AS TO THE ADMISSIBILITY OF

                      Application No. 26667/95

                      by Richard O'HARA

                      against Ireland

     The European Commission of Human Rights sitting in private on

14 April 1998, the following members being present:

           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 18 August 1994 by

Richard O'HARA against Ireland and registered on 8 March 1995 under

file No. 26667/95;

     Having regard to :

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

     the Commission;

-    the Commission's decision of 2 September 1996 to communicate the

     applicant's complaints under Articles 6, 8 and 13 of the

     Convention in relation to interference with his correspondence

     and to declare the remainder of the application inadmissible;

-    the Commission's decision of 19 October 1996 to write to the

     Government in relation to the Commission's correspondence being

     opened after communication of the interference with

     correspondence complaint and the Commission's decision of

     1 March 1997 decision not to accept the Government's suggestion

     of a double envelope system; and

-    the observations of the Government received on 12 November 1996

     and those of the applicant received on 22 January 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen and he was born in Belfast,

Northern Ireland in 1953. He is serving a sentence of life imprisonment

in Arbour Hill Prison, Dublin. The present application is the

applicant's second to the Commission, his first application

(No. 23156/94) being declared inadmissible in August 1994.

A.   Particular facts of the case

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

summarised as follows. On 29 March 1982 the applicant was convicted of

the murder of a 19 year old girl and was sentenced, pursuant to section

2 of the Criminal Justice Act 1964, to a term of life imprisonment.

     Having allegedly suffered injury to his back while using

equipment in the prison gym in early October 1991, the applicant issued

personal injury proceedings in late 1994 against the prison authorities

with the assistance of his solicitors and in the context of these

proceedings corresponded with those solicitors. The applicant has also

corresponded with the Commission (since in or around October 1993) and

with the Committee for the Prevention of Torture and Inhuman and

Degrading Treatment or Punishment ("the CPT").

     When the applicant complained to the Governor of the prison about

interference with his correspondence, he was directed to the Prison

Visiting Committee and on 13 September 1994 the applicant lodged a

complaint to that committee. On 26 September 1994 the Governor of the

prison informed the applicant that the committee had decided that all

of the applicant's correspondence (including religious material) would

be censored.

(a)  The applicant has submitted letters from the Commission to him

in Arbour Hill prison which are stamped "Censor's Office" and dated

30 November 1994, 13 February 1995, 9 March 1995, 13 December 1995,

14 February 1996, 20 and 29 March 1996. The Commission envelopes have

"The European Commission of Human Rights" printed on the front and the

words "Council of Europe" together with the relevant logo are printed

on the back.

(b)  The applicant's letters to the Commission dated 31 August 1994,

5 September 1994, 26 and 29 September 1994, 2 October 1994,

7 November 1994, 30 January 1995, 26 February 1995, 20 January 1996,

7 February 1996, 4 and 19 March 1996, 9, 10 and 24 April 1996 and 20

May 1996 are all stamped "Censor's Office". His letter dated

28 February 1996 to the Commission was sent to the Commission by the

Governor of the prison.

(c)  The applicant claims that his letters to the CPT have been opened

and read and that certain of those letters have been suppressed. The

applicant has submitted a letter dated 22 February 1994 from the CPT

to him which letter is also stamped "Censor's Office". The CPT's

envelopes also have the words "Council of Europe", the relevant logo

and the full title of the CPT (in English) printed on the outside.

(d)  The applicant has also submitted letters from his solicitor

dealing with his personal injury claim against the prison which are all

stamped "Censor's Office" and dated 11 February 1994, 14 and

22 March 1994, 9 and 21 June 1994 (this last letter contained a medical

report prepared for the applicant's personal injuries case against the

prison), 13 and 19 September 1994 (this last letter was stamped

"Censor's Office" on two different dates). The applicant has also

submitted another letter dated 28 February 1996 from another firm of

solicitors. The applicant had contacted that latter firm in relation

to certain grievances as regards his sentence and the prison

authorities. That letter was also stamped "Censor's Office". The

envelope in which this letter was contained was marked "Private &

Confidential, Legal Correspondence".

(e)  The applicant has also submitted a religious magazine sent from

an evangelistic association in the United States in a transparent

plastic envelope which magazine was also stamped "Censor's Office" on

24 April 1996. He also submits that a Bible Concise Dictionary, sent

by Kingston Bible Trust, was similarly stamped on 5 May 1994.

(f)  Three letters from the AIRE Centre in London (a London-based

individual rights advice centre) dated 26 June 1995, 7 July 1995 and

30 November 1995 are also submitted by the applicant. These letters

contained advice to the applicant in relation to, inter alia,

applications to the Commission and are stamped "Censor's Office".

(g)  The applicant has submitted a letter from the Legal Aid Board in

Dublin dated 6 July 1995, from the Probation Board for Northern Ireland

dated 5 February 1992 and from the office of the Secretary to the

President of Ireland dated 14 February 1996, all of which letters are

stamped "Censor's Office". A letter from the British Embassy in Dublin

to the applicant dated 29 April 1994 - containing a copy of a letter

from that embassy to the Department of Justice (as regards a concession

for the applicant in relation to telephone calls from the prison) and

a copy of a letter from the Foreign and Commonwealth Office in London

dated 4 March 1993 to a Member of Parliament (dealing with questions

relating to the applicant's release) - is also submitted by the

applicant. That letter and the copy letters enclosed are all stamped

"Censor's Office".

(h)  The applicant also submits that, having received a photocopy of

a letter sent to him as opposed to the original, his solicitor advised

him to request the prison authorities to furnish him with copies of

certain letters previously sent to him (by Southern Health Board and

the courts). The applicant claims that he made the request and received

copies of those letters from the prison authorities.

     The applicant alleges certain delays as regards his

correspondence. He alleges that an application form to the Commission

was delayed for three days by the prison authorities (23-

26 November 1993); that documents were delayed between 3 and

5 August 1994; that a newspaper entitled "Insidetime" (concerning

prisoners' rights) does not arrive in his cell as it did before his

first application to the Commission; and that a letter to the British

Embassy in Dublin, posted by the applicant on 6 July 1994 through the

prison authorities, was not received until 11 July 1994.

     The applicant also alleges that certain letters and documents

were suppressed - a letter to the CPT dated 29 March 1994 and a follow-

up letter dated 7 July 1994; a letter to a local radio station; certain

documents enclosed in a letter to Mr. Peter Robinson, Member of

Parliament (United Kingdom); and a report of the Northern Ireland

Association for the Care and Resettlement of Offenders of

30 March 1992.

     On 13 December 1995 the applicant completed and had sworn an

affidavit before a Commissioner for Oaths in relation to a proposed

action relating to the Sentence Review Group and his applications for

release. As a result of the filing of that affidavit, the applicant was

given and completed, on 10 January 1996, a High Court form which was

entitled "Statement required to ground application for judicial review

by a personal applicant". On 23 February 1996 the applicant appeared

before a single judge of the High Court. The judge made a number of

suggestions to the applicant including writing to the Sentence Review

Group. That judge also said that, if the applicant could prove

discrimination, the applicant would be granted an order of mandamus and

funds from the Attorney General to pursue the matter. The applicant

then wrote to that group and claims that, having had no success, he

wrote back to that High Court judge on 28 February 1996.

     The applicant claims that his affidavit sworn on 13 December 1995

was not before the Court on 23 February 1996; however, the Court order

of the same date refers to the Statement of grounds and verifying

affidavit and a letter dated 5 July 1996 from the Registrar of the High

Court confirms that that affidavit was before the Court. The applicant

also claims that the High Court judge never received his letter of

28 February 1996.

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 recognised "unenumerated rights" is the

right to communicate - Attorney General v. Paperlink Limited [1984]

ILRM 343 and McKenna v. An Taoiseach, High Court, 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 to

affect the lawfulness of 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 person'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.

     The Supreme Court in the case of Hutchinson v. the Department of

Justice and the Governor of Mountjoy Prison (a judicial review

application) was faced with allegations of suppression and censorship

of mail in circumstances where no indication had been given by the

Governor of what mail had been so suppressed or censored and why. The

court pointed out in its judgment of 16 October 1992 that a prisoner

serving a sentence must not be incommunicado and had a general right,

subject to prison discipline, to communicate with persons outside the

prison. It followed that the prisoner was entitled, at least, to

information about what letters had been withheld and why. Accordingly,

the plaintiff was accorded liberty to apply for an order of mandamus

directing the Governor to inform the plaintiff of the non-transmission

or censoring of any letter and to supply short reasons for the same.

     The Supreme Court in the case of Holland v. the Minister for

Justice and Others also considered a judicial review application for

an order of mandamus based on allegations that a letter written in

February 1993 by the plaintiff on behalf of a fellow prisoner had been

returned to him by the prison authorities. The court, in its judgment

of 9 July 1993, referred to both the above-cited Kearney judgment of

the High Court and its own judgment (cited above) in the Hutchinson

case and went on to point out that the justification for Rule 63 of the

1947 Rules was to ensure that nothing was done to undermine the

security or good discipline of the prison through correspondence.

However, the plaintiff was given leave to apply to the High Court for

an order of mandamus requesting reasons for the failure to transmit the

letter. That application was subsequently rejected by the High Court

on 28 January 1994 and, on appeal, by the Supreme Court on 13 May 1994

because the relevant letter had, by then, been transmitted by the

prison authorities. No further point was taken as regards the delay in

transmission of that letter by either court.

COMPLAINTS

     The applicant complains about interferences with his

correspondence and invokes Articles 6, 8 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 18 August 1994 and was

registered on 8 March 1995.

     On 2 September 1996 the Commission decided to communicate the

application and request the parties' observations on the admissibility

and merits of the applicant's complaints under Articles 6, 8 and 13

relating to interference with his correspondence and to declare the

remainder of his application inadmissible.

     The Government's observations were received on 12 November 1996

and those of the applicant in reply were received on 22 January 1997.

THE LAW

     The applicant complains about interference with his

correspondence. He submits that all his correspondence (including with

the Commission, the CPT and his solicitors) is systematically opened

and read by the prison authorities and that certain correspondence is

copied on to his prison file, suppressed and delayed. The applicant

submits that this constitutes a denial of his right of access to court

under Article 6 para. 1 (Art. 6-1) of the Convention and a denial of

his right to respect for private life and correspondence guaranteed by

Article 8 of the Convention and he complains, under Article 13 of the

Convention, that he has no effective remedy in these respects.

     The relevant parts of these Articles read as follows:

                     Article 6 para. 1 (Art. 6-1):

     "In the determination of his civil rights and obligations or of

     any criminal charge against him, everyone is entitled to a fair

     and public hearing within a reasonable time by an independent and

     impartial tribunal established by law. ..."

                          Article 8 (Art. 8):

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

     life, ... 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 ...,  for the

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

     rights and freedoms of others."

                         Article 13 (Art. 13):

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority ..."

     The Government submit with their observations copies of

correspondence to and from the applicant which are held on his prison

file. The correspondence dates from 1985 to 1996 and includes

substantial copy correspondence in relation to legal proceedings as

regards the applicant's marriage and children, correspondence from the

Commission (including a decision of the Commission in the applicant's

previous application and the Commission's letter communicating the

present complaints of the applicant) together with correspondence with

his lawyer and the domestic courts. A copy of the Governor's journal

is also submitted. It contains over 1500 entries recording the date and

address of correspondence from the applicant between 1993 and 1996.

     The Government, at the outset, outline the wider security context

and background to this complaint. They refer to the applicant's

conviction for murder and sentence. They point out that there are

22 convicted murderers and 45 convicted rapists in the prison where the

applicant is serving his sentence and argue that it is therefore

particularly important to ensure security in the prison. There are

three serious security problems in Irish prisons - drug abuse,

correspondence by convicted sexual offenders to their victims and

escape attempts (there having being two such attempts at Arbour Hill

in the recent past). Lifting such restrictions on correspondence would

inevitably lead to abuse.

     The Government primarily submit that the applicant has not

exhausted domestic remedies in that he has not taken proceedings to

challenge the constitutionality of Rule 63 of the 1947 Rules. The

decision of the High Court in the Kearney case (loc. cit.) was not

appealed to the Supreme Court and that court has not yet considered the

constitutionality of Rule 63. In any event, the Kearney case can be

distinguished by reason of the wide-ranging allegations of the present

applicant relating to suppression and seizure of mail.

     As regards Article 6 (Art. 6), in particular, the Government

submit that the right of access to court is not an absolute right (Eur.

Court HR, Golder v. the United Kingdom judgment, loc. cit. and

Ashingdane v. the United Kingdom judgment 28 May 1985, Series A no. 93,

p. 24, para. 57). They deny that any of the applicant's correspondence

was suppressed, seized or delayed or that any court application of the

applicant was impeded by the prison authorities. His relationship with

his solicitors was not impaired in its very essence. In such

circumstances, supervisory control pursuant to Rule 63 of the 1947

Rules constitutes a minimal and justifiable restriction on the

applicant's access to court.

     As regards Article 8 (Art. 8) of the Convention, the Government

accept that the prison rules relating to correspondence constitute an

interference with the applicant's right to respect for his

correspondence. However, the interference is in accordance with the law

and its aims are legitimate (namely, maintaining security and avoiding

criminal activity inside and outside the prison).

     Furthermore, the Government submit that the interference is

proportionate to those legitimate aims bearing in mind the margin of

appreciation as regards interference with correspondence in prisons

(Eur. Court HR, Silver and Others v. the United Kingdom judgment, loc.

cit., p. 38, para. 98). There is no reasonable means of detecting

contraband other than opening letters and the opening of this

correspondence has in no sense prevented the applicant from effectively

communicating. The interference in this case consists of opening of all

correspondence and stamping it; only when material is considered to be

a danger to prison security or to the rights of others is

correspondence ever actually referred to the prison governor. Only a

small portion of the correspondence will ever be read given the volume

of correspondence in and out of the prison.

     The Government also invoke Article 18 (Art. 18) of the Convention

pointing to the negative consequences of reducing control on

correspondence. Prisoners' access to legal advice and to court remains

intact - the present applicant instituted judicial review proceedings

and a personal injury action and if there was some impairment of the

solicitor/client relationship it arose out of the fact of imprisonment

itself. Further, the Government is not satisfied that a completely

unregulated channel to and from the Commission would not be abused and

they point out that the Government are better placed than the

Commission to assess the risks in Irish prisons in that respect. As to

the copying of correspondence on to the prisoner's file, the Government

submit that this is "primarily for the purpose of ensuring that the

prison authorities are in a position to deal with complaints by the

applicant that his mail has not been dispatched from the prison".

     Finally, and as regards Article 13 (Art. 13), the Government

submit that, since there is no arguable claim of a violation of the

Convention, the Article 13 (Art. 13) complaint is manifestly ill-

founded.

     The applicant disputes that a constitutional remedy would be

effective. The decision of the High Court in the above-cited Kearney

case is clear; it is settled legal opinion that this decision

represents the law in Ireland; and the reference to the provisions of

Rule 63 by the Supreme Court in the above-described Hutchinson and

Holland cases (judgments dated 19.10.92 and 9.7.93, respectively) and

relevant extracts from two leading constitutional law text-books are

indicative of this settled legal opinion.

     As to Article 6 para. 1 (Art. 6-1), the applicant submits that

the Government's submissions ignore the very clear jurisprudence of the

Commission and Court regarding interference with and censorship of

legal correspondence (Eur. Court HR, S v. Switzerland judgment of

28 November 1991, Series A no. 220). The grounds offered by the

Government do not provide sufficient justification for a violation of

the nature at issue here. In particular, none of the reasons offered

justify interference with correspondence between a prisoner and his/her

lawyer (Eur. Court HR, Campbell v. the United Kingdom judgment of

25 March 1992, Series A no. 233), no reasonable grounds having been

advanced by the Government to open the correspondence of the applicant

referred to above at (d) and (f) in the FACTS.

      The applicant notes that the correspondence at (a), (b) and (c)

above is correspondence with the Commission and the CPT and that no

justification has been offered by the Government for this interference

apart from the generalised submissions outlined above and the

possibility of forgery of envelopes. This latter submission was made

by the United Kingdom Government and was rejected by the Court in the

above-cited Campbell case. As to the correspondence at (e) above, the

applicant submits that the factors advanced by the Government do not

justify the opening of a religious magazine in a transparent envelope.

     The Commission 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.

     Insofar as the applicant alleges interferences with his

correspondence which were not authorised by Rule 63, the Commission

observes that judicial review proceedings were open to him to challenge

such interferences and, insofar as reasons were not given for stopping

or censoring correspondence, to obtain such reasons (see, Hutchinson

v. the Department of Justice and the Governor of Mountjoy Prison, loc.

cit.). No such proceedings have been instituted by the applicant.

     Insofar as the applicant challenges acts done in conformity with

Rule 63 of the 1947 Rules, 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 applicant 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.

     As to the applicant's submission that such a constitutional

remedy was and would be ineffective in light of the judgment of the

High Court in the Kearney case, the Commission observes as follows.

     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. Furthermore, the Hutchinson and

Holland judgments of the Supreme Court to which the applicant refers

were proceedings for judicial review. Accordingly, any observations of

the Supreme Court on the constitutionality of Rule 63 of the 1947 Rules

in such judicial review cases would have been obiter dicta and would

not, therefore, be binding on any subsequent Supreme Court before which

the constitutionality of Rule 63 was raised in properly constituted

declaratory proceedings.

     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, loc. cit.) 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 on to 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. 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 mainly legal

correspondence. 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.

     The applicant further argues that any such constitutional remedy

would be ineffective in view of the authorities' access to all his

legal correspondence. 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 involve

submissions of a mainly legal character, the Commission does not

consider that the fact that the authorities have access to his legal

correspondence would render a constitutional action ineffective.

Insofar as the applicant argues that judicial review proceedings would

be ineffective for the same reason, the Commission notes the successful

judicial review proceedings of Mr. Holland outlined above (judgment of

the Supreme Court of 9 July 1993) in a case where the authorities

similarly had access to Mr. Holland's legal correspondence

(No. 24827/94, Dec. 14.4.98), not yet published). Insofar as the

applicant complains under Article 6 (Art. 6) of the Convention that the

disclosure to the prison authorities of the contents of his legal

correspondence has resulted in the denial of effective access to court

as regards his personal injury action, the Commission finds that the

applicant has not shown that a successful constitutional challenge to

Rule 63 would have been ineffective to protect him from any prejudice

resulting from the interference with such correspondence.

     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.

     Accordingly, the Commission finds the applicant's complaints

under Articles 6, 8 and 13 (Art. 6, 8, 13) of the Convention as regards

interference with his correspondence inadmissible pursuant to Article

27 para. 3 of the Convention on grounds of non-exhaustion of domestic

remedies as required by Article 26 (Art. 26) 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