THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44800/98 by Alvydas PUZINAS against Lithuania

The European Court of Human Rights ( Third Section ), sitting on 14 March 2000 as a Chamber composed of

Sir Nicolas Bratza, President ,

Mr J.-P. Costa,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mrs F. Tulkens,

Mr K. Jungwiert,

Mrs H.S. Greve, judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 4 September 1998 and registered on 2 December 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a Lithuanian national, born in 1952. At present he is detained in the Sniego Prison in Vilnius.

A. Particular circumstances of the case

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

Since 20 March 1991 the applicant has been serving a sentence of 13 years’ imprisonment for aggravated murder. By a Presidential decree of pardon of 27 June 1998 the applicant’s sentence was reduced by two years.

On 21 July 1998 the applicant applied to the prison administration, requesting his transfer to the Kybartai “prison-settlement” ( kolonija-gyvenvietÄ— ) as he had completed two thirds of his sentence. The applicant asserted that he was of model behaviour and that he was accordingly entitled to serve the remainder of the sentence in the most lenient type of prison pursuant to Articles 22 and 67 of the Prison Code. The prison administration refused his request.

The applicant wrote numerous complaints about this refusal to various governmental and parliamentary institutions in Lithuania. His applications were rejected on the ground that there was no special “prison-settlement” for persons convicted of serious crimes as the Kybartai “prison-settlement” could accommodate only prisoners convicted of minor offences. He was also informed that the prison authorities had discretion to decide whether or not a detainee could be transferred to a more lenient prison.

The applicant also unsuccessfully complained that he was unable to change prisons to various intergovernmental and international non-governmental bodies, such as the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, the Council of the Baltic Sea States (hereinafter referred to as “the CBSS”) and Amnesty International.

The applicant submits that on 20 October 1998 he received a letter dated 16 October 1998 from the CBSS Commissioner on Democratic Institutions and Human Rights based in Copenhagen. The applicant states that the letter had been opened when he received it.

The applicant further alleges that on 2 November 1998 he received a letter dated 21 October 1998 from the Secretariat of the European Commission of Human Rights. He states that the above letter had also been subjected to initial screening by the prison administration before he had access to it.

On 3 December 1998 the applicant was reprimanded in disciplinary proceedings.

He lodged with the Ombudsman a complaint concerning the reprimand and alleged breaches of the freedom of his correspondence.

On 22 December 1998 the Ombudsman found that the prison administration had censored a letter from the applicant to his wife in which he had accused the prison staff of theft. The Ombudsman found that, as a consequence, on 30 October 1998 the prison administration had disciplined the applicant for slander. The Ombudsman held that the applicant’s letters to his wife pertained to the field of his private life, and that his allegations of theft did not constitute any formal suggestions, applications or complaints for the purpose of Rule 7 § 3 (4) of the Prison Rules. The Ombudsman concluded that the disciplinary penalty was unlawful, and suggested that it should be lifted. The Ombudsman also found that the letter from the CBSS of 16 October 1998 had been opened, but that no enclosures had been found therewith. He held that the right to respect for correspondence under Article 8 of the European Convention of Human Rights was “almost inviolable”, but that the State was allowed to censor prisoners’ letters in certain cases. The Ombudsman found no violation of the applicant’s right to respect for his correspondence.

On the basis of the Ombudsman’s conclusions, on 29 December 1998 the Director of the Penitentiary Department lifted the unlawful disciplinary penalty.

B. Relevant domestic law

Article 22 of the Prison Code envisages a special category of “prison-settlements for persons, who have clearly demonstrated an improvement”. Article 67 of the Code provides that “convicted persons, who have clearly demonstrated an improvement, may be transferred … to a prison-settlement”.

Article 22 of the Constitution provides that correspondence of a person is inviolable. Persons shall be protected by courts from arbitrary or unlawful interference with that right. 

Article 41 of the Prison Code provides that “convicted persons’ correspondence shall be censored”.

Rule 7 § 1 (7) of the Prison Interim Rules states that “convicted persons’ letters (except those to a prosecutor) sent from or received in a prison are subject to censorship”.

Rule 7 § 1 (8) states that any letters containing “cryptography [and] cynical or threatening statements shall not be sent to the addressee”.

Rule 7 § 3 (4) provides that written “suggestions, applications or complaints containing insults, jargon or obscenities shall not be sent, [and that] disciplinary penalties may be imposed on the persons who have signed” such papers.

Pursuant to Article 102 of the Constitution and the relevant provisions of the Constitutional Court Act, the Constitutional Court can examine actions alleging incompatibility with the Constitution of a statute, by-law or rule. Only a limited number of official bodies, including courts, can complain to the Constitutional Court. No private individual can lodge an action with the Constitutional Court.

COMPLAINTS

1. Under Article 8 of the Convention the applicant alleges that his letters have been opened in his absence and censored by the prison administration.

2. He further complains of the disciplinary penalty imposed by the prison administration for his statements contained in a letter to his wife whereby he had accused the prison staff of theft. He claims that the rights to respect for his private life and freedom of expression were unjustifiably interfered with as a result.

3. Under Articles 3, 7, 8 and 12 of the Convention, the applicant complains that he has been unable to benefit from the provisions of Articles 22 and 67 of the Prison Code which envisages a possibility for his transfer to a “prison-settlement”, where he could live with his wife.

PROCEDURE

The application was introduced on 4 September 1998 and registered on 2 December 1998.

On 20 April 1999 the Court decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 3 July 1999. The applicant replied on 31 August 1999.

THE LAW

1. Under Article 8 of the Convention the applicant complains about the control of his correspondence by the prison administration.

Article 8 states 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 Government concede that censorship of the applicant’s correspondence is permitted under the Prison Code and the Prison Interim Rules. They state, however, that the applicant did not exhaust domestic remedies in respect of this part of the application, as he failed to complain to the prison, prosecuting and other executive authorities, the Ombudsman or the courts. The Prison Code and the Prison Interim Rules may be incompatible with Article 22 of the Constitution, which establishes freedom of communication. The applicant could have complained to a court, alleging, by reference to the Constitution, that the censorship of his correspondence breached his personal rights. The judge could then have applied to the Constitutional Court, requesting a ruling on the compliance of the above statutory provisions with the Constitution. In the Government’s view, the Court is precluded by Article 35 § 1 of the Convention from examining this part of the application. They do not comment on the merits of the complaint.   

The applicant argues that he had no remedies to exhaust. This is confirmed by the fact that the Ombudsman rejected his complaints about the censorship.

The Court notes that the domestic law permitted censorship of the applicant’s correspondence, and any domestic avenue was devoid of any prospect of success. The procedure before the Constitutional Court suggested by the Government cannot be regarded as a remedy within the meaning of Article 35 § 1 of the Convention as the Constitutional Court cannot afford redress for a violation of the rights of an individual, but may only examine the compatibility of a law with the Constitution. In any event, a constitutional action was not accessible to the applicant personally or directly (see the ‘Relevant domestic law’ part above). It follows that this part of the application cannot be rejected for failure to exhaust domestic remedies.

The Court has had regard to the parties’ other observations. It considers that this part of the application raises 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.

2. The applicant further complains of the disciplinary penalty imposed by the prison administration for his statements contained in a letter to his wife whereby he had accused the prison staff of theft.

The Court considers that the above complaint falls to be examined under Article 10 of the Convention, which provides, insofar as relevant, as follows:

“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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Government stress that the disciplinary penalty in question was revoked as a result of the Ombudsman’s conclusions.

The Court notes that the disciplinary measure against the applicant has been lifted. The revocation constituted in essence an acknowledgement of a breach of the applicant’s personal rights. The Court is satisfied that the authorities afforded the applicant appropriate redress in regard to the above complaint. It follows that he may no longer claim in this connection to be a victim of a violation of the Convention within the meaning of Article 34 (see, mutatis mutandis , the Dalban v. Romania judgment of 28 September 1999, unpublished , §§ 44-45). 

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

3. The applicant further complains under Articles 3, 7, 8 and 12 of the Convention that he has been unable to change prison.

Article 3 prohibits torture, inhuman or degrading treatment or punishment. Article 7 prohibits retroactive criminal legislation or penalties and Article 12 guarantees the right to marry and found a family.

However, the Convention does not guarantee, as such, any right to a specific regime of imprisonment. Reference can be made in this connection to the constant case-law of the Commission, which established that the refusal to transfer a detainee from one prison to another, in the absence of any exigencies pertaining to his state of health, does not constitute inhuman or degrading treatment under Article 3 (see, inter alia , Eur. Comm. HR, no. 21915/93, Dec. 12.1.1995, D.R. 80, pp. 108, 128-130). Nor is there any indication that by the refusal the prison authorities prevented the applicant from seeing his wife, thereby interfering with his family life under Article 8. In respect of the remainder of the applicant’s allegations in this part of the application, the Court considers that they are wholly unsubstantiated and do not disclose any appearance of a violation of the Convention.

It follows that this part of the application is also 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 complaints about the control of his correspondence;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza Registrar President