THIRD SECTION

DECISION

Application no . 27051/09 Florin MOLDOVAN against Romania

The European Court of Human Rights (Third Section), sitting on 20 May 2014 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Dragoljub Popović , Kristina Pardalos , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 4 May 2009 ,

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 Florin Moldovan , is a Romanian national, who was born in 1980 and is currently detained in Gherla Prison.

2 . The Romanian Government (“the Government”) were represented by their Agents, Mr R.-H. Radu and M s I. Cambrea, of the Ministry of Foreign Affairs .

A. The circumstances of the case

3 . The applicant is serving an eighteen-year prison sentence for murder. He has served his sentence in various Romanian prisons.

4 . From 30 January 2006 to 5 March 2009 the applicant was detained in Arad Prison. As the originals of his legal correspondence had been retained by the prison authorities, the applicant lodged a request with the prison authorities demanding that all the documents be returned to him. As he did not receive a favourable response, he lodged a complaint with the judge responsible for the execution of sentences in Arad Prison (“the judge”) on the basis of the Execution of Sentences Act (“Law no. 275/2006”).

5 . By an interlocutory judgment of 26 November 2008, the judge ruled that the Arad Prison authorities were in breach of national law and of Article 8 of the Convention, and that they must therefore provide the applicant with the retained legal correspondence. The judge noted that the practice of the prison administration based on the provisions of the unpublished Order of the Minister of Justice no. 2860/C/2000 (“the order”) was one of presenting the prisoners with their correspondence, allowing them to read it and thereafter filing it in the prisoners ’ personal files to which the prison authorities had access. The judge quoted the relevant provisions of the order in the interlocutory judgment. He further found that the prison authorities ’ practice of retaining prisoners ’ legal correspondence was contrary to Law no. 275/2006 and that the above-mentioned order should have been considered as repealed by the entry into force of that law. The judge held in conclusion that by allowing prisoners access to their prison files or by providing them with photocopies of the documents, the prison authorities had not redressed the violation of the right to correspondence.

6 . On 30 December 2008, following the interlocutory judgment of 26 November 2008, the Arad Prison authorities provided the applicant with the legal correspondence that he had received during his stay in that prison.

7 . On 5 March 2009 the applicant was transferred to TimiÅŸoara Prison, where he was detained until 29 July 2010. His legal correspondence and documents that arrived during his stay in that prison continued to be retained in his prison file.

8 . The applicant lodged a new complaint with the judge responsible for the execution of sentences in TimiÅŸoara Prison, requesting, inter alia , the provision of correspondence and legal documents addressed to him. By an interlocutory judgment of 3 June 2009 the judge determined that no new ruling on the application was necessary, as the applicant already had a judgment in his favour whereby the prison authorities were mandated to provide him with his correspondence.

9 . According to the Government ’ s allegations, non-contradicted by the applicant , he received, while in Timişoara Prison, photocopies of various legal and medical documents.

B. Relevant domestic and international law and practice

10 . The relevant parts of Law no. 275/2006, in force at the material time, read as follows:

Section 45

“2. Correspondence is confidential and cannot be opened or retained, save for the limitations and the conditions provided for by law ...

4. Correspondence can be opened and retained only if there is reasonable suspicion that a crime has been committed. [The detainee] shall be informed in writing and immediately of this measure and the re tained correspondence shall be stored in a special file kept by the prison authorities.

5. The opening and retaining of correspondence under paragraph 4 is possible only on the basis of a reasoned decision, delivered in writing by the judge responsible for the execution of sentences ... ”

11 . The Rules of Enforcement of Law no. 275/2006 were adopted by Governmental Decision no. 1897/2006. Under Article 67 of the Rules, each detainee has a personal file that contains documents and information on his legal and personal circumstances, as well as his behaviour during detention; the file is confidential and accessible to “persons and authorities authorised by law.”

12 . The relevant provisions of the unpublished Order of the Ministry of Justice no. 2860/C/2000 read as follows:

Article 66

“Excerpts or copies of the sentencing judgments, interlocutory judgments, arrest warrants or warrants delivered in view of the execution of a sentence, as well as any other document received from the prosecutors ’ offices or the courts relating to the detainees ’ legal situation, shall be provided to the latter for reading and signature.”

Article 67

“Upon receipt of summonses or any other criminal procedure act that requires the detainee ’ s signature ... the prison staff shall proceed as follows:

a) provide the detainee with the act for reading, only after the act has been recorded in the detention file and saved electronically;

b) ask the detainee to sign an acknowledgement and the act, with due mention of the date ... ;

c) send the acknowledgement to the authority that delivered the act;

d) if the detainee ’ s presence before the court or the authority in charge of the criminal proceedings is required, on the basis of the summons, the data shall be recorded for presentation to the courts ... ”

Article 70

“Upon receipt, procedure acts or any other act that does not require the detainee ’ s signed acknowledgement shall be recorded in the detention file, saved electronically, communicated to the detainee with due mention of the date and the detainee ’ s signature, and stored (“ se clasează ”) in the detainee ’ s file”.

13 . Order of the Ministry of Justice no. 2860/C/2000 was repealed by Order no. 432/C/2010 but maintained the same provisions relating to prisoners ’ legal correspondence. The new order is public and entered into force on 11 March 2010.

14 . A Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of legal advice in prison that may be relevant in the context of the present case.

Rule 2 3 reads:

“ 1 . All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.

2 . Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.

3 . Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners.

4 . Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.

5 . A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.

6 . Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings. ”

COMPLAINTS

15 . The applicant complained , under Article 8 of the Convention, that his legal correspondence had been retained by the authorities in Arad and TimiÅŸ oara Prisons.

16 . He also complained that his rights under Articles 1, 6, 10, 13 and 14 of the Convention and under Article 1 of Protocol no. 12 to the Convention had been violated.

THE LAW

A. The complaint under Article 8 of the Convention

17 . The applicant complained that his legal correspondence had been retained by the authorities in Arad and TimiÅŸoara Prisons. He relied on Article 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.”

18 . The Government raised two preliminary objections. Firstly, relying on the cases of Ionescu v. Romania ((dec.), no. 36659/04, 1 June 2010) and Korolev v. Russia ((dec.), no. 25551/05, 1 July 2010), they asserted that the applicant had not suffered any significant disadvantage. He had not undergone any material loss or other prejudice, as he had had access to his legal correspondence and had received copies of all the documents. Secondly, they argued that the applicant was no longer a victim because, while in Arad Prison, he had received the originals of his legal correspondence, as recorded in the report of 30 December 2008 (see paragraph 6 above). Also, while in TimiÅŸoara Prison, the applicant had received photocopies of the documents he had requested. The Government relied on several reports of the TimiÅŸoara Prison authorities attesting that the applicant had received photocopies of various legal and medical documents.

19 . The applicant did not submit observations on the admissibility of his complaint.

20 . The Court does not find it necessary to examine the Government ’ s objections since the complaint is in any event manifestly ill-founded for the following reasons.

21 . At the outset, the Court note s that the applicant complains of the practice of the prison authorities of storing legal documents in the prisoners ’ personal files. Consequently, t he object of the applicant ’ s complaint relates to access to legal documents such as copies of judgments or interlocutory judgments, arrest warrants or warrants delivered in view of the execution of a sentence or other legal documents sent by the prosecutor ’ s offices or the courts in respect of his legal situation (see paragraph 12 above) .

22 . T he applicant does not complain of an interference with his correspondence with the Court (compare and contrast, Peers v. Greece , no. 28524/95, § 79, ECHR 2001 ‑ III; and Petra v. Romania , 23 September 1998, § 31, Reports of Judgments and Decisions 1998 ‑ VII) or with his lawyer (compare and contrast, Campbell v. the United Kingdom , 25 March 1992, § 30, Series A no. 233; Calogero Diana v. Italy , 15 November 1996, § 11, Reports of Judgments and Decisions 1996 ‑ V; and Petrov v. Bulgaria , no. 15197/02, §§ 35 and 39, 22 May 2008). Neither does he complain of an interference with his personal mail ( Năstase-Silivestru v. Romania , no. 74785/01, § 34, 4 October 2007; and Enea v. Italy [GC], no. 74912/01, §§ 24-26, ECHR 2009).

23 . The Court therefore accepts that the object of the applicant ’ s complaint is limited to legal documents issued by prosecutor ’ s offices and courts of law, such as judicial decisions, warrants or summonses.

24 . The Court takes the view that such official documents do not have, by their nature, a purely private character, since the public is, in principle, entitled to have access to them ( mutatis mutandis , Căşuneanu v. Romania , no. 22018/10 , § 93 , 16 April 2013 ). Moreover, following the procedure before the judge responsible for the execution of sentences, the Arad Prison authorities provided the applicant with the originals of his legal correspondence (see paragraph 6 above) , while the Timi ş oara Prison authorities provided him with the relevant photocopies (see paragraph 9 above) . It follows that the applicant had access to all the legal documents in question.

25 . In this respect, the Court points out that the European Prison Rules recommend alternatively that prisoners have access to or keep in their possession documents relating to their legal proceedings (see paragraph 14 above) . This recommendation of non-binding nature is, however, of a certain importance (see Sławomir Musiał v. Poland , no. 28300/06, § 96 , 20 January 2009 ; and Jakóbski v. Poland , no. 18429/06, § 53 , 7 December 2010 ).

26 . Therefore, the Court takes the view that the applicant ’ s complaint is rather of an abstract nature since he does not contend that the practice of the prison authorities of storing the legal documents in his personal files had direct consequences on his legal situation. He did not claim that such practice had prevented him from exercising his rights or that there had been a breach of confidentiality with respect to his personal data. Moreover, the Court has already found that he had access to all the relevant legal documents (see paragraph 24 above).

27 . It follows that this complaint is manifestly ill-founded and should be dismissed as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Other complaints

28 . Lastly, the applicant complained that his rights under Articles 1, 6, 10, 13 and 14 of the Convention and under Article 1 of Protocol no. 12 to the Convention had been violated.

29 . In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President