Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25652/94

by A.K.L.

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 25 August 1994 by

A.K.L. against Finland and registered on 14 November 1994 under file

No. 25652/94;

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 applicant is a Finnish citizen, born in 1953. He is presently

serving a prison sentence in the County Prison of Häme.

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

summarised as follows.

The applicant has been in imprisonment since at least from August

1993. In 1993 he was serving his prison sentence in the Central Prison

of Riihimäki, hereinafter "the Central Prison". At the beginning of

1994, on or before 7 March 1994, he was transferred to the County

Prison of Häme, hereinafter "the County Prison".

By petitions of 13 August 1993, 27 August 1993, 14 December 1993

and 1 January 1994 to the Ministry of Justice (oikeusministeriö) and

to the Parliamentary Ombudsman (eduskunnan oikeusasiamies), the

applicant complained generally about the conditions in the Central

Prison as regards, inter alia, the surveillance of prisoners' telephone

calls and restrictions on the use of money in prison.

On 1 December 1993 the Department for Prison Administration

(vankeinhoito-osasto) of the Ministry of Justice, hereinafter "the

Prison Department", responded to the applicant's complaints by stating,

inter alia, that the restrictions on the use of money in prison were

based on a regulation made by the Prison Department in February 1992.

It further stated that, under section 28 of the 1975 Decree on the

Treatment of Prisoners (vankeinhoitoasetus), the Prison Governor

(vankilan johtaja) was empowered, where special grounds existed, to

grant a prisoner a wider right to use money.

On 31 August 1994 the Deputy Parliamentary Ombudsman (eduskunnan

apulaisoikeusasiamies) responded to the applicant's petitions by

referring, firstly, to her previous decision of 31 January 1992, in

which she had stated that the applicant's petition did not establish

a need for further measures. She found that the applicant's petitions

were so general that they did not give her grounds to change her

previous decision. As regards the surveillance of telephone calls, she

stated, furthermore, that a Bill proposing an amendment to the Decree

on Penal Enforcement (asetus rangaistusten täytäntöönpanosta) was

before Parliament.

By a petition of 7 March 1994 to the Parliamentary Ombudsman the

applicant complained about the prison conditions in the County Prison

as regards, inter alia, the surveillance of telephone calls. The

Parliamentary Ombudsman requested the Prison Governor and two guards

to give reports and also sought an opinion on the case from the Prison

Department. It appears that the applicant had during his imprisonment

in the County Prison made a total of 20 telephone calls. The Prison

Department stated in its opinion that the surveillance of prisoners'

telephone calls was based on a previous circular letter issued by the

Prison Department on 24 June 1975 as well as on a more recent

regulation concerning prisoners' correspondence, which had come into

force on 1 January 1993. The Prison Department argued that the practice

of the surveillance was justified taking into account the need for the

maintenance of order in prison.

On 22 August 1994 the Parliamentary Ombudsman decided not to take

any further measures in the case. The Parliamentary Ombudsman stated

that, at that time, there was no statute law on the surveillance of

telephone calls in prisons. The practice of the surveillance of

telephone calls was based on a previous circular letter issued by the

Prison Department on 24 June 1975. He furthermore referred to the

legislative proposal concerning an amendment to the Decree on Penal

Enforcement. The Parliamentary Ombudsman found that the surveillance

of prisoners' telephone calls could not be considered to be unlawful

taking into account the reasons given in the Prison Department's

opinion.

According to the circular letter of 24 June 1975 concerning

telephone calls, a prisoner's telephone call could be put under

surveillance in two ways: either by being present in the same room or

by listening in an extension, but informing the prisoner about the

surveillance beforehand. It was prohibited to listen to calls between

a prisoner and his advocate or legal aid counsel save for special

reasons. This directive was replaced as from 1 January 1993 by an

directive on prisoners' correspondence. The previous practice observed

in connection with the surveillance of prisoners' calls was not

changed.

Under section 9, subsection 3 of the Act on Penal Enforcement

(laki rangaistusten täytäntöönpanosta), which was amended on

31 January 1995 and came into force on 1 May 1995, a prisoner may be

granted permission to make a telephone call to someone outside the

prison. A prisoner's telephone call may be put under surveillance if

such surveillance is necessary in order to prevent a crime or if there

exist special grounds to suspect misuse of the right to use the

telephone. The prisoner and the person whom the prisoner is going to

phone are to be informed about the surveillance beforehand. Telephone

calls to an authority with supervisory responsibility for the prison

or to the prisoner's counsel may not be put under surveillance.

Under section 28 of the 1975 Decree on the Treatment of

Prisoners, the Ministry of Justice issues regulations on prisoners'

right to have money in their possession. The Prison Governor is

empowered, where special grounds exist, to allow a prisoner a right to

have money in his possession and to use it. By virtue of section 32 of

the relevant Decree, there is to be a shop for prisoners in the prison.

If a prisoner is not allowed to have money in his possession, his

purchases shall be charged to his account. The costs of mail and

telephone calls are charged to a prisoner's account. The new Decree on

the Treatment of Prisoners, as amended on 16 June 1995, contains

similar provisions (in sections 34, 38 and 39), and it introduces a

payment card which can be used instead of money.

COMPLAINTS

The applicant complains, under Article 8 of the Convention, that

certain conditions in Finnish prisons violate his right to respect for

his private life.

Firstly, the applicant alleges that prisoners' telephone calls

are being placed under surveillance using technical equipment, although

there is no authorization for this practice in legislation. He

maintains that the authorities supervising the prisons do not deny that

telephone calls may be put under surveillance. He further maintains

that he himself does not have any evidence of his own telephone calls

having been placed under surveillance but that, taking into account

that the authorities admit the possibility that telephone calls can be

put under surveillance, he is not obliged to present any evidence

concerning his own telephone calls.

Secondly, as regards the right to use money, the applicant

maintains that prisoners' right to use money is restricted to FIM 300

per month. He complains that this restriction is arbitrary and

restricts in an unjustified manner his opportunities to make purchases

in the prison shop and that, therefore, his right to respect for his

private life has been violated.

THE LAW

The applicant complains that, during his imprisonment in the

Central Prison of Riihimäki and later in the County Prison of Häme, the

practice of the surveillance of prisoners' telephone calls and the

restriction on the use of money violated his right to respect for his

private life as he, too, was subjected to these practices complained

of. He invokes Article 8 (Art. 8) of the Convention which reads as

follows:

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

family life, his home 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."

The Commission notes, firstly, that it is questionable whether

the application, as regards the conditions in the first prison, namely

in the Riihimäki Central Prison, has been lodged in time having regard

to the requirements of Article 26 (Art. 26) of the Convention. The

Commission finds, however, that this question can be left open since

it finds that the application is in any event inadmissible for the

following reasons.

1. As regards the telephone calls, the Commission recalls that

communication by telephone is included in the concepts of "private

life" and "correspondence" (see, for example, Eur. Court H.R., Malone

judgment of 2 August 1984, Series A no. 84, p. 30, para. 64).

The Commission notes, however, that the applicant has not in any

way substantiated his allegation as regards the surveillance of his own

telephone calls. The applicant has neither specified what telephone

calls he has made, nor on what basis he believes that his telephone

calls have been put under surveillance. The Commission also notes that

the practice which was used in the prisons as regards the surveillance

of prisoners' telephone calls was not such as could escape a prisoner's

notice since telephone calls were listened to by a guard being present

in the same room with a prisoner or by listening in an extension, but

in the latter case the prisoner was informed about the surveillance

before the call. The applicant has failed to put forward any argument

why these conditions would have been disregarded in his case.

In these circumstances the Commission finds that the applicant's

allegation concerning an interference in his right under Article 8

(Art. 8) of the Convention has been unsubstantiated.

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. As regards the complaint concerning the possession and use of

money in prison the Commission accepts that this question falls under

Article 8 (Art. 8) of the Convention as being part of "private life"

(cf. No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).

Article 26 (Art. 26) of the Convention provides that the

Commission may deal with a matter only 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. It is established case-law that

"the final decision" refers only to domestic remedies which can be

considered to be "effective and sufficient" for the purpose of

rectifying the subject-matter of the complaint (see, for example, No.

11763/85, Dec. 9.3.89, D.R. 60 p. 128).

The Commission notes that under Finnish law the applicant had the

opportunity to request the Prison Governor to grant him greater freedom

to have money in his possession and to use it than prescribed by the

general regulation issued by the Prison Department of the Ministry of

Justice. The applicant has, neither in the Central Prison of Riihimäki

nor in the County Prison of Häme, lodged such a request. The Commission

finds that an individual's request to the relevant Prison Governor is

an "effective remedy" as regards the question of the right to have

money in one's possession and to use it.

The Commission concludes that the applicant has not exhausted the

remedies available to him under Finnish law. It follows that this part

of the application must be rejected, under Article 27 para. 3

(Art. 27-3) of the Convention, for failure to exhaust domestic

remedies.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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A.K.L. v. FINLAND

A.K.L. v. FINLAND

LEXI