claim that he could not personally serve the

Chief State Solicitor, that postal service was sufficient in that

respect and it dismissed the appeal.

     On 20 May 1994 the applicant applied for an injunction to

suspend the European Parliament elections due to take place on 9

June 1994 in order to allow him to pursue his constitutional

proceedings. This was refused by the High Court on 7 June 1994. The

election for the European Parliament took place and the applicant

did not vote. On 29 July 1994 the Supreme Court dismissed the

applicant's appeal on the basis that that election had, by then,

taken place.

     The plenary summons issued by the applicant on 11 May 1994

made no reference to a violation of a constitutional right to vote.

He referred to various international instruments and his position as

a citizen of the European Union. The Chief State Solicitor entered

an appearance on 11 July 1994. The applicant did not pursue the

proceedings further. On 25 November 1995 a constitutional referendum

(relating to divorce) took place and the applicant did not vote.

B.   Relevant domestic law and practice

1.   Prisoners' correspondence

     The rules for the government of prisons are contained in the

Prison Rules 1947 ("the 1947 Rules") and were enacted by the

Minister for Justice by way of Statutory Instrument 320 of 1947.

Rule 63 is  entitled "Prisoners' letters" and it reads as follows:

     "Every letter to or from a prisoner shall be read by the

     Governor, or other responsible officer deputed by the

     Governor, and initialled by him; and if the contents are

     objectionable, it shall not be forwarded, or the objectionable

     part shall be erased, according to discretion. The Governor

     shall use his discretion in communicating to or withholding

     from a prisoner at any time the contents of any letter

     addressed to the prisoner, but shall note in his journal every

     case in which he thinks it proper to withhold a letter which,

     according to the rules, might be communicated to or written by

     a prisoner."

     Article 40(3) of the Constitution reads as follows:

     "1. The State guarantees in its laws to respect, and, as far

     as practicable, by its laws to defend and vindicate the

     personal rights of the citizen.

     2. The State shall, in particular, by its laws protect as best

     it may from unjust attack and, in the case of injustice done,

     vindicate the life, person, good name, and property rights of

     every citizen."

     The domestic courts recognise the existence of further

personal rights which are protected by Article 40(3) of the

Constitution either as rights ancillary or corollary to those

expressly mentioned in Article 40(3)(2) or as latent in the

expression "personal rights" in Article 40(3)(1). One of these

"unenumerated rights" recognised by the courts is the right to

communicate - Attorney General v. Paperlink Limited [1984] ILRM 343

and McKenna v. An Taoiseach, High Court (Costello J) 8 June 1992.

     The domestic courts also recognise that an inevitable

practical and legal consequence of imprisonment is that a great many

of the constitutional personal rights of the prisoner are for the

period of imprisonment suspended or placed in abeyance (The State

(Richardson) v. the Governor of Mountjoy Prison [1980] ILRM 82).

Accordingly (and apart from breaches of constitutional rights of

such a nature as would affect the lawfulness of his detention for

which a habeas corpus action would be appropriate), the domestic

courts recognise the prisoner's right of access to court to complain

of an interference with constitutional rights which is not necessary

to give effect to the sentence of the court (The State (Fagan) v.

Governor of Mountjoy Prison, High Court, 6 March 1978).

     The High Court in the Kearney case (Kearney v. the Minister

for Justice [1986] IR 116) considered, inter alia, the

constitutionality of Rule 63 of the 1947 Rules further to a plenary

summons seeking, inter alia, a declaration that Rule 63 of the 1947

Rules was unconstitutional. The plaintiff's principal objection was

that his letters to and from his solicitor were read by the Governor

or his deputy - he submitted that the power to interfere with his

right of communication with his solicitor, relatives and friends

could only be interfered with in exceptional circumstances (for

example, proven security issues) and in such cases he should be

present when letters were opened for inspection.

     The High Court held that the constitutional right to

communicate could be regulated by law and that prisoners retained

only those constitutionally protected rights which did not depend on

a prisoner's liberty and which were compatible "with the reasonable

requirements of the place in which he is imprisoned". The High Court

found that the evidence in the case established that the restriction

on the right to communicate which involved reading all letters to

and from prisoners (including legal correspondence) could reasonably

be justified on the grounds of security and was not therefore

unconstitutional. In reaching this conclusion the High Court noted

that in the case of legal correspondence addressed to and from the

prison, "staff are instructed to read the letter only to the extent

necessary to ensure that it relates to the prisoner's legal affairs.

Staff are expected to treat as confidential all information obtained

as a result of the operation of Rule 63". Moreover, the High Court

considered the plaintiff's suggestion that a prisoner should be

present every time his correspondence was opened as "unreasonably

burdensome".

     As regards the Golder and Silver judgments of the European

Court of Human Rights to which the High Court was referred "in

passing" (Eur. Court HR, Golder v. the United Kingdom judgment of

21 February 1975, Series A no. 18 and Silver and Others v. the

United Kingdom judgment of 25 March 1983, Series A no. 61), the High

Court noted that the facts of those cases were very different from

those of the Kearney case. The High Court noted, however, that both

cases made clear that some interference with prisoners'

correspondence was permitted according to the ordinary and

reasonable requirements of imprisonment.  Since, however, it was

established that certain correspondence had not been passed on to

the prisoner, in breach of Rule 63, he was awarded £25 nominal

damages against the State in that latter respect. The plaintiff did

not pursue an appeal to the Supreme Court.

2.   Prisoners' right to vote

     Articles 12(2), 16(1) and 47(3) of the Irish Constitution

guarantee to, inter alia, all citizens, who are not disqualified by

law and comply with the provisions of the law relating to the

election of members of Dáil Eireann, the right to vote in a

Presidential election, a general election for members of Dáil

Eireann and a constitutional referendum.

     Section 5(5) of the Electoral Act 1963 provided that a

prisoner was deemed to be resident on the relevant date in the

constituency of the prison for the purpose of being registered to

vote. This was amended by the Electoral Act 1992 (section 11(5)) and

such a prisoner is now deemed to be resident in the place where he

would have been resident but for his having been so detained in

legal custody. The purpose of the change in the 1992 Act is to allow

newly released prisoners or prisoners on temporary release to be

ready to vote should an election be called rather than await the

next annual review of the voting register before they can vote. The

1992 Act does provide for postal voting for, inter alia, the police,

members of the defence forces, certain civil servants and for people

with disabilities.

COMPLAINTS

     The applicant complains about interferences with his

correspondence and he invokes Articles 8 and 10 of the Convention in

this respect. He also complains that he was not able to vote while

he was in prison and invokes Articles 6, 8, 9, 10, 13, 14 and 17 of

the Convention and Article 3 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 21 February 1994 and was

registered on 5 August 1994.

     On 25 November 1996 the Commission decided to communicate the

applicant's complaints in relation to his correspondence and his

voting rights. The Government observations are dated 14 February

1997 and the applicant's observations in response were received on

12 December 1997.

THE LAW

1.   The applicant complains about interferences with his

correspondence namely, about the systematic opening, reading and

copying onto his prison file of his correspondence together with two

specific incidents of delay. In this latter respect, the applicant

refers to a letter from an elected representative which arrived at

the prison in March 1992 and a letter from him written on behalf of

a fellow prisoner concerning legal matters. While the applicant

invokes Articles 8 and 10 (Art. 8, 10) of the Convention, the

Commission considers that this complaint falls to be considered

under Article 8 (Art. 8) of the Convention (Eur. Court HR, Silver

and Others v. the United Kingdom judgment of 25 March 1983, Series A

no. 61, p. 41, para. 107). Article 8 (Art. 8), insofar as relevant,

reads 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 in the

     interests of national security, public safety ..., for the

     prevention of disorder or crime, ... or for the protection of

     the rights and freedoms of others."

     As to the two specific allegations of delay, the Government

point out that putting correspondence in a prisoner's locker to

which the applicant could have access on request does not constitute

an interference. Insofar as the applicant claims that he was not

told that there was correspondence in his locker, the prison

authorities overlooked that the relevant letter was among copies of

voter registration forms which had also arrived for the applicant.

In any event, the applicant had access to the locker within two days

of the letter being lodged therein. Secondly, and as regards the

letter written on behalf of a fellow inmate, the applicant was told

that he would have to ask the Governor to send the letter and he

never did.

     The Government assert, as to the complaint about the operation

of Rule 63, that this complaint is inadmissible on grounds of non-

exhaustion. They argue that the purpose of the proceedings initially

instituted by the applicant was to compel the respondents to give

reasons for the non-transmission of a particular letter. It was at

all times open to him to bring fresh judicial review proceedings

seeking a declaration that he was entitled to correspond without

interference with all persons or, alternatively, to commence

proceedings by way of plenary summons asserting an infringement of

his constitutional rights. The judgment in the Kearney case (loc.

cit.) is a High Court judgment which the applicant could challenge

before the Supreme Court.

     Alternatively, the Government submit that if there has been an

interference with the applicant's rights under Article 8 (Art. 8) it

is justified in view of the risk that letters are used to pass and

receive unauthorised material which could pose a threat to good

order and discipline in the prison and facilitate attempts at

escape, drug dealing and other criminal activities. However, since 2

August 1996 and 8 November 1996 the prison governors were informed

by the Minister for Justice that all prisoners could communicate by

letter on a confidential basis with the European Committee for the

Prevention of Torture and Inhuman and Degrading Treatment and with

the European Commission for Human Rights, respectively.

     Finally, the Government assert that legal correspondence

(including correspondence to and from the Commission prior to 1996)

was simply opened, stamped and cursorily examined in order to

establish that the letters were what they purported to be - no

attempt was made to examine or assess the contents thereof and it

was not read, delayed or suppressed by the prison authorities.

Further to the Commission's specific request, the Government

submitted copies of the applicant's mail which was on his prison

file. The copy correspondence is voluminous and comprises, for the

most part, the applicant's correspondence with his solicitors, the

courts and the Commission.

     The applicant re-asserts that the domestic proceedings taken

by him were sufficient to exhaust domestic remedies.  While he

denies that he was advised by prison personnel that correspondence

had been put in a locker and that he was told of the powers of the

Governor to which the Government refer as regards the letter written

on behalf of a fellow inmate, he does not dispute that he had access

to the letter from the member of parliament within 2 days of its

arrival at the prison.

     The Commission notes that it is not required to decide whether

or not the facts alleged by the applicant, in respect of these

allegations, disclose any appearance of a violation of the

Convention, as under Article 26 (Art. 26) of the Convention, it may

only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of

international law.

     The Commission recalls that in a legal system which provides

constitutional protection for fundamental rights, it is incumbent on

the aggrieved individual to test the extent of that protection and,

in a common law system, to allow the domestic courts to develop

those rights by way of interpretation (No. 18670/91, Dec. 1.12.93,

unpublished). In this respect, it is recalled that a declaratory

action before the High Court, with a possibility of an appeal to the

Supreme Court, constitutes the most appropriate method under Irish

law of seeking to assert and vindicate constitutional rights

(No. 15141/89, Dec. 15.2.90, D.R. 64, p. 203, No. 23156/94,

Dec. 31.8.94, unpublished and No. 28154/95, Dec. 2.7.97,

unpublished).

     In the present case, the Commission notes that the sole

proceedings instituted by the applicant constituted judicial review

proceedings based on two alleged incidents of interference with his

correspondence. He has taken no declaratory action by way of Plenary

Summons joining the Attorney General claiming that the powers of

interception of his correspondence resulting from Rule 63 of the

1947 Rules violated his constitutional right to communicate.

     It is true that the High Court in the Kearney case (loc. cit.)

found that Rule 63 of the 1947 Rules did not infringe the

constitutional right of prisoners to communicate protected by

Article 40(3) of the Constitution.

     However, in the first place, the Commission notes that the

Supreme Court did not pronounce on the issue in that case and,

according to the parties' submissions, has not yet pronounced on the

constitutionality of the interception of prisoners' correspondence

permitted by Rule 63 of the 1947 Rules. It is also noted that the

Kearney judgment was handed down more than 12 years ago.

     Secondly, while the Irish domestic courts cannot directly

apply the judgments of the European Court of Human Rights since the

Convention has not been incorporated into domestic law, the

Commission notes the reference to certain case-law of that Court in

the High Court judgment in the Kearney case. In this respect, the

Commission recalls that since that judgment there have been further

developments in the jurisprudence under the Convention and refers,

in particular, to the Campbell judgment decided six years after the

Kearney case (Eur. Court HR, Campbell v. the United Kingdom judgment

of 25 March 1992, Series A no. 233) and specifically to paragraphs

44-54 thereof.

     The Court found in the Campbell case (against a background of

"routine scrutiny" of that applicant's correspondence) that prison

authorities may open a letter from a lawyer to a prisoner only when

they have reasonable cause to believe that it contains an illicit

enclosure; that even in such circumstances the letter should not be

read and suitable guarantees should be provided in this respect such

as opening the letter in the presence of a prisoner; and that the

reading of legal correspondence of a prisoner will only be

justifiable in exceptional circumstances. The Court also found that

there was "no compelling reason why such letters from the Commission

should be opened". In the present case, Rule 63 of the 1947 Rules

provides for the systematic opening and reading of all

correspondence including correspondence with the Commission, lawyers

and the domestic courts, a substantial amount of which

correspondence was copied onto the applicant's prison file.

     Thirdly, the contents of the applicant's prison file would

appear to demonstrate a significant extension of the practice of the

prison authorities in applying Rule 63 in the applicant's case. It

is clear, from the voluminous copy correspondence to and from the

applicant on his prison file, that the prison authorities' control

of his correspondence went as far as the taking and retaining of

copies of a significant portion of his correspondence for a purpose

not outlined by the Government in its observations. Indeed, the

majority of the correspondence so copied constitutes legal

correspondence including letters to and from the Commission, his

application form to the Commission, correspondence to and from his

lawyers and pleadings in the above-described domestic proceedings.

The control exercised by the prison authorities is thus

substantially more extensive than that examined by the High Court in

the Kearney judgment, in which case the High Court noted that the

instructions to prison staff were to read legal correspondence only

to the extent necessary to ensure that it relates to the prisoner's

legal affairs and to treat as confidential all information obtained

as a result of the operation of Rule 63.

     Moreover, the Commission does not consider that there exist

any special circumstances in the present case which would, in

accordance with the generally recognised rules of international law,

absolve the applicant from the obligation to exhaust a domestic

remedy (see, for example, No. 14556/89, Dec. 5.3.91, D.R. 69, p.

261). The present case can be distinguished from the O'Reilly case

against Ireland (No. 24196/94, Dec. 22.1.96, D.R. 84-A, p. 72), the

O'Reilly case concerning a complaint under Article 5 para. 5

(Art. 5-5) and a choice which Mrs O'Reilly "reasonably" made between

different domestic remedies open to her.

     The Commission notes that on the basis of Rule 63 and of the

copy correspondence on the applicant's file, it is arguable that the

contents of the applicant's legal correspondence in respect of any

such constitutional action would have been read and copies retained

by the prison authorities. However, in view of the purpose of the

relevant proceedings (challenging the constitutionality of a

statutory instrument) and since the nature of those proceedings

would lead to submissions mainly of a legal character, the

Commission does not consider that the access by prison staff to his

legal correspondence requires that he be absolved from exhausting

the constitutional remedy outlined above.

     Accordingly, the Commission finds the part of the applicant's

complaint which relates to the delay in forwarding to him a letter

from a member of parliament inadmissible as manifestly ill-founded

pursuant to Article 27 para. 2 (Art. 27-2) of the Convention. It

also finds the remainder of this complaint inadmissible pursuant to

Article 27 para. 3 (Art. 27-3) of the Convention on the basis of his

failure to exhaust domestic remedies as required by Article 26

(Art. 26) of the Convention.

2.   The applicant also complains that he could not vote while he

was in prison and he invokes Articles 6, 8, 9, 10, 13, 14 and 17

(Art. 6, 8, 9, 10, 13, 14, 17) of the Convention together with

Article 3 of Protocol No. 1 (P1-3). The Commission considers that

this matter falls to be considered under Article 3 of Protocol No. 1

(P1-3) of the Convention, which Article reads as follows:

     "The High Contracting Parties undertake to hold free elections

     at reasonable intervals by secret ballot, under conditions

     which will ensure the free expression of the opinion of the

     people in the choice of the legislature."

     The Government point out that the applicant did not complete

the constitutional proceedings issued by him and he has not,

therefore, exhausted domestic remedies in this respect. In any

event, the Government refer to the margin of appreciation afforded

to States in this area and to the broad powers of States to

determine the conditions under which the right to vote may be

exercised. In this context, the Government argue that it is not

obliged under the Convention to provide temporary release to

prisoners to vote, ballot boxes in the prison or the right to a

postal vote. Release of all prisoners to vote would be far too high

a security risk and put an unfair burden on the prison system which

holds at any one time in the region of 2300 inmates. As a result of

the voting system in Ireland and the different areas in which

prisoners will be registered to vote, hundreds of ballot boxes would

be required in each prison to allow all prisoners to vote.

     This leaves postal voting and the Government submit that this

is not a right guaranteed by the Constitution or by the Convention.

In addition, postal voting requires registration in

September/October in order to be a listed postal voter in the

revised electors list published annually the following February -

persons released in the meantime could not vote as prisoners or by

ordinary franchise.

     The applicant maintains that he has exhausted domestic

remedies referring to the various domestic proceedings issued by him

in this respect. In the alternative, he submits that he had no

effective remedy to exhaust. As to the merits of his complaint, he

argues that since prisoners have not been exempted by statute, the

constitutional right to vote accorded to every citizen continues to

apply to prisoners. He points out that, despite this, the reason in

practice that prisoners do not vote is because the prison

authorities do not release them to vote. The applicant considers

that there is no good security reason not to allow prisoners to vote

referring to either a postal vote possibility or to a ballot box in

the prison itself. He points to the importance of the elections

which took place during his imprisonment namely, a Presidential

election held on 7 November 1990, a general election held on 25

November 1992, a constitutional referendum held on 25 November 1992

(relating to the provision guaranteeing the right to life of the

unborn), the European Parliament election held on 9 June 1994 and

certain local authority elections.

     The Commission does not consider that it is necessary to

decide whether the applicant has exhausted all effective domestic

remedies or, consequently, whether this complaint has been

introduced in time in relation to all of the elections which took

place while he was in prison or whether all such elections related

to "legislatures" within the meaning of Article 3 of Protocol No. 1

(P1-3), since this complaint is inadmissible for the reasons set out

below.

     The Commission recalls that the de facto deprivation of the

right to vote imposed on a prisoner has been found by the Commission

not to affect the expression of the opinion of the people in the

choice of legislature (No. 2728/66, Yearbook X, p. 340). It also

recalls its constant case-law to the effect that, although Article 3

of Protocol No. 1 (P1-3) implies a recognition of the principle of

universal suffrage (including the right to vote in elections for the

legislature), this right is neither absolute nor without limitations

but subject to such restrictions which are not arbitrary and which

do not affect the expression of the opinion of the people in the

choice of legislature (No. 6573/74, Dec. 19.12.74, D.R. 1, p. 87 and

Nos. 6745/74, 6746/74, Dec. 30.5.75, D.R. 2, p. 110 and No.

11391/85, Dec. 5.7.85, D.R. 43, p. 236).

     Accordingly, the Commission has found that the deprivation of

the right to vote, pursuant to a conviction by a court for

uncitizenlike conduct or because of minimum age requirements of

potential candidates, does not affect the expression of opinion of

the people and is not arbitrary (Nos. 6573/74, 6745/74 and 6746/74,

loc. cit.).

     The Commission also recalls the case of an applicant who had

been sentenced to eighteen months imprisonment and whose right to

vote was, accordingly, suspended by legislation during that sentence

and for three years thereafter (No. 9914/82, Dec. 4.7.83, D.R. 33,

p. 245). The Commission, in deciding whether such a restriction was

arbitrary and whether it restricted the free expression of the

opinion of the people, noted that the restriction in question was

imposed by law on a specific category of person. The Commission felt

bound to conclude that the legislator, in the exercise of its margin

of appreciation, may restrict the right to vote in respect of

convicted persons. Such restrictions could, in the Commission's

opinion, be explained by the notion of dishonour that certain

convictions carry with them for a specific period, which may be

taken into consideration by legislation in respect of the exercise

of political rights. Accordingly, the Commission concluded that the

suspension of the exercise of the right to vote was not arbitrary

and did not affect the expression of the opinion of the people in

the choice of legislature within the meaning of Article 3 of

Protocol No. 1 (P1-3).

     In the present case, the applicant was convicted of possession

of explosive substances and his sentence was (after appeal) fixed at

seven years imprisonment to run from 28 June 1989. It appears that

he was released in or around early 1996 and that a number of

elections took place while he was in prison.  However, the

Commission does not consider that the suspension of the right of the

applicant to vote while in prison affected the expression of the

opinion of the people in the choice of legislature  - the fact that

all of the convicted prisoner population cannot vote does not affect

the free expression of the opinion of the people in the choice of

legislature (Nos. 6573/74, 6745/74 and 6746/74, loc. cit.).

     As to whether the domestic position can be considered to be

arbitrary, the Commission notes that the applicant was not, in any

event, registered to vote until October 1993 pursuant to his

application for registration and that he does not complain about any

significant delay caused by others in that respect. The Commission

further notes that the Government chose in 1992 to allow

registration of prisoners to vote in the constituencies where they

would be otherwise ordinarily resident (were it not for their

detention). The aim was to facilitate the voting process for those

prisoners who had, on the date of an election, just completed their

sentence or who were on temporary release (for reasons unrelated to

voting). It is implicit in that amending legislation, therefore,

that prisoners who remained in detention would not vote. In view of

the afore-mentioned margin of appreciation and the above-cited

jurisprudence of the Convention organs, the Commission does not

consider that this choice of the legislature was arbitrary within

the meaning of Article 3 of Protocol No. 1 (P1-3).

     Accordingly, and even assuming compliance with the

requirements of Article 26 (Art. 26) of the Convention and that the

complaint falls within the scope of Article 3 of Protocol No. 1

(P1-3), the Commission considers that this complaint of the

applicant is, in any event, manifestly ill-founded within the

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

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE

        M. DE SALVIA                          S. TRECHSEL

         Secretary                             President

     to the Commission                     of the Commission

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