AS TO THE ADMISSIBILITY OF

                      Application No. 23198/94

                      by László BECK

                      against Hungary

     The European Commission of Human Rights (First Chamber) sitting

in private on 15 January 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   E. BUSUTTIL

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           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;

-    the application introduced on 21 June 1993 by László BECK against

     Hungary and registered on 6 January 1994 under file No. 23198/94;

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

     the Commission;

-    the observations submitted by the respondent Government on

     14 July 1994 and the observations in reply submitted by the

     applicant on 22 September 1994 and by his representative on

     28 February 1996;

-    the supplementary observations of 7 May 1996, submitted by the

     respondent Government;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1953, is a Hungarian national. He resides

in Kaposvár, Hungary. When lodging his application, he was serving a

sentence in the Budapest Prison (Budapesti Fegyház és Börtön). Before

the Commission he has been represented by Mr. István Horváth and

Mr. Attila Horváth, lawyers practising in Budapest, as from December

1995.A.   Particular circumstances of the case

     The facts, as they have been submitted by the parties, may be

summarised as follows.

1.    In 1990 criminal proceedings were instituted against the

applicant on charges of larceny. It appears that in 1991 the Kaposvár

District Court (Kaposvári Városi Bíróság) convicted him of larceny and

sentenced him to six years' imprisonment, as confirmed by the Somogy

County Regional Court (Somogy Megyei Bíróság) in 1992.

     In March 1992, apparently subsequent to the applicant's final

conviction, one of his accomplices, who had been co-accused and heard

as a witness in the above proceedings, informed the applicant that he

had been allegedly forced by police officers to give false evidence.

     Shortly afterwards the applicant initiated criminal proceedings

before the Investigation Office of the Kaposvár Prosecution (Kaposvári

Ügyészségi Nyomozó Hivatal) against the police officers, who had

conducted the investigations in his case. He accused the police

officers in question of having committed the offence of abuse of

official power (hivatali visszaélés) in that they had influenced his

accomplice to state that he had committed the offences together with

the applicant.

     On 3 February 1993 the Investigation Office discontinued the

investigations against the police officers in question. The Office

found that the applicant had failed to substantiate his allegations.

     On 10 March 1993 the Kaposvár District Public Prosecutor's Office

(Kaposvári Városi Ügyészség) dismissed the applicant's complaint about

the decision of 3 February 1993.

     On 27 April 1993 the Somogy County Public Prosecutor's Office

(Somogy Megyei Foügyészség), upon the applicant's further complaint,

quashed the decisions of 3 February and 10 March 1993 and instructed

the Kaposvár District Public Prosecutor's Office to provide for a full

investigation of the matter.

     On 13 September 1993 the Somogy County Public Prosecutor's

Office, in the resumed proceedings, again discontinued the

investigations against the police officers in question. On 9 February

1994 the Attorney General's Office (Legfobb Ügyészség) dismissed the

applicant's complaint.

2.   Whilst detained in the Budapest Prison, apparently from August

1992 onwards, the applicant exchanged correspondence with his family

and also sent and received other mail.

     In her correspondence, the applicant's wife complained that the

applicant had allegedly received some letters with considerable delay,

whereas some others had allegedly never reached him, and that his

letters to his family were also delayed. She also complained to the

authorities of the Budapest Prison about the alleged interference  with

her correspondence with the applicant.

     In particular, in her letter of 7 August 1992, the applicant's

wife enquired whether the applicant had received one of her previous

letters containing photographs of their daughter. In her letter of

24 August 1992 she, referring to the applicant's letter in reply,

complained that the applicant had apparently not received the said

letter containing the photographs and that it took the applicant's

letter in reply ten days to reach her. In her letter of 29 September

1992, she enquired why the applicant had not answered her letter mailed

in early September. In her letter of 9 November 1992, received by the

applicant on 17 November 1992, she expressed the fear that her three

letters mailed during October 1992 might not have been handed over to

her husband. In her letter of 15 November 1992 she complained in

general terms that letters might not have been handed over to the

applicant.

     The applicant allegedly complained about the alleged interference

with his correspondence to the prison authorities.

     On 5 November 1992 the applicant lodged a complaint regarding the

interference with his correspondence with the Somogy County Public

Prosecutor's Office. On 4 December 1992 the Public Prosecutor's Office

informed him that it would take no action upon the complaint. The

Prosecutor's Office found that it was not clear that the complaint had

in fact concerned the alleged on-going interferences within the

Budapest Prison, where the applicant was actually serving his sentence.

     Moreover, the official letter containing the decision of the

Investigation Office of the Kaposvár Prosecution, dated 3 February

1993, apparently received at the Budapest Prison on Friday, 19 February

1993, was opened by the prison authorities. The text of the decision

was handed over to the applicant allegedly three days after its

arrival.

     On 9 March 1993 the applicant raised complaints about the

interference with his correspondence before the Budapest Public

Prosecutor's Office. On 26 May 1993 the penitentiary supervising public

prosecutor (bv. felügyeleti ügyész), on the occasion of one of his

regular visits to the Budapest Prison on behalf of the Budapest Public

Prosecutor's Office, heard the applicant and established that no

interferences by the prison authorities had occurred. The applicant

accepted the prosecutor's findings.

     Meanwhile, the official letter containing the decision of the

Somogy County Public Prosecutor's Office, dated 27 April 1993, was

received at the prison and opened by the prison authorities on 1 May

1993. The text of the decision was handed over to the applicant

allegedly ten days after its arrival.

     Apparently in October 1993 the applicant was transferred to the

Márianosztra Prison (Márianosztrai Büntetésvégrehajtási Intézet).

     Furthermore, the applicant's letter to the Commission, dated

18 October 1993, in which he complains inter alia about previous

interferences with his correspondence, reached the Commission on

8 November 1993. The date of mailing was illegible on the envelope.

     According to the applicant's submissions of 6 November 1993, his

two letters addressed to his wife, dated 1 November 1993, were

allegedly stopped by the prison authorities in the Kaposvár Prison,

where he had been temporarily transferred.

     On 29 June 1995 the Governor of the Budapest Prison heard the

applicant concerning his complaints about interference with his

correspondence.

     On 12 April 1996 the penitentiary supervising public prosecutor

heard the applicant who stated not to have any actual complaints about

the interference with his correspondence in the Budapest Prison.

B.   Relevant domestic law and practice

     According to S. 36 para. 1 (b) of Law-Decree No. 11 of 1979 on

the enforcement of punishments and measures (a büntetések és

intézkedések végrehajtásáról szóló 1979. évi 11. törvényereju

rendelet), as amended, inmates are entitled to correspond with their

relatives and persons designated by them and approved by the prison

authorities; the frequency and length of letters are not subject to any

restrictions.  S. 36 para. 5 provides for a control of inmates'

correspondence for reasons of security, except for letters sent to

public authorities and to international organisations; inmates are

entitled to be informed about the possibility of control.  According

to S. 36 para. 1 (g), the inmate may state, or complain about, alleged

violations of his rights with the prison authorities or with other

state organs.

     Order No. 8/1979. /VI.30./IM  (8/1979. /VI.30./IM r.), issued by

the Minister of Justice (igazságügyi miniszter), sets out the Prison

Rules.  According to Rule 22 of the Prison Rules, an inmate may lodge

complaints and apply for the remedying of any individual injury.  His

complaint and application shall be settled by the competent special

service of the institution, except when the matter belongs to the

competence of the governor.  If the inmate is not satisfied with the

measures taken by the competent special service, he may complain with

the governor, and afterwards with the National Headquarters of the

Penal Institutions.  No further complaint lies against the measures

taken by the National Headquarters.  Complaints have no suspensive

effect.  According to Rule 27 para. 2, the inmate may request to be

heard by the competent public prosecutor.

     S. 11 (a) of Act No. V of 1972 on Public Prosecution (a Magyar

Köztársaság Ügyészségérol szóló 1972. évi V. törvény), as amended,

provides inter alia that the public prosecutor may supervise the

lawfulness of the conditions of detention, detention on remand, forced

medical treatment and the execution of the detention.  According to

S. 11 (c), the public prosecutor may hear inmates and examine

complaints concerning the execution of sentences.  The organs competent

for the execution of sentences are required to comply with the public

prosecutor's instructions concerning the lawfulness and the conditions

of detention on remand.

     According to S. 70/K of the Hungarian Constitution (Alkotmány),

as amended by Act No. XXXI of 1989 (1989. évi XXXI. törvény), claims

based on the violation of fundamental rights and objections regarding

decisions taken by public authorities in the performance of their

functions can be brought before a court. It follows from the official

commentary, attached to Act No. XXXI of 1989, that S. 70/K was intended

to create the possibility of access to court in respect of claims

against other persons or the state in connection with the fundamental

rights. Section 59 para. 1 of the Constitution ensures the right to a

good reputation, the right to respect for one's home and the protection

of private secrets and personal data.

     The Hungarian prison authorities do not keep registers on the

dates when letters are handed over to them by prisoners and when they

are actually mailed.

COMPLAINTS

1.   The applicant complains about his conviction and the alleged

unfairness of the proceedings concerned. He submits in particular that

his co-accused was influenced by police officers to give evidence

against him.

2.   The applicant further complains about interference with his

correspondence to and from his family and also with Hungarian

authorities and the Commission. He claims that the letters, opened by

the prison authorities, were often either delayed or stopped. He also

submits that his complaints were to no avail. The applicant does not

invoke any specific provision of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 21 June 1993 and registered on

6 January 1994.

     On 11 May 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on 14 July

1994.  The applicant replied personally on 16 September 1994 and also

filed further correspondence.

     On 24 October 1995 the Commission granted the applicant legal

aid.

     The Commission's Secretariat subsequently provided assistance to

the applicant in arranging for his legal representation.  The applicant

was represented as from 14 December 1995.  Observations in reply to the

Government's observations were submitted by the applicant's

representative on 2 March 1996.

     On 7 May 1996 the Government submitted supplementary

observations.

THE LAW

1.   The applicant complains about his conviction and the alleged

unfairness of the proceedings concerned. He submits in particular that

his co-accused was influenced by police officers to give evidence

against him.

     The Commission notes that the applicant's conviction by the

Kaposvár District Court dates back to 1991 and was confirmed by the

Somogy County Regional Court some time in 1992.

     The Commission recalls that Hungary ratified the Convention on

5 November 1992 and that the Convention only governs, for each

Contracting Party, facts subsequent to its entry into force with

respect to that Party. Consequently only proceedings subsequent to this

date fall within the competence of the Commission.

     Even, however, assuming its competence ratione temporis to

examine these proceedings and compliance with Article 26 (Art. 26) of

the Convention, the Commission finds that the applicant has failed to

substantiate his allegations as to the unfairness of the proceedings.

His submissions do not disclose any appearance of a violation of his

Convention rights and, in particular, of his rights under Article 6

(Art. 6).

     It follows that this part of the application is manifestly ill-

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

Convention.

2.   The applicant further complains about interference with his

correspondence to and from his family and also with Hungarian

authorities and the Commission.  He claims that the letters, opened by

the prison authorities, were often either delayed or stopped.  He also

submits that his complaints were to no avail.

     The applicant's complaints fall to be considered under Article 8

(Art. 8) of the Convention which, as far as relevant, provides 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."

a.   The Government submit that the Commission is not competent

ratione temporis to examine the applicant's complaints to the extent

that they concern events prior to 5 November 1992, the date of entry

into force of the Convention in respect of Hungary.

     The applicant submits that the several occasions of interference

with his correspondence shortly before the date of ratification of the

Convention cannot be separated from events of interference subsequent

to the ratification. He argues that the interferences in question in

fact were of a continuous character.

     The Commission notes that part of the applicant's complaints

about interferences with his correspondence, in particular his

correspondence with his wife, relate to a period prior to 5 November

1992, which is the date of the entry into force of the Convention with

respect to Hungary.  However, the Convention only governs, for each

Contracting Party, facts subsequent to its entry into force with

respect to that Party (cf. No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146).

     These events cannot, therefore, be examined by the Commission

ratione temporis. In this respect the Commission notes that the alleged

interferences with the applicant's correspondence in fact constituted

a series of distinct occasions, rather than a practice of continuous

interference. Moreover, the applicant failed to show that any decision

on complaints relating to the period prior to 5 November 1992 was taken

after that date and could accordingly be examined by the Commission.

     Consequently, this part of the applicant's complaint under

Article 8 (Art. 8) is outside the competence ratione temporis of the

Commission.

b.   The Government further maintain that the applicant failed to

exhaust, as required by Article 26 (Art. 26) of the Convention, the

domestic remedies available to him under Hungarian law. According to

the Government, the applicant, in addition to complaints to the prison

authorities and to the public prosecutor, could have also brought the

matter before a court, pursuant to S. 70/K of the Hungarian

Constitution. They consider that S. 70/K, which was introduced in 1989,

created an effective remedy for the purposes of Article 26 (Art. 26),

although there is no case-law on the application of this provision.

     The applicant considers that this remedy as set out by the

Government could not be regarded as effective for the purposes of

Article 26 (Art. 26).  According to the applicant, the possibility of

a complaint with the public prosecutor's office does not allow for a

review of the matter complained about by an independent and impartial

body or tribunal. He is also of the opinion that S. 70/K of the

Constitution is of a declaratory nature and does not as such create an

effective remedy.

     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.

     The Commission recalls that the only remedies which Article 26

(Art. 26) of the Convention requires to be exercised are those that are

both available and sufficient in respect of the violation alleged. The

existence of such remedies must be sufficiently certain not only in

theory but also in practice, failing which they will lack the requisite

accessibility and effectiveness. Moreover, it is for the State to prove

that there exist available remedies which have not been utilised by

those concerned (see Eur. Court HR, Deweer v. Belgium judgment of

27 February 1980, Series A no. 35, pp. 15 and 16, paras. 26 and 29,

with further references; De Jong, Baljet and Van den Brink v. the

Netherlands judgment of 22 May 1984, Series A no. 77, p. 19, para. 39).

     The Commission notes that the applicant complained about

interferences with his correspondence to the Governor of the Budapest

Prison, and also to the public prosecutor of the Budapest Public

Prosecutor's Office on the occasions of the latter's visits in prison.

     As regards the court action referred to in S. 70/K of the

Hungarian Constitution, the Commission notes that the Hungarian

Government were unable to cite a single instance in which a plaintiff

had instituted court proceedings under S. 70/K of the Constitution, as

amended in 1989.  This absence of case-law indicates the uncertainty

of this remedy in practical terms.  Accordingly, the Government have

not shown that this action could constitute an available and sufficient

remedy that the applicant ought to have exhausted.

     It follows that the applicant's complaint about interference with

his correspondence cannot be rejected for non-exhaustion of domestic

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

c.   The Commission has next examined the applicant's submissions

about the alleged interferences with his correspondence to the extent

that the period subsequent to the Hungarian ratification is concerned,

namely, the opening of private letters and of letters transmitting

decisions of Hungarian authorities upon complaints raised by the

applicant in the course of his detention, as well as the alleged

stopping and delays in the delivery of letters.

     The Commission considers that the opening of the letters in

question amounts to an interference with the applicant's right to

respect for correspondence, which falls to be justified under Article 8

para. 2 (Art. 8-2).

     The Government submit that the opening of the letters in question

was lawful and necessary in the interest of prison security.

     As to the lawfulness of the said interference, the applicant

argues that the Hungarian legislation authorising interference with

prisoners' correspondence lacks the sufficient clarity and detailed

criteria for the control of a prisoner's correspondence.

     The Commission finds that the opening of the letters was based

inter alia on S. 36 para. 5 of Law-Decree No. 11 of 1979 on the

enforcement of punishments and measures, which provides for a control

of inmates' correspondence for reasons of security, except for letters

sent to public authorities and to international organisations; inmates

are entitled to be informed about the possibility of control. The

Commission, having due regard to the applicant's submissions on this

point, finds that the legal provisions concerned complied with the

requirements as to clarity and foreseeability. The interference was

thus "in accordance with the law".

     Moreover, the Commission considers that the letters were opened

for "the prevention of disorder and crime" within the meaning of

Article 8 para. 2 (Art. 8-2).

     As regards the question of necessity, the Commission recalls that

the Contracting States have a certain margin of appreciation in

assessing the need for an interference, but it goes hand in hand with

European supervision (Eur. Court HR, Crémieux v. France judgment of

25 February 1993, Series A no. 256-B, p. 62, para. 38).

     The Government claim, in particular, that the prison authorities

were entitled to open the letters arriving from the prosecution

authorities to confirm that they had been in fact sent by an official

body. In their view, there existed a risk that letters which appeared

to come from the prosecution authorities could be used as a channel for

illicit materials. Moreover, having regard to the length of the

applicant's imprisonment and to the amount of mail apparently received

and sent out by the applicant, the Government argue that the incidence

of the openings, as complained of by the applicant, shows the merely

occasional character of the control. They assert that the randomised

control of the inmates' correspondence - let alone that of letters sent

by official bodies - is necessary for the security of prisons.

     The Commission recalls that the Contracting States enjoy a

certain but not unlimited margin of appreciation in the matter of the

imposition of restrictions of, in the instant case, confidentiality of

correspondence. To be compatible with the Convention, such an

interference must, inter alia, correspond to  a "pressing social need"

and be "proportionate to the legitimate aim pursued". In assessing

whether an interference with the exercise of the right of a convicted

prisoner to respect for his correspondence was "necessary" for one of

the aims set out in Article 8 para. 2 (Art. 8-2), regard has to be paid

to the ordinary and reasonable requirements of imprisonment. Moreover,

the Court has recognised that some measure of control over prisoners'

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

Convention (cf., Eur. Court HR, Silver and others v. the United Kingdom

judgment of 25 March 1983, Series A no. 61, pp. 37-38, paras. 97-98).

     Problems may arise under the Convention inter alia where there

has been an interference with an inmate's correspondence with his

solicitor or with European human rights control bodies (cf., Eur. Court

HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series

A no. 233).

     The Commission notes that, in the present case, the control

exercised by the Hungarian prison authorities related to the

applicant's private correspondence and to letters transmitting

decisions of Hungarian authorities upon complaints raised by the

applicant in the course of his detention.

     As regards the opening of some letters transmitting decisions of

the domestic authorities, the Commission considers that there were no

particular reasons, such as the maintenance of the confidentiality of

correspondence, militating against the opening of the letters in

question. In the Commission's opinion, what might be at stake for the

applicant due to the eventual disclosure of the contents of these

letters by the prison authorities, does not outweigh the State's

general concerns as to the security of prisons.

     As regards the control of the applicant's incoming private mail,

the Commission considers that the occasional opening of a prisoner's

letters, chosen at random, does not exceed the scope of control

measures warranted by the ordinary and reasonable requirements of

imprisonment, as recognised by the Court in its case-law, and is not

beyond the limits of a permissible control of prisoners'

correspondence.

     Accordingly, the Commission finds that the opening of the letters

in question can reasonably regarded as "necessary in a democratic

society" within the meaning of Article 8 para. 2 (Art. 8-2). Thus this

interference with the applicant's correspondence was justified under

Article 8 para. 2 (Art. 8-2) of the Convention.

     As to the alleged further interferences, the Government maintain

that the applicant has failed to substantiate that his correspondence

was delayed or not delivered due to interferences on the part of the

prison authorities.

     The applicant maintains that the official letter containing the

decision of the Investigation Office of the Kaposvár Prosecution, dated

3 February 1993 and received at the Budapest Prison on 19 February

1993, was handed over to him three days later. Another official letter

containing the decision of Somogy County Public Prosecutor's Office,

dated 27 April 1993, was received at the prison on 1 May 1993 and the

text of the decision was handed over to him allegedly ten days after

its arrival. His letter to the Commission, dated 18 October 1993,

reached the Commission on 8 November 1993.  His two letters addressed

to his wife, dated 1 November 1993, were allegedly stopped by the

prison authorities in the Kaposvár Prison.

     The Commission finds that the applicant's submissions are not

sufficient to show whether, as a result of the control of the

applicant's correspondence or otherwise on account of the handling of

mail by the prison authorities, any unacceptable delays occurred or

that in fact letters were stopped.

     In sum, the applicant's submissions do not, therefore, disclose

any breach of his rights under Article 8 (Art. 8) of the Convention.

     It follows that this part of the application is manifestly ill-

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

Convention.

     For these reasons, the Commission, unanimously

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber