SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63767/00 by Alvydas PUZINAS against Lithuania

The European Court of Human Rights (Second Section), sitting on 13 December 2005 as a Chamber composed of:

Mr J.-P. Costa , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs A. Mularoni , Mrs E. Fura-Sandström , Ms D. Jočienė , Mr D. Popović , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 18 November 2000 ,

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

The applicant, Mr Alvydas Puzinas , is a Lithuanian national, who was born in 1952 and lives in Panevėžys .

A. The circumstances of the case

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

On 12 December 1991 the Supreme Court sentenced the applicant to 13 years ’ imprisonment for aggravated murder. He served the sentence in the Rasų Prison in Vilnius . The applicant was released on licence on an unspecified date in 2002.

1. Disciplinary penalty of 20 July 1999

The applicant is the President of the organisation for prisoners ’ mutual assistance and support “Freedom” ( “ Laisvė ” ). On 9 July 1999 the applicant signed a letter, on behalf of this organisation and certain other prisoners, making complaints about the conditions of detention at Rasų Prison and about various allegedly unlawful acts of the prison administration. The complaint was addressed to 10 persons, five of which were State officials and five others were representatives of the private media. According to the applicant, the complaint was not sent through the prison administration in order to avoid censorship.

On 20 July 1999 the Prison Department Director punished the applicant by prohibiting him from receiving parcels during a personal visit, having found that the sending of the complaint of 9 July 1999 through channels other than the prison administration had breached the relevant provisions of the Prison Code (Article 50 § 6). It was also established that the Prison Interim Rules (fifth addendum) prohibited a prisoner from using a personal computer, as had been the case with this letter. The Director held that the applicant could only send the complaint to the State authorities, not other organisations or persons (Article 50 § 1). The Director further stated that the Prison Code (Article 50 § 6) prohibited complaints “on behalf of other prisoners”. The penalty was imposed on account of these breaches.

Upon the applicant ’ s appeal against the penalty, on 8 December 1999 the Ombudsman established that the provisions of the Prison Code had not properly protected prisoners ’ right of association. The Ombudsman did not express her opinion as to the lawfulness of the penalty.

The applicant applied to the administrative courts, claiming that the penalty had been unlawful. On 6 March 2000 the Vilnius Regional Administrative Court disallowed the claim for want of jurisdiction.

On 30 March 2000 the Supreme Administrative Court upheld the decision on appeal. Upon the applicant ’ s further appeal, on 10 May 2000 the Court of Appeal quashed the lower court decisions. It held inter alia that the prison administration was part of the executive, and that the administrative courts were consequently competent to examine the applicant ’ s action concerning allegedly unlawful acts by the prison administration.

As the applicant subsequently submitted the claim in accordance with the requirements of the Code of Administrative Procedure, his action was examined by the Vilnius Regional Administrative Court on 29 May 2001 , in the presence of the applicant, transported to the hearing directly from the prison.

The court rejected the action as unsubstantiated, finding that the penalty of 20 July 1999 had been lawful. It held inter alia :

“Pursuant to Article 50 § 1 of the Prison Code, convicted persons are guaranteed the right to submit applications, proposals and complaints to the State authorities, public organisations and officials. When needed, the prison administration can attach their observations [thereto]. However, convicted persons are prevented from applying to these institutions through channels other than the prison administration (Article 50 § 6 of the Prison Code). The applicant admitted that the application [of 9 July 1999 ] was sent to 10 addressees illegally , through a person who had completed his sentence and had been released from the prison. The prison administration was therefore deprived of the right to submit their comments as to the issues set out in the application.”  

On 11 July 2001 the Supreme Administrative Court rejected the applicant ’ s appeal against the judgment, holding inter alia :

“The applicant ’ s claims that the [relevant] provisions of the Prison Code contradict the Constitution are unsubstantiated. The applicant mus t acknowledge that he has been convicted and sentence d to imprisonment , and that his legal situation is different from that of persons who have not breached the law ...

As appears from the case-file, the applicant was punished [on 20 July 1999 ] not for correspond ing with representatives of the media, but for a breach of the requirement under Article 50 of the Prison Code to conduct [such correspondence] through the prison administration. The same can be said regarding the applicant ’ s claims that, by way of the impugned penalty, he was punished for criticism, holding opinions or imparting information.”

That decision was final.

2. Transfer to the Vilnius Remand Prison

The applicant brought an action against the Rasų Prison administration, claiming that during the period from 30 June 2000 to 14 July 2000 he had been unlawfully transferred to and held at the Vilnius Remand Prison. On 8 November 2000 the Vilnius Regional Administrative Court rejected the action, finding that the applicant had been temporarily transferred to the Vilnius Remand Prison in order to ensure his presence at another court hearing scheduled for 12 July 2000 ; the applicant, as a party to the relevant proceedings, had been requested to participate at the hearing by a judge. It was found that the applicant could only have been taken to the hearing from the Vilnius Remand Prison, and that his temporary transfer to that prison had therefore been lawful.

The applicant appealed against this judgment. On 27 February 2001 the Supreme Administrative Court upheld the applicant ’ s appeal and quashed the first instance decision. The appellate court held that the transfer had been unlawful in that other opportunities had existed for taking the applicant from the Rasų Prison to the court hearing of 12 July 2000 . Pecuniary and non-pecuniary damages in the total amount of 300.40 Lithuanian litai (LTL) [1] were awarded to the applicant for the unlawful transfer to and keeping at the Vilnius Remand Prison from 30 June 2000 to 14 July 2000 .

The court judgment of 27 February 2001 was executed by decision of the Prison Director on 13 April 2001 .

3. The applicant ’ s other actions while in prison

The applicant also brought an action claiming discrimination due to the fact that 25% of his salary while working in the prison had been discounted, in view of his conviction. He also claimed that the domestic social security legislation was discriminatory in that it did not permit a former prisoner to claim pension or other social contributions for his work performed while in prison. On 12 February 2001 the Vilnius Regional Administrative Court rejected this action as unsubstantiated. On 10 May 2001 the Supreme Administrative Court upheld that decision.

The applicant was also unsuccessful in various court procedures in which he sought his conditional release and an amnesty. He also sought a review of his conviction on the ground that the trial court had wrongly interpreted the domestic criminal law. These actions were rejected as having no basis in domestic law.

4. R estitution claim

The land (7.07 hectares) of the applicant ’ s grandfather was nationalised by the Soviet occupying power in the 1940s. Following the restoration of Lithuania ’ s independence in 1990, the applicant ’ s mother obtained compensation in kind for 2 hectares of the grandfather ’ s land, in accordance with the relevant domestic legislation on the “restitution of property rights”. Following his mother ’ s death in 1999, the applicant brought court proceedings on behalf of her estate, claiming restitution of her property rights with respect to the remaining 5.07 hectares of the land.

On 12 April 2001 the Panevėžys Regional Administrative Court accepted the applicant ’ s action, ordering the local administration to restore, by 23 August 2001 , the property rights of the applicant ’ s mother in the 5.07 hectares of land. On 5 June 2001 the judgment was confirmed on appeal by the Supreme Administrative Court .

The judgment of 12 April 2001 was executed on 22 August 2001 with the decision of the local administration to restore the property rights of the applicant ’ s late mother.

B. The relevant domestic law and practise

Article 50 § 1 of the Prison Code applicable at the material time provided that convicted prisoners could send “proposals, applications and complaints to the State authorities, public organisations and officials.”

According to the then Article 50 § 6 of the Prison Code, prisoners ’ correspondence should have been sent exclusively through the prison administration.

Rule 7.3.2 of the Prison Interim Rules applicable at the material time read as follows:

“Proposals, applications and complaints [by a convicted person] raising questions within the competence of the prison administration shall not be sent to the addressee, but shall be examined on the spot. Having examined [such a] proposal, application, or complaint, a prison official shall write a report and ... include it in the convicted person ’ s prison file. Should there be disagreement, the proposal, application or complaint shall be sent to the addressee together with the report. If there is a repeated proposal, application or complaint with the same content, the prison administration will note its previous reply in the report... If the authority, organisation or official addressed by the convicted person are not competent to decide the questions raised, the prison administration shall advise [the prisoner] to re-address the proposal, application or complaint. Should [the prisoner] refuse to do so, the proposal, application or complaint shall be sent to the addressee.”

Other relevant domestic provisions concerning the censorship of prisoners ’ correspondence have been summarised in the judgments of Valašinas v. Lithuania (no. 44558/98, 24.7.2001 §§ 92-97, ECHR 2001-VIII) and Puzinas v. Lithuania (no. 44800/98, 14.3.2002, §§ 15-17).

The relevant domestic provisions concerning the “restitution of property” legislation and the execution of court judgments have been summarised in the Jasiūnienė v. Lithuania judgment (no. 41510/98, 24.10.2000, §§ 22-23).

C OMPLAINTS

1. Under Articles 3, 6, 8, 10, 13 and 14 of the Convention, the applicant complained about the disciplinary penalty of 20 July 1999 . In his view, that penalty testified to the fact that he, as a prisoner, had not been protected by the domestic law and courts from an arbitrary interference by the prison administration with the exercise of his Convention rights and freedoms.

2. Under Articles 3 and 13 of the Convention the applicant complained that his temporary transfer to the Vilnius Remand Prison had been unlawful, and that it had amounted to arbitrary punishment for his activities as an active defender of prisoners ’ rights. He further alleged that the judgment of the Supreme Administrative Court of 27 February 2001 had not been executed.

3. Under Articles 4 and 14 of the Convention and Article 1 of Protocol No. 1, the applicant complained that 25% of his salary had been discounted while working in the prison. Under these provisions he also complained about the insufficiency of the domestic social security legislation which did not permit a prisoner to claim pension or other social subsidies for his prison work.

4. Under Articles 3, 5, 6, 7, 13 and 14 of the Convention and Article 2 of Protocol No. 7, the applicant complained that he had been unable to obtain his conditional release, an amnesty, or the re-opening of the murder case on legal grounds, and that the court procedures determining his complaints in this respect had been unfair.

5. Under Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1, the applicant complained that the local administration had not executed the court judgment of 12 April 2001 . In connection with these proceedings, the applicant also alleged that he had been discriminated against by the courts and other authorities.

THE LAW

1. The applicant alleged a violation of Articles 3, 6, 8, 10, 11, 13 and 14 of the Convention regarding the disciplinary penalty of 20 July 1999 , whereby he had been punished for sending a complaint about detention conditions at Rasų prison.

The Court considers that this complaint is to be examined under Articles 8, 10 and 11 of the Convention only, the relevant parts of which read as follows:

Article 8

“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 ... for the prevention of disorder or crime ...”

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime...”

Article 11

“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime...”

The Government submitted that the statutory requirement for convicted prisoners to send all their communications through the prison administration, and the resultant punishment of the applicant for having breached this rule, had not prevented prisoners from sending their complaints. The requirements under the then 50 § 6 of the Prison Code and Rule 7.3.2 of the Prison Interim Rules had been compatible with the general interest, in order to prevent abuse by prisoners, a more efficient handling of their complaints, and the provision of legal assistance to prisoners by the prison administration. The Government stated that the domestic law applicable at the material time had not prevented the applicant from sending correspondence to private organisations, such as the media, falling within the category of “public organisations”, under the then Article 50 § 1 of the Prison Code. In any event, the fact that the applicant had sent his complaint directly to the media had not been the decisive ground for the penalty imposed on 20 July 1999 . Nor was the penalty related to any other substantive elements of the applicant ’ s letter of 9 July 1999 , such as the fact that he had signed it on behalf of a prisoners ’ association.

The applicant disagreed, claiming that as a convicted prisoner he had not been protected by the domestic law from an arbitrary interference by the prison administration with the exercise of his rights under Article 8 of the Convention. The domestic law applicable at the material time had allowed indiscriminate censorship of convicted prisoners ’ correspondence. As a result he had been afraid that his complaint about the detention conditions would have been censored if it had been sent through the prison administration. The applicant further claimed that the penalty of 20 July 1999 confirmed that the domestic law applicable at the material time had also prevented him from sending complaints to the private media, or complaining on behalf of a prisoners ’ association, in breach of Articles 10 and 11 of the Convention.

In view of the parties ’ observations , the Court considers that th e applicant ’ s complaints under Articles 8, 10 and 11 of the Convention about the censorship of prisoners ’ correspondence and the related disciplinary penalty of 20 July 1999 raise complex questions of fact and law, the determination of which should depend on an examination of the merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

To the extent that the applicant ’ s complaints about the disciplinary penalty of 20 July 1999 have been brought under Articles 3, 6, 13 and 14 of the Convention, the Court finds nothing in the case file to substantiate any appearance of a violation in this respect. It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant next complained that his temporary transfer to the Vilnius Remand Prison had been unlawful, and that it had amounted to arbitrary punishment by the administration of the Rasų Prison for his activities as an active defender of prisoners ’ rights. He further alleged that the judgment of the Supreme Administrative Court of 27 February 2001 in his favour had not been executed.

Article 3 and 13 of the Convention read as follows, respectively:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court is not convinced that the applicant ’ s complaint about the lawfulness of his temporary transfer from one prison to another falls within the scope of the rights guaranteed by Article 3 of the Convention. In any event, it is to be noted that the unlawfulness of that transfer had been acknowledged by the domestic courts, and that the applicant had been awarded pecuniary and non-pecuniary damages in this connection. Furthermore, the court judgment in the applicant ’ s favour was subsequently executed without delay (see the ‘ Facts ’ part above). It follows that the applicant has lost his “victim” status, within the meaning of Article 34 of the Convention, to complain about an alleged violation of Articles 3 and 13 of the Convention in this context (see, mutatis mutandis , Saukaitis v. Lithuania , no. 41774/98, 14.11.2000). It follows that this aspect of the case should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant also alleged a violation of Article 1 of Protocol No. 1 in relation to his salary and work in prison.

Article 1 of Protocol No. 1 read as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

To the extent that the applicant has complained about a quarter of his prison salary being deducted, in accordance with the domestic provisions, he has submitted no evidence to show that such a deduction was arbitrary or incompatible with the general interest, within the meaning of Article 1 of Protocol No. 1. The Court presumes that the deduction is made on account of the fact that the applicant incurs no expenses for board and lodging while in prison. It follows that this aspect of the case is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4 of the Convention.

To the extent that the applicant has complained about the insufficiency of the Lithuanian pensions ’ legislation, the Court recalls that, in principle, it cannot substitute itself for the national authorities in assessing or reviewing the level of financial benefits available under a social assistance scheme (see, Larioshina v. Russia ( dec .), no. 56869/00, 23.4.2002). In any event, as matters stand, it is undisputed that the applicant is not entitled to any pension or social benefits under the relevant domestic legislation. The applicant thus has no “possessions” within the meaning of Article 1 of Protocol No. 1 regarding his possible future entitlement to or the amount of a pension. It follows that this aspect of the case is incompatible ratione materiae with this provision, as well as the other Convention provisions on which he has relied, within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected, pursuant to Article 35 § 4 of the Convention.

4. To the extent that the applicant has complained about his inability to obtain a legal review of the murder case, an amnesty or conditional release, the Court recalls that the Convention does not guarantee a right to such opportunities. A sentence of imprisonment, after conviction by a competent court, which the offender must serve, is justified at the outset by the original trial and appeal proceedings. In particular, Article 6 is not applicable to proceedings of the kind requested by the applicant, as they do not involve the determination of “a criminal charge” (see Ganusauskas v. Lithuania ( dec ), no. 47922/99, 7.9.1999). It follows that this aspect of the case is also incompatible ratione materiae with the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.

5. Finally, to the extent that the applicant has alleged that the court decision of 12 April 2001 was not executed, the Court notes that the allegation is groundless, as the judgment was in fact executed on 22 August 2001 (see the ‘ Facts ’ part above). It follows that there has been no violation of Article 6 of the Convention, Article 1 of Protocol No. 1 or any other Convention provision in this connection. Accordingly, t his aspect of the case is to be rejected as being manifestly ill-founded , pursuant to Article 35 § § 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint s under Articles 8, 10 and 11 of the Convention concerning the censorship of prisoners ’ correspondence and the related disciplinary penalty of 20 July 1999 imposed on him ;

Declares inadmissible the remainder of the application.

S. Dollé J. - P. Costa Registrar President

[1] Around 87 euros ( “ EUR ”)