AS TO THE ADMISSIBILITY OF

                      Application No. 26320/95

                      by Erkki LAAKSO

                      against Finland

      The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

           Mrs   J. LIDDY, President

           MM    M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 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 3 June 1994 by

Erkki Laakso against Finland and registered on 26 January 1995 under

file No. 26320/95;

      Having regard to:

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

      the Commission;

-     the observations submitted by the respondent Government on

      11 January 1996 and the observations in reply submitted by the

      applicant on 8 May 1996, the additional observations submitted

      by the Government on 28 June 1996 and the applicant's additional

      observations of 3 and 5 June and 19 September 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Finnish citizen, born in 1965 and resident at

Lahti.

A.    The particular circumstances of the case

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

summarised as follows.

                                 I.

      In 1984 the applicant was convicted of various offences and

sentenced to imprisonment. On 15 February 1994 the Supreme Court

(korkein oikeus, högsta domstolen) dismissed his request for a

reopening of those proceedings.

                                 II.

      In 1989 the applicant requested that the presumption that his

mother's previous husband was his father should be quashed. The

District Court (kihlakunnanoikeus, häradsrätten) of Porvoo dismissed

the applicant's action. He appealed to the Court of Appeal (hovioikeus,

hovrätten) of Helsinki but later withdrew the appeal, following which

it was struck off (in 1989).

                                 III.

      In 1992 the City Court (raastuvanoikeus, rådstuvurätten) of

Hämeenlinna convicted the applicant, inter alia, of rape of a minor and

sentenced him to imprisonment. The Court of Appeal of Turku dismissed

his appeal. Leave to appeal to the Supreme Court was refused on

28 April 1994.

                                  IV.

      The applicant wished to institute private prosecution proceedings

against S, Chief Security Guard of the Parliament Building, for the

purpose of charging him with, inter alia, defamation, discrimination

as well as with an offence in office, all committed on

13 December 1991. When visiting the Parliament Building on that day,

the applicant had noticed photographs of himself which had been posted

on the inside of the security guards' counter at the front entrance.

S had informed him that due to his dangerous nature special security

measures had been taken in the building, including the posting of the

photographs of the applicant.

      The applicant's request of 31 January 1992 that the City Court

of Helsinki summon S to appear before the Court was refused on

3 March 1992, Judge M. considering that the request did not meet the

legal requirements. The applicant was afforded an opportunity to

specify his claims. On 11 and 25 March as well as 29 April 1992 L again

refused to issue a summons as the applicant had not supplemented his

request properly.

      Following a petition by the applicant, the Deputy Chancellor of

Justice (apulaisoikeuskansleri, justitiekanslersadjointen), on

21 October 1993, considered that a summons should have been issued in

spite of the somewhat vague wording of the applicant's request.  On 16

November 1993 the City Court issued the summons. It was served on S on

14 December 1993. Hearings were held on 14 January and 8 April 1994

before Division 6/2 of the Helsinki District Court (käräjäoikeus,

tingsrätt; formerly the City Court), presided by Judge R and further

comprising another professional judge and two lay judges. The applicant

was granted a cost-free trial but the representative suggested by him

could not be appointed as his consent had not been obtained. The

applicant contends that in the course of the first hearing he also

requested that a summons be issued against the Parliamentary Ombudsman

(eduskunnan oikeusasiamies, riksdagens justitieombudsman) but that this

was allegedly refused without reasons. The District Court also took

witness testimony.

      In February 1994 the applicant lodged private prosecution

proceedings before the Court of Appeal of Helsinki against Judge R,

charging her with an offence in office (see also VII below). Allegedly,

the minutes which she had kept from the District Court's hearing on

14 January 1994 in the case against S did not correspond to reality.

In her observations to the Court of Appeal Judge R apparently stated,

in March 1994, that the audio tapes from the District Court's hearings

had been destroyed.

      Judge R having stepped down in the applicant's case against S,

a third and a fourth hearing were held on 8 and 22 June 1994 before

Division 6/4 of the District Court. All judges were new in the case.

      During the oral proceedings before the District Court the charges

against S were extended to include also a purported offence against the

Act on Personal Files. In its judgment of 22 June 1994 the District

Court declined to examine the last-mentioned charge as it had not been

properly served on S. It dismissed the defamation charge, noting that

the proceedings had been brought on 14 December 1993, whereas the

charge had become time-barred on 13 December 1993. The charges for the

purported discrimination and offence in office were dismissed in the

absence of sufficient evidence. The applicant was ordered to compensate

S for his costs.

      The public prosecutor had not supported the applicant's charges

but three different prosecutors attended the District Court's

respective hearings. In the course of the proceedings the public

prosecutor and the Central Criminal Police refused to investigate the

origin of the photographs posted in the Parliament Building. It

furthermore appears that the applicant's request for an inspection to

be held was refused by the District Court and that the Data Protection

Ombudsman was not afforded an opportunity to be heard.

      The applicant appealed and requested that the Court of Appeal

listen to the audio tapes with the testimony given by the witnesses

examined before the District Court.

      In its judgment of 21 September 1995 the Court of Appeal, without

having held an oral hearing and without having listened to the tapes,

partly quashed the District Court's judgment, considering that the

charge for the alleged offence in office had not been sufficiently

precise and should therefore not have been examined on its merits. The

Court of Appeal upheld the remainder of the judgment, adding however,

that the discrimination charge should also have been dismissed already

as being time-barred.

      On 24 January 1996 the Supreme Court refused leave to appeal.V.

      In February 1993 the applicant brought private prosecution

proceedings before the Court of Appeal of Helsinki against Judge M,

charging her with an offence in office committed as she had refused to

issue the summons requested by the applicant in order to bring

proceedings against S (see IV above). The applicant requested that

Judge M be summoned to appear in person before the Court of Appeal. The

applicant also requested that M be ordered to compensate him for his

pain, including his mental suffering, and to compensate his costs.

      On 22 March 1994 the Court of Appeal considered that in refusing

to issue the requested summons M had acted wrongly out of carelessness.

However, as her behaviour had not amounted to negligence she was

acquitted. No oral hearing was held.

      The applicant requested leave to appeal to the Supreme Court,

arguing, inter alia, that an oral hearing should have been held before

the Court of Appeal or that, at any rate, the Supreme Court ought to

hold such a hearing.

      On 13 December 1994 the Supreme Court dismissed both the

applicant's request for an oral hearing and his appeal. It noted that

the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk)

did not clearly stipulate when a court of appeal, having been seized

with a matter as the first instance court, could decide the case merely

on the basis of written submissions. In practice, proceedings

concerning alleged offences in office were normally conducted in

writing. A court of appeal could decide to hold an oral hearing when

this was found necessary, for instance, for the purpose of clarifying

the matter or safeguarding the rights of the parties. The Supreme Court

concluded that an oral hearing before the Helsinki Court of Appeal had

not been necessary in the applicant's case against Judge M.

                                 VI.

      On 29 March 1994 the First Instance Court (käräjäoikeus, tings-

rätten) of Lahti dismissed the applicant's request that a summons be

issued in further paternity proceedings which he wished to institute.

The Court considered that the request did not meet the legal

requirements. The applicant did not appeal against this decision.

                                 VII.

      On 8 June 1995 the Court of Appeal, without having held an oral

hearing, acquitted R of the charges brought by the applicant (see IV

above). On 4 December 1995 the Supreme Court quashed the Court of

Appeal's judgment and remitted the case back for a new examination, as

the applicant had not been properly heard in the written proceedings

before the Court of Appeal.

                                 VIII.

      In August 1994 the applicant started serving a prison sentence.

In September 1994 he was transferred to the Riihimäki Central Prison,

where he was eventually placed on Ward I-2 for prisoners under special

supervision. This is a so-called closed ward with ten prisoners who

have expressed a wish to be separated from a larger number of prisoners

during, for instance, outdoor activities.   On 19 October 1994 the

applicant handed over a letter "for information" to the Director of the

Department for Prison Administration of the Ministry of Justice, who

was then inspecting the prison. In this letter the applicant

questioned, inter alia, the allegedly systematic reading of his

correspondence by prison staff which, so the applicant argued, was in

breach of domestic law. He requested to be informed of the measures

which the Department intended to take so as to ensure that his

correspondence would not be  unnecessarily and repeatedly read by

prison staff. On 29 September 1994 the Deputy Chief Guard had allegedly

expressed to him his concern about certain passages in a letter which

the applicant had been obliged to hand over to prison staff unsealed

for further dispatching. In that letter, addressed to the news editor

of one of the national TV channels, the applicant had argued that he

was being held in solitary confinement in violation of the law.

      In his letter to the Director of the Department for Prison

Administration the applicant furthermore referred to his request to be

present when his outgoing mail would be inspected. At a meeting with

the Prison Governor on 3 October 1994 the applicant had been informed

that the prison staff was not violating domestic law by reading

outgoing mail. On 4 October 1994 the Deputy Chief Guard had informed

the applicant of the dismissal of his request to be present during the

inspection of his mail.

      In a further letter to the Director of the Prison Administration

dated 22 November 1994 the applicant reiterated his request of

19 October for measures to be taken. He furthermore alleged that the

unlawful interference with his correspondence had continued and that

even letters from tribunals had been opened and read in his absence.

He finally referred to his application before the Commission which he

had supplemented on this point.

      On 21 November 1994 the applicant and his fellow prisoners on the

ward complained to the Board (johtokunta, direktionen) of the prison

about the allegedly systematic inspection of their outgoing

correspondence. Reference was again made to the prisoners' obligation

to place their outgoing correspondence unsealed in an internal mail box

for final dispatching by prison staff. In addition, the prisoners were

not allowed to attend the inspection of either outgoing or incoming

correspondence.

      In its reply of 24 November 1994 the Prison Board considered that

the practice of inspecting correspondence was in compliance with the

relevant legal provisions and rules. The Board referred to chapter 2,

section 9 (1) and (2) of the 1889 Decree on the Enforcement of

Punishments (asetus 39/1889 rangaistusten täytäntöönpanosta, förordning

39/1889 om verkställighet af straff, as amended in 1974). The Prison

Governor had ordered that the prisoners' outgoing correspondence should

be inspected. The Chief Library Guard was in charge of emptying the

mailboxes on the wards and of inspecting the letters. If the prisoners

were to leave their correspondence sealed in a mailbox on their ward

it would be impossible to inspect it. The correspondence was not read,

unless this was necessary for the prevention of crime or there was

another reason to suspect abuse of the prisoners' right to conduct

correspondence.

      On 2 December 1994 the applicant introduced an application before

the Commission on behalf of his fellow prisoners on Ward I-2

(Application No. 26739/95, Dec. 9.4.97, unpublished).  In an article

published in a leading Finnish daily on 5 December 1994 the applicant

again requested the Director of the Prison Administration to take

measures so as to ensure that a prisoner's right to respect for his

correspondence would no longer be violated without justification and

that all prisons adopt the same practice. On the latter point he again

referred to the Riihimäki Central Prison, where all outgoing

correspondence had to be left unsealed to prison staff even if there

existed no suspicion that their right to conduct correspondence might

be abused. The applicant contrasted this practice with the rule in

force in the Helsinki Central Prison, where prisoners' outgoing

correspondence was not being opened or inspected except on the Prison

Governor's order and on the basis of  a sufficiently strong suspicion

that the prisoner was preparing an escape or organising a delivery of

illegal substances.

      According to the applicant, he received, on 7 February 1995, a

letter from the Commission dated 31 January 1995. According to the

Government, the letter arrived to the prison on 31 January 1995 and was

given to the applicant on 6 February 1995. The parties agree that the

letter had been opened by prison staff in the applicant's absence.

      On 8, 9 and 10 February 1995 the applicant unsuccessfully

requested the Social Officer of the prison to grant him permission to

make photocopies of certain documents which he intended to enclose to

his request for pardon addressed to the President of the Republic.

      On 10 February 1995 the applicant was transferred to a cell on

"the special ward" allegedly intended for solitary confinement

purposes. No reasons were allegedly given until 15 February 1995, when

the Deputy Prison Governor informed him that the transfer had been due

to "rearrangements".

      According to the applicant, four other prisoners were also

transferred to "the special ward" on 10 February 1995 due to

"rearrangements". These prisoners were moved back to Ward I-2 on the

following day. During the applicant's placement in solitary confinement

it was allegedly made clear to him that he would be kept in such

conditions until his release, unless he requested a transfer to another

prison.

      According to the Government, the prison records do not indicate

that the applicant was subjected to any disciplinary punishment in the

Riihimäki Central Prison. According to the Chief Guard, whom the

Government have heard, it is possible that the applicant had felt

threatened on Ward I-2 and had therefore requested to be placed on "the

special ward" while awaiting his transfer to the Helsinki Central

Prison. However, in their additional observations of 28 June 1996 the

Government stated that the transfer of the applicant and certain other

prisoners to "the special ward" was due to a forthcoming inspection of

Ward I-2.

      According to the applicant, the conditions on "the special ward"

in the Riihimäki Central Prison are punitive in character. The cells

are some 150 centimetres underground and the windows are not

transparent. No water is available except during meals and there is no

electricity, TV or radio.

      According to the Government, "the special ward" is intended for

prisoners who are not participating in the collective prison

activities. Eleven cells are reserved for prisoners awaiting the

processing of a disciplinary punishment order. There are also normally

equipped cells with a table, a bed, a toilet and a washbasin. These

cells are reserved for prisoners awaiting a transfer or release or

going on or returning from leave.

      On 20 February 1995 the applicant was transferred to the Helsinki

Central Prison, where he was, at his own request, placed on a closed

ward for safety reasons.

      It appears that in a letter of April or May 1995 the Director of

the Prison Department found no reason to take any action in response

to the applicant's letters of October and November 1994.

      In September 1995 the applicant was released on parole.

B.    Relevant domestic law

      1.   Inspection of prison correspondence

      On 1 May 1995 the 1889 Decree on the Enforcement of Punishments

was afforded the status of an Act (no. 128/1995). According to

chapter 2, section 9 (1) and (2) (in force as from 1974), the Prison

Governor or a prison official appointed by him may inspect

correspondence or packages to and from a prisoner. Letters shall not

be read, unless this is necessary for the purpose of preventing crime

or there is a reason for suspecting that the prisoner's right to send

and receive correspondence is being abused. If, for one of these

reasons, the letter or package is not delivered, it shall be returned

to the sender or handed over to the prisoner at the time of his or her

release, unless the nature of the correspondence renders this

impossible.

      In 1993 the inspection of prison correspondence also became

governed by a general instruction issued by the Department for Prison

Administration (32/4/1992). This instruction prohibited the inspection

of a prisoner's letter to, among other bodies, the Commission.

      Prior to the 1995 amendments to the 1889 Decree letters from

prisoners to an authority supervising the prison or to his or her

counsel were to be immediately forwarded without inspection. As from

1 May 1995 it is also prohibited to inspect incoming mail from counsel

and authorities supervising the prisons. The same is true for any

correspondence between prisoners and international human rights bodies

to which they are entitled to complain.

      2.   Remedies

      A prisoner may complain of his treatment to the Prison Governor

or the Prison Board and further to the Department for Prison

Administration. He can also petition the Parliamentary Ombudsman, who

is particularly responsible for supervising the prisons. The Ombudsman

is empowered to order that charges be brought against, for instance,

prison staff and is assisted by deputies. A local public prosecutor may

also bring criminal charges of his own motion. Finally, the complainant

is entitled to institute private prosecution proceedings independently

of the Ombudsman's or the public prosecutor's view.

      According to the Constitution Act (Suomen hallitusmuoto,

Regeringsform för Finland 94/1919), anyone who has suffered an

infringement of his rights, or damage, through an illegal act or

negligence on the part of a civil servant, is entitled to demand that

the civil servant be convicted and held liable for damages, or to

report him for the purpose of having charges brought against him

(section 93, subsection 2). Under the Tort Liability Act (vahingon-

korvauslaki, skadeståndslag 412/1974) proceedings for damages may also

be instituted against the State for actions taken by civil servants

(chapters 3 and 4).

COMPLAINTS

1.    In his submissions of 28 December 1994 the applicant complained

that he was denied an oral hearing before the Supreme Court in the

private prosecution proceedings which he brought against Judge M (see

V above). The denial of an oral hearing discriminated against him on

the basis of his origin and political background. He invoked

Articles 6, 13 and 14 of the Convention.

2.    In his original submissions the applicant complained that the

various court proceedings described above were not in conformity with

the Convention and Protocol No. 7. On 19 September 1996 he withdrew

this complaint in so far as it concerned the proceedings described in

VII above. In so far as can be ascertained from his submissions of

3 June 1996 he then made the following more specific complaints

relating to the private prosecution proceedings against S (see IV

above):

      (a)  There was an excessive delay in issuing the summons

requested by the applicant;

      (b)  the public prosecutor and the Central Criminal Police

refused to investigate the origin of the photographs picturing the

applicant and the prosecution also committed other offences in office;

      (c)  the applicant was denied assistance by a public legal aid

counsel of his own choosing;

      (d)  the applicant's request to have a summons issued also

against the Parliamentary Ombudsman was refused;

      (e)  the applicant's request for an inspection to be held by the

District Court was refused;

      (f)  the District Court did not offer an opportunity for the Data

Protection Ombudsman to be heard in the case;

      (g)  the District Court's composition and the public prosecutor

changed in the course of the proceedings;

      (h)  the Court of Appeal was unable to listen to the audio tapes

from the District Court's first hearings as they had been destroyed by

Judge R;

      (i)  the Court of Appeal should have held an oral hearing or

remitted the case back to the District Court;

      (j)  the outcome of the case was wrong, including the applicant's

obligation to compensate S for his costs; and

      (k)  the Supreme Court gave no reasons for refusing the applicant

leave to appeal.3.    (a) In his submissions of 18 November 1994 the

applicant furthermore complained under Article 8 of the Convention

about the inspection of both his incoming and outgoing correspondence.

On 26 February 1995 he made particular reference to the opening of a

letter from the Commission dated 31 January 1995.

      (b)  In his submissions of 18 November 1994 and 26 February 1995

the applicant also complained, more generally, about the regime both

in the Riihimäki and Helsinki Central Prisons under which prisoners

were obliged to send off their letters in unsealed envelopes even after

their contents had been inspected. This complaint was withdrawn on

8 May 1996.

      (c) In his submissions of 24 August 1995 the applicant also

alleged that telephone calls which prisoners made from the Helsinki

Central Prison were being tapped. This complaint was withdrawn on

8 May 1996.

4.    In his submissions of 26 February 1995 the applicant furthermore

complained about his solitary confinement in the Riihimäki Central

Prison from 10 to 20 February 1995. The confinement allegedly violated

domestic law and was an act of revenge by the prison authorities in

response to the applicant's complaints to the Commission and domestic

bodies. He did not wish to invoke any particular Convention provision.

In his observations of 8 May 1996 he invoked solely Article 25 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 3 June 1994 and registered on

26 January 1995.

      On 18 October 1995 the Commission (First Chamber) decided to

communicate the applicant's third and fourth complaints to the

respondent Government.

      The Government's written observations were submitted on

11 January 1996. The applicant replied on 8 May after extensions of the

time-limit fixed for that purpose. The Government submitted additional

observations on 28 June 1996. The applicant submitted additional

observations on 3 and 5 June and 19 September 1996.

      On 23 January 1996 the Commission granted the applicant legal

aid.

THE LAW

      In view of the applicant's withdrawal of certain grievances on

8 May and 19 September 1996 the following complaints remain to be dealt

with by the Commission:

1.    The applicant has complained that he was refused an oral hearing

before the Supreme Court in the private prosecution proceedings which

he brought against Judge M. The denial of an oral hearing also

discriminated against him on the basis of his origin and political

background. He invokes Articles 6, 13 and 14 (Art. 6, 13, 14) of the

Convention.

      The Commission has first examined the lack of an oral hearing

before the Supreme Court. Article 6 para. 1 (Art. 6-1) reads, as far

as relevant, as follows:

      "In the determination of his civil rights and obligations

      ... against him, everyone is entitled to a fair and public

      hearing ... by an independent and impartial tribunal

      established by law. ..."

      The Commission need not determine whether Article 6 para. 1

(Art. 6-1) is applicable in the present case, as the complaint is in

any event inadmissible for the following reasons.

      The Commission recalls Finland's reservation to Article 6

(Art. 6) which reads, in so far as relevant, as follows:

      "In accordance with Article 64 of the Convention, the

      Government of Finland makes the following reservation in

      respect of the right to a public hearing guaranteed by

      Article 6, paragraph 1 (Art. 6-1) of the Convention.

      For the time being, Finland cannot guarantee a right to an

      oral hearing in so far as the current Finnish laws do not

      provide such a right. This applies to:

      1.   proceedings before..., the Supreme Court, ... in

      accordance with ... chapter 30, section 20 of the Code of

      Judicial Procedure, ...

      The provisions of the Finnish laws referred to above are

      attached to this reservation as a separate annex."

      According to the annex, chapter 30, section 20 of the Code of

Judicial Procedure reads as follows:

      "The Supreme Court shall, where appropriate, conduct an

      oral hearing, where parties, witnesses and experts may be

      heard and other accounts received. The oral hearing may be

      restricted to part of a case subject to appeal.

      The Supreme Court may also rule that the hearing of a

      party, witness or expert shall take place in some other

      court."

      It has not been argued that the applicant had any unconditional

right under domestic law to obtain an oral hearing before the Supreme

Court. The absence of an oral hearing before the Supreme Court is

therefore covered by Finland's reservation. Accordingly, the Commission

finds no appearance of a violation of Article 6 para. 1 (Art. 6-1) in

respect of the lack of an oral hearing before that tribunal. Nor can

the Commission find any indication of a violation of Article 13 or

Article 14 (Art. 13, 14).

      It follows that this complaint must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.    Excluding the proceedings described in VII above, the applicant

has also complained, more generally, that the various court proceedings

were not in conformity with the Convention and Protocol No. 7. On

3 June 1996 he lodged various more specific complaints regarding the

proceedings described in IV.

      The Commission recalls that, in accordance with the generally

recognised rules of international law, the Convention only governs, for

each Contracting Party, facts subsequent to the entry into force of the

Convention with regard to that Party (see, e.g., No. 9453/81,

Dec. 13.12.82, D.R. 31, pp. 204, 208). The Convention entered into

force with regard to Finland on 10 May 1990. Moreover, under Article 26

(Art. 26) of the Convention the Commission may only deal with the

matter after all domestic remedies have been exhausted, according to

the generally recognised rules of international law, and within a

period of six months from the date on which the final decision was

taken.

      As regards the allegedly excessive delay in the issuing of the

summons requested by the applicant in the proceedings described in IV

above, the Commission notes that this complaint focuses on a period

which ended with the actual issuing of the summons on 16 November 1993.

However, as the complaint to the Commission was introduced only on

3 June 1996, i.e. more than six months later, it must be rejected as

being belated pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention.

      The Commission furthermore considers that the absence of reasons

for the Supreme Court's refusal to grant the applicant leave to appeal

in the proceedings described in IV does not raise any issue under the

Convention or any of its Protocols. This complaint must therefore be

rejected as being manifestly ill-founded within the meaning of

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

      As regards the outcome of the proceedings described in IV, the

Commission recalls that, in accordance with Article 19 (Art. 19) of the

Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties to the Convention. In particular,

it is not competent to deal with an application alleging that errors

of law or fact have been committed by domestic courts, except where it

considers that such errors might have involved a possible violation of

any of the rights and freedoms set out in the Convention (see, e.g.,

Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A

no. 140, p. 29, para. 45). On the point in question the Commission

finds no appearance of a violation of the rights and freedoms set out

in the Convention or its Protocols. This complaint must therefore also

be rejected as being manifestly ill-founded within the meaning of

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

      The Commission notes that none of the applicant's further

grievances concerning the proceedings described in IV were put to the

Court of Appeal and the Supreme Court. It follows that domestic

remedies have not been exhausted in this respect and these complaints

must also be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention.

      Finally, recalling its conclusion in para. 1 above and in so far

as the Commission is competent to examine the other proceedings

complained of, it finds that they do not disclose any appearance of a

violation of the rights and freedoms set out in the Convention or its

Protocols. Accordingly, in so far as no other grounds for

inadmissibility are at hand, the applicant's remaining grievances must

also be rejected as being manifestly ill-founded within the meaning of

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

      It follows that the whole of this complaint must be rejected in

accordance with Article 27 (Art. 27) of the Convention.

3.    The applicant has furthermore complained under Article 8

(Art. 8) of the Convention about the inspection of his correspondence,

including a letter from the Commission of 31 January 1995.

      Article 8 (Art. 8) of the Convention reads, in so far as

relevant, 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 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 Government submit that domestic remedies have not been

exhausted. The applicant did not petition the Parliamentary Ombudsman

and never lodged a complaint with the police. He also failed to

institute proceedings against the public officials responsible for the

inspection or, in the alternative, proceedings against the State in

order to obtain damages. He could also have complained to the Prison

Governor, the Prison Board and the Department for Prison

Administration.

      In the alternative, the Government submit that the complaint is

manifestly ill-founded. They argue, on the one hand, that the

investigation which they conducted during the proceedings before the

Commission produced no evidence in support of the applicant's

allegation. On the other hand, the Government concede that a letter

from the Commission of January 1995 was opened before being given to

the applicant. This incident was a mistake by prison staff who were not

sufficiently informed of the international human rights supervisory

bodies. The Government submit, however, that the letter was not read

before being handed over to the applicant. There existed no practice

of opening the Commission's letters to him. On the contrary, domestic

law prohibited such a practice. The minor error which occurred in

respect of one letter from the Commission did not reach the threshold

required for finding a violation of Article 8 (Art. 8). The Government

have subsequently seen to it that staff in the Riihimäki Central Prison

have been made aware of the legal requirements pertaining to the

inspection of prisoners' correspondence.

      Finally, the Government consider that the applicant has not

specified the nature of the other alleged interference with his

correspondence. They recall that in any event some measure of control

over prison correspondence is called for and is not of itself

incompatible with the Convention.

      The applicant contends that he exhausted the domestic remedies

by petitioning the Director of the Prison Administration in October and

November 1994, by complaining to the Prison Board in November 1994. He

also refers to his newspaper article published in December 1994 in

which he again urged the Director of the Prison Administration to take

measures so as to ensure respect for prison correspondence. The

applicant finally argues that he could not be required to petition also

the Parliamentary Ombudsman, given that the then Ombudsman and himself

were enemies and the Ombudsman would therefore have been biased.

      As regards the merits of his complaint, the applicant argues that

the inspection of his correspondence was neither foreseeable nor

proportionate to the aim pursued. As the letters were opened in his

absence he could not know whether and to what extent they were read by

prison staff. The Prison Governor and the Prison Board retained an

almost unlimited margin of appreciation. Not even the 1995 amendments

to the relevant law have rendered sufficiently foreseeable the

provisions governing the inspection of prison correspondence. Finally,

effective respect for his correspondence should have entailed affording

him a right to have photocopies taken of certain documents relating to

his request for pardon in February 1995.

      The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with a complaint after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law. Article 26 (Art. 26) must be applied in a

manner corresponding to the reality of the applicant's situation in

order to guarantee him effective protection of his rights and freedoms

set forth in the Convention. Where there is a choice of remedies,

Article 26 (Art. 26) must be applied to reflect the practical realities

of the applicant's position. The applicant must make "normal" use of

those remedies which are apparently effective and sufficient. It may

thus be sufficient for the purposes of Article 26 (Art. 26) if the

applicant has made full use of the possibility to seek the institution

of criminal proceedings against the prison staff, thus putting his

complaints in the hands of an authority which was competent to pursue

the matter. In such a situation he might not be required to embark on

further attempts to obtain redress (see No. 24760/94, Dec. 27.6.96,

D.R. 86-A, pp. 54, 71 and the further references therein). The burden

of proving the existence of available and sufficient remedies lies upon

the State (Eur. Court HR, Deweer judgment of 27 February 1980, Series

A no. 35, p. 15, para. 26).

      The Commission notes that, as regards the applicant's general

grievance concerning the allegedly systematic inspection of his mail

in the Riihimäki Central Prison, he complained, in 1994, both to the

Prison Board and the Director of the Prison Administration. The

Commission considers, however, that these bodies cannot be considered

to have provided a remedy within the meaning of Article 26

(Art. 26). As furthermore regards the opening of the Commission's

letter of January 1995, the Commission finds no indication that the

applicant has complained about this incident to any domestic authority

even after it was acknowledged by the Government.

      It is true that in spite of having acknowledged the opening of

the Commission's letter the Government, for their part, do not seem to

have taken any action either so as to have proceedings brought against

the responsible prison staff. However, Article 26 (Art. 26) must be

interpreted as placing the obligation to exhaust the domestic remedies

solely on the applicant. In the circumstances of the case the applicant

could have petitioned the Parliamentary Ombudsman, lodged a complaint

with the police or instituted private prosecution proceedings against

the prison staff. Given the existence of deputies to the Ombudsman, the

Commission is not convinced by the reason invoked by the applicant as

to why he did not petition the Ombudsman's office. The applicant thus

had various remedies at his disposal. At least part of these must be

considered effective and adequate for the purposes of Article 26 in

(Art. 26) respect of this aspect of the complaint (cf. Eur. Court HR,

A. v. France judgment of 23 November 1993, Series A no. 277-B, p. 48,

para. 32; No. 25052/94, Dec. 5.7.95, D.R. 82-A, p. 102 at pp. 114-115).

Accordingly, domestic remedies have not been exhausted as required by

Article 26 (Art. 26) of the Convention.

      It follows that this complaint must be rejected pursuant to

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

4.    The applicant has furthermore complained about his solitary

confinement in the Riihimäki Central Prison in February 1995. The

confinement allegedly violated domestic law and was an act of revenge

by the prison authorities in response to his complaints to the

Commission and domestic bodies.

      The Government considers that this complaint is manifestly

ill-founded. They initially argued that the applicant's placement in

solitary confinement was based on his own wish and that it was lawful

and appropriate. Later the Government submitted that the applicant had

been removed from his normal ward due to a forthcoming inspection which

was to be held on that ward. In any event, he was able to avail himself

of his right under Article 25 (Art. 25) of the Convention to lodge and

pursue his application before the Commission.

      The applicant refutes the Government's initial assertion that his

placement on "the special ward" was based on his own wish. He had no

reason to ask for a transfer as he was getting along well with his

fellow prisoners on the closed ward No. I-2. By transferring him away

from Ward I-2 the Prison Governor attempted to prevent him from

pursuing both his own application  before the Commission as well as

No. 26739/95 which he had lodged on behalf of his fellow prisoners. He

therefore contends that his transfer and the treatment to which he was

subjected on "the special ward" violated his right to individual

petition under Article 25 (Art. 25).

      The Commission takes note of the discrepancies between the

submissions of the Government as to the reasons for the applicant's

placement on "the special ward". The Commission finds no evidence,

however, that his placement on that ward made him suffer any prejudice

in regard to the presentation of his application before the Commission

or that he was in any way frustrated in the exercise of his right of

individual petition contrary to Article 25 para. 1 (Art. 25-1)  in

fine.

      For these reasons, the Commission, by a majority,

      DECIDES TO TAKE NO FURTHER ACTION in respect of the alleged

      interference with the effective exercise of the right of

      individual petition; and

      DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                        of the First Chamber