Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26739/95

by Esko HELIN and Others

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 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

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 2 December 1994

by Esko HELIN and Others against Finland and registered on

20 March 1995 under file No. 26739/95;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are set out in the Annex. They are represented by

Mr Erkki Laakso in Lahti.

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

summarised as follows.

The applicants have been serving prison sentences in the

Riihimäki Central Prison. Some of them have now been released and one

applicant has been transferred to another prison.

On 21 November 1994 the applicants' representative before the

Commission, himself imprisoned at the time, complained to the Board

(johtokunta, direktionen) of the Riihimäki Central Prison about the

systematic inspection of correspondence. Contrary to the practice in

certain other Finnish prisons, the prisoners had to place their letters

unsealed in an internal mail box for final dispatching by prison staff.

This practice allegedly violated the prisoners' right to respect for

their privacy as guaranteed to them under the Convention.

In a letter to the applicants' representative dated 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). According to these provisions, 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. Letters from the prisoner to an authority supervising the

prison or to his or her counsel must be immediately forwarded without

inspection.

On 1 May 1995 the above-mentioned Decree was renamed as the Act

on the Enforcement of Punishments and amended in several respects

(no. 128/1995). The provisions of the previous Decree now also prohibit

the inspection of incoming mail from counsel and authorities

supervising the prisons as well as the inspection of correspondence

between prisoners and international human rights bodies to which they

are entitled to complain.

A prisoner in a Finnish prison must ask for permission to make

a telephone call. Up to 1 May 1995 interception of calls was regulated

by a circular of the Ministry of Justice (of 24 June 1975). A call

which was to be intercepted either had to be made/received in the

presence of prison staff or staff could listen in on it by using an

extension. In the latter case the prisoner was to be informed of the

intended interception. Save for exceptional reasons calls between a

prisoner and his counsel could not be intercepted.

Pursuant to the above-mentioned 1995 Act a prisoner's telephone

call may now be intercepted only if this is deemed necessary in order

to prevent crime or there are special grounds for suspecting misuse of

the prisoner's right to make telephone calls. The prisoner and the

other party shall be notified of any intended interception. Calls to

and from a supervising authority or counsel shall not be intercepted

(section 9 (3)).

COMPLAINTS

1. The applicants complain that their right to respect for their

correspondence has been violated in the Riihimäki Central Prison.

Except for letters addressed to their counsel, the Minister of Justice,

the Department for Prison Administration, the President of the Republic

and the European Commission and Court of Human Rights, the applicants

were unable to seal their outgoing correspondence, with the result that

prison staff allegedly read it in their absence. Moreover, the

applicants have not been allowed to attend the inspection of incoming

correspondence - other than that emanating from the above-mentioned

sources - in order to verify that it was not being read.

2. The applicants also complain that telephone calls made by them

have been intercepted by prison staff.

The applicants invoke Article 8 of the Convention.

THE LAW

1. The applicants complain that their right to respect for their

correspondence has been violated due to the practice of systematic

inspection of certain categories of mail in the Riihimäki Central

Prison. They invoke Article 8 (Art. 8) of the Convention which reads,

in so far as relevant, as follows:

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

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 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."

Inspection and reading of prisoners' correspondence constitutes

an interference with the exercise of their right to respect for their

correspondence. Such an interference would contravene Article 8

(Art. 8) unless it was "in accordance with the law", pursued one or

more of the legitimate aims referred to in Article 8 para. 2

(Art. 8-2) and, furthermore, was "necessary in a democratic society"

in order to achieve them (see, Eur. Court HR, Silver and Others v. the

United Kingdom judgment of 25 March 1983, Series A no. 61, p. 32, para.

84; Kruslin v. France judgment of 24 April 1990, Series A no. 176-A,

p. 20, para. 26; Huvig v. France judgment of 24 April 1990, Series A

no. 176-B, p. 52, para. 25; and Campbell v. the United Kingdom judgment

of 25 March 1992, Series A no. 233, p. 16, para. 34). Nevertheless,

some measure of control of prisoners' correspondence is called for and

is not of itself incompatible with the Convention, particularly having

regard to the ordinary and reasonable requirements of imprisonment (see

the Silver and Others judgment, op. cit., p. 38, para. 98 and the

Campbell judgment, op. cit., p. 18, para. 45).

As regards notably the question whether an interference with

prisoners' correspondence would be "in accordance with the law" within

the meaning of Article 8 para. 2 (Art. 8-2), the Commission recalls

that this provision requires, first of all, that the interference

should have some basis in domestic law; that the law should be

adequately accessible and that it should be formulated with sufficient

precision to enable the citizen to regulate his conduct (see Eur. Court

HR, Silver and others judgment, op. cit., p. 33, paras. 85-88).

Nevertheless, while a law which confers a discretion must indicate the

scope of that discretion, it is impossible to attain absolute certainty

in the framing of the law, and the likely outcome of any search for

certainty would be excessive rigidity (see, among many other

authorities, the Silver and Others judgment, op. cit., p. 33,

para. 88).

In the present case the Commission notes that domestic law

empowers the Prison Governor or a prison official appointed by him to

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 reason to suspect 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.

The Commission observes, moreover, that letters from the prisoner

to an authority supervising the prison or to his or her counsel must

be immediately forwarded without inspection. Finally, as from

1 May 1995 the relevant Act also prohibits the inspection of incoming

mail from counsel and authorities supervising the prisons as well as

the inspection of correspondence between prisoners and, among other

bodies, the Commission.

In the present case the Commission notes that the applicants had

to place part of their outgoing correspondence unsealed in an internal

mail box for final dispatching by prison staff. In addition, they were

not allowed to attend the inspection of part of their incoming

correspondence in order to verify that it was not being read. However,

as recalled above, some measure of control of prisoners' correspondence

is called for and is not of itself incompatible with the Convention

(see, e.g, the Campbell judgment referred to above).

Indeed the present applicants do not allege that their

correspondence with their counsel, authorities supervising the prison

or the Commission has been inspected and possibly read. Nor do they

complain of correspondence having been returned to its sender without

being delivered. As for the remainder of their purported

correspondence, the Commission finds that they have failed to provide

details of any letters which they suspect might have been inspected and

possibly read by prison staff. On this point the applicants' complaint

has not been sufficiently substantiated. In these particular

circumstances there is no appearance of a violation of Article 8

(Art. 8) of the Convention.

It follows that this complaint must be rejected as being

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

(Art. 27-2) of the Convention.

2. The applicants also complain that telephone calls made by them

have been intercepted by prison staff, this being contrary to the

above-cited Article 8 (Art. 8) of the Convention.

The Commission recalls that communication by telephone is

included in the concepts of "private life" and "correspondence" within

the meaning of Article 8 para. 1 (Art. 8-1) (see, e.g., Eur. Court HR,

Malone v. the United Kingdom judgment of 2 August 1984, Series A no.

84, p. 30, para. 64).

In the present case the Commission notes that, according to the

practice up to 1 May 1995 (laid down by the Prison Department's

circular letter of 1975), calls which were to be intercepted had to be

made/received in the presence of prison staff. Alternatively, staff

could listen in on the call by using an extension but only after having

notified the prisoner of the intended interception. Thus, any

interception of a prisoner's calls was necessarily brought to his or

her attention. Furthermore, save for exceptional reasons calls between

a prisoner and his or her counsel could not be intercepted. As from

1 May 1995 calls to and from a supervising authority shall not be

intercepted either.

The Commission finds that the present applicants have not in any

way specified even the nature of the calls which have allegedly been

intercepted either before or after the entry into force of the 1995 Act

(cf. also No. 25652/94, Dec. 12.4.96, not published). In these

circumstances the Commission considers that the applicants' complaint

has not been sufficiently substantiated. Accordingly, there is no

indication of any violation of Article 8 (Art. 8) of the Convention on

this point either.

It follows that this complaint must also be rejected as being

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.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber ANNEX

The applicants are:

1. Mr Esko J. HELIN; a prisoner in the Riihimäki Central

Prison;

2. Mr Juha P. PITKÄNIEMI, currently resident in Rauma;

3. Mr Kari KNUUTILA; a prisoner in the Riihimäki Central

Prison;

4. Mr Matti KIRJAKOFF; currently resident in Espoo;

5. Mr Timo PUNKKINEN; a prisoner currently in the Helsinki

Central Prison;

6. Mr Ari PIETARILA; currently resident in Turenki;

7. Mr Jari RYTTERHEIM; currently resident in Turku; and

8. Mr Juha LIEDES, currently resident at Ii.

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HELIN AND OTHERS v. FINLAND

HELIN AND OTHERS v. FINLAND

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