FOURTH SECTION

DECISION

Application no . 20237/12 Marko Antero MALINEN against Finland

The European Court of Human Rights ( Fourth Section ), sitting on 27 January 2015 as a Chamber composed of:

Guido Raimondi , President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 2 April 2012 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Marko Antero Malinen , is a Finnish national who was born in 1978 and lives in Hyvinkää . He was represented before the Court by Mr Jaakko Tuutti , a lawyer practising in Tampere .

2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant is in prison . On 25 November 20 1 1 a letter sent to the applicant was withheld by the prison authorities on the basis of Chapter 12, section 5 , of the Prison Sentences Act on susp icion that it contained drugs. The letter was sent to the police for further investigation . The applicant was informed about the withholding of the letter on the same day. According to the established prison practice, the withheld letter was either given to the applicant to read or it was read to him.

5. On 30 December 2011 the police found that no crime had been committed as they could f ind only a very small amount of possible traces of drugs in the letter using the means at their disposal. For this reason, as well as for expediency and cost-effectiveness, the police decided not to forward the letter to a forensic laboratory for further testing but returned it to the prison.

6. The prison decided to withhold the letter still as it had not been examined properly. T he applicant was informed that he w ould receive the letter only upon his release.

7. On an unspecified date t he applicant sought rectification of the prison director ’ s decision of 25 November 2011 to withhold his letter.

8. On 16 January 2012 the Criminal Sanctions Agency ( rikosseuraamusvirasto , brottspåföljdsverket ) refused his application finding that, according to domestic law, mail sent or received by a prisoner could be withh e ld, inter alia , in order to prevent danger or to protect safety in prisons. Such mail was to be returned to the sender or give n to the prisoner upon release.

9. By letter dated 6 February 2012 the applicant appealed to the Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ) , requesting that the prison director ’ s decision be quashed. Interpretation of the domestic provisions in accordance with fundamental rights should have led to the use of alternative, less restrictive means . As no traces of drugs had been found, the letter or a copy of it should have been given to the applicant.

10. On 13 March 2012 the Administrative Court, by a final decision, rejected the applicant ’ s appeal. It found that the withholding of the applicant ’ s letter had been necessary in order to prevent danger and crime in the prison. The letter had been sin g led out by a sniffer dog, which had led to a strong suspicion of the presence of drugs. In such a situation the domestic law did not oblige the prison authorities to give a copy of the withheld letter to a prisoner .

11. O n 4 November 2013 a copy of the letter was given to the applicant.

B. Relevant domestic law

12. According to Article 10 of the Constitution of Finland ( Suomen perustuslaki , Finlands grundlag , Act no. 731/1999), t he secrecy of correspondence, telephony and other confidential communications is inviolable. Provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty , may be laid down by an Act.

13. According to Article 7 of the Constitution, the rights of individuals deprived of their liberty shall be guaranteed by an Act. The rights of convicted prisoners and pre-trial detainees and the necessary restrictions on these rights are regulated by the Prison Sentences Act and the Detention Act.

14. Chapter 12, section 1, subsection 1, of the Prison Sentences Act ( vankeuslaki , fängelselagen , Act no. 767/2005) provides that a prisoner has the right of correspondence. Any seal ed letter or other mail destined for the prisoner or sent by the prisoner may be checked by X-ray or by similar methods without opening the mail, in order to examine whether it contains prohibited substances or objects referred to in Chapter 9, section 1, subsection 1 or 2, of the Act.

15. Chapter 12, section 5, of the Act provides that a letter, mail or message sent by or destined for a prisoner may be withheld, if the withholding is necessary for the prevention or solving of crime, prevention of disorder in the prison or for the safety of the detainee or other persons. The recipient or the sender shall be immediately informed about the withholding and the reasons for it. A letter, mail or message which has not been delivered shall be returned to the sender or given to the prisoner upon release.

COMPLAINT

16. The applicant complained under Article 8 of the Convention that there had been a violation of his right to respect for correspondence.

THE LAW

17. The applicant complained under Article 8 of the Convention about a violation of his right to respect for correspondence.

18. Article 8 of the Convention 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.”

19 . The Government observed that, according to the information received from the relevant authorities, the applicant had received information about the content of the letter when it had either been given to him for reading or read to him. Furthermore, a copy of the letter had been given to the applicant on 4 November 2013. The applicant could therefore no longer claim to be a victim and his application should be rejected pursuant to Article 35 § 4 of the Convention. Alternatively, the application should be struck out of the Court ’ s list of cases under Article 37 § 1 (b) of the Convention as the matter had been domestically resolved.

20. Were the Court to have another opinion, the Government argued that the applicant had failed to establish in what way the withholding of the letter had caused him significant disadvantage. In the Government ’ s view the applicant had not suffered significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention and, consequently, his application should be rejected under Article 35 §§ 3 (b) and 4 of the Convention.

21. The Government noted that, in any event, the applicant ’ s application was manifestly ill-founded. The impugned measures by the relevant authorities had amounted to an interference with the applicant ’ s right to respect for his correspondence under Article 8 of the Convention. However, this interference had had a basis in national law, especially in Chapter 12, section s 1 and 5 , of the Prison Sentences Act . The interference had thus been in accordance with law and it had pursued the legitimate aims of preventing disorder or crime, or protecting the health and the rights and freedoms of others.

22. As to the necessity in a democratic society, the Government noted that the initial withholding of the letter had been necessary for the prevention of disorder in the prison. Impregnating letters, envelopes and stamps with drugs was very common in Finnish prisons. The fact that a sniffer dog had reacted to the letter and singled it out had justified a strong suspicion of the presence of drugs in the letter. The applicant had been informed about the withholding of the letter on that day when it had been withheld. The letter had either been read to the applicant or given to him to read. At that time the applicant had not requested a copy of the letter. Although the domestic legislation did not oblige prison staff in such situations to give a copy of withheld mail to the prisoner, such copy had been given to the applicant on 4 November 2013. The original letter would be given to him upon release on parole. The impugned measures had thus been necessary in a democratic society.

23 . The applicant pointed out that the matter had been allegedly “domestically resolved” only one and a half years after his application had been lodged with the Court. Even then the applicant had not been awarded any compensation for the delay. The content of the withheld letter had been important at the time when the letter was sent, not two years after. The applicant did not consider the case to be resolved.

24. As to the significant disadvantage, the applicant claimed that at the time of lodging his application with the Court, he had not been in a position to measure the disadvantage. The Court had found in several cases that withholding one mail item was enough to give rise to a violation of Article 8 of the Convention.

25. The applicant noted that it was not his duty to provide grounds for receiving the letter but rather for the Government to provide grounds for his not receiving it. The authorities had not found any signs of narcotics in the letter but they had maintained their suspicions because the test methods they had chosen had not been accurate enough.

26 . The Court notes first of all that it is not necessary for it to examine the Government ’ s preliminary objections as the applicant ’ s application is in any event manifestly ill-founded.

27. The Court notes that the issue at stake in the present case concerns correspondence which falls within the scope of Article 8 and which the applicant may have the right to receive. In such circumstances the applicant might expect the correspondence he receives to be protected by Article 8 of the Convention (compare and contrast Copland v. the United Kingdom , no. 62617/00 , §§ 41-42, ECHR 2007 ‑ I). The letter sent to the applicant would therefore fall within the scope of his correspondence for the purposes of Article 8 § 1 of the Convention.

28 . The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There may in addition be positive obligations inherent in ensuring effective “respect” for the rights guaranteed by that Article. These obligations may involve the adoption of measures designed to secure respect for rights even in the sphere of the relations of individuals between themselves (see, for example, Kroon and Others v. the Netherlands , 27 October 1994, § 31, Series A no. 297 ‑ C; and Mikulić v. Croatia , no. 53176/99 , § 57, ECHR 2002 ‑ I). However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland , 26 May 1994, § 49, Series A no. 290; and Kroon and Others v. the Netherlands , cited above).

29 . The Court reiterates that its task is not to substitute itself for the competent domestic authorities in regulating prisoners ’ correspondence at the national level, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Helander v. Finland ( dec. ), no. 10410/10, § 50, 10 September 2013; and, mutatis mutandis , RóżaÅ„ski v. Poland , no. 55339/00 , § 62, 18 May 2006; Mikulić v. Croatia , cited above, § 59; and Hokkanen v. Finland , 23 September 1 994, § 55, Series A no. 299 ‑ A).

30. The Court considers that the present case falls rather within the scope of the negative obligation of the State. The Court notes that both parties to the case accept that there was an interference with the applicant ’ s right to respect for correspondence under Article 8 of the Convention when the letter destined for him was withheld by the prison authorities. However, as the Government stated, the Court accepts that t his interference had a basis in national law, especially in Chapter 12, section s 1 and 5 , of the Prison Sentences Act . The interference also pursued several legitimate aims, namely the prevention of disorder or crime, the protection of health, and the protection of the rights and freedoms of others.

31. As to the necessity in a democratic society, the Court notes that the applicant was informed about the withholding of the letter on the same day when the withholding took place. According to the Government, the content of the letter was immediately transmitted to the applicant. The applicant was thus immediately made aware of the content of the letter. He has not contested this. Subsequently he also received a copy of the letter.

32. The Court finds that the domestic authorities had valid reasons to withhold the letter initially on the suspicion that it contained drugs. After the police were able to f ind only a very small amount of possible traces of drugs in the letter and when it was returned to the prison, the prison authorities continued to withhold the letter until 4 November 2013 when a copy of the letter was given to the applicant . In this context the Court reiterates its case-law where it has been held that a delay of three weeks or a month in sending a letter by the prison authorities while seeking instructions from a higher authority is still considered reasonable (see Silver and Others v. the United Kingdom , 25 March 1983, § 104, Series A no. 61; and McCallum v. the United Kingdom , no. 9511/81, Commission ’ s report of 4 May 1989, §§ 57-59). In the present case, the applicant received a copy of the withheld letter about two years later, which is substantially longer than in the above-mentioned cases. The Court does not, however, consider that the applicant ’ s situation is comparable to those of the applicants in the above-mentioned cases. The Court finds it decisive that, in the present case, the applicant had already been made aware of the content of the letter on the same day when it had been withheld. It cannot therefore be said that there was a delay in conveying to the applicant the message contained in the withheld letter. For this very reason the Court is not able find that the withholding was disproportionate for the applicant.

33 . In conclusion, having regard to the margin of appreciation left to the State, the Court considers that the withholding by the domestic authorities of the letter destined f o r the applicant cannot be regarded as unjustified for the purposes of Article 8 of the Convention. In particular, a fair balance was struck between the different interests involved and the applicant ’ s right to respect for his correspondence was secured. Accordingly, the application must be rejected as manifestly ill ‑ founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 19 February 2015 .

Françoise Elens-Passos Guido Raimondi Registrar President