SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31084/96 by Å tefan VARGA against Slovakia

The European Court of Human Rights (Second Section) , sitting on 25 January 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mr A. Kovler , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 January 1996 and registered on 22 April 1996,

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 Slovak national, born in 1963 and living in Košice . He is represented before the Court by Mr A. Fuchs , a lawyer practising in Košice . The respondent Government are represented by Mr P. Vr šanský , their Agent.

A. The circumstances of the case

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

On 14 September 1993, while he was serving a prison term in the Ko Å¡ice-Å aca prison, the applicant sent an envelope by registered mail. The address on the envelope read as follows:

“Head of the Post Office

POST OFFICE

Ko Å¡ice

040 20 “.

The envelope had registration number R 925. It contained another envelope. The latter was addressed to the applicant’s parents and contained a letter which the applicant wanted to be sent to Amnesty International.

The main envelope also contained an accompanying letter for the head of the Košice 20 post office. In the letter the applicant addressed the head of the Košice 20 post office “Dear Madam” and requested her to deliver the enclosed envelope to his parents at their expenses. The applicant explained that he was serving a prison sentence and that he could not send letters to certain addresses.

On 15 September 1993 the applicant’s registered mail arrived at the Ko šice 1 post office which is the main post office in the city. An employee in charge of correspondence addressed to the Slovak Post opened the main envelope. After having read the applicant’s request addressed to the head of the Košice 20 post office, she re-directed the applicant’s mail, in the original envelope, to the head of the Košice 12 post office which is in charge of delivering mail in the quarter where the applicant’s parents live. The Ko šice 20 post office is situated in the same quarter, but it is not charged with delivering mail to addressees.

The applicant’s registered letter R 925 arrived at the Ko Å¡ice 12 post office on 16 September 1993. Its head could not comply with the applicant’s request that the enclosed envelope be delivered to his parents at their expenses as postal regulations require that the postage be paid in advance. 

On 27 January 1994 the applicant was released from prison. He complained to the post that his registered mail had not been delivered.

Following the applicant ’s complaint the head of the Ko š ice 12 post office sent the envelope addressed to the applicant’s parents back at the applicant’s address in the Košice-Šaca prison by ordinary mail in accordance with the relevant regulation. On 17 March 1994 the head of the Košice 20 post office informed the applicant accordingly.

On 23 March 1994 the director of the Košice-Šaca prison administration informed the applicant that according to the register of prisoners’ mail his registered letter R 925 had not been returned to the prison.

On 21 October 1994 the head of the Supervision Department of the Slovak Post informed the applicant that his registered letter had been delivered to the addressee, i.e. the head of the post office concerned, and that he had therefore no right to compensation for its loss. The applicant was further informed that the head of the post office had not been entitled to deliver the enclosed envelope to the applicant’s parents at their expenses as requested by the applicant since Slovak Post did not provide such a service.

The letter by the head of the Supervision Department also stated that the head of the Košice 12 post office had sent the envelope in question back at the applicant’s address in the Košice-Šaca prison by non-registered mail. Since Slovak Post kept no records of the distribution of such mail, it was impossible to establish where the letter had been lost.

On 11 April 1995 the applicant complained about the interference with his correspondence to the Constitutional Court ( Ústavný súd ). On 13 April 1995 the applicant was requested to submit documentary evidence. He was further informed that in the proceedings before the Constitutional Court he had to be represented by a lawyer.

On 24 April 1995 the applicant supplemented his submissions to the Constitutional Court. He stated that he was indigent and requested that a lawyer be appointed to represent him.

On 7 September 1995 a judge of the Constitutional Court requested that the applicant appoint, within thirty days, a lawyer representing him in the proceedings. The letter further stated that the Constitutional Court lacked jurisdiction to appoint a lawyer ex officio .

On 19 September 1995 the applicant requested the Slovak Bar Association that a lawyer be appointed to represent him before the Constituional Court. He explained that several lawyers had refused to represent him and that he was indigent.

On 29 November 1995 the applicant informed the Constitutional Court that he was detained and that the Slovak Bar Association had not yet appointed a lawyer to him.

On 16 January 1996 the Constitutional Court rejected the applicant’s petition. It held that the applicant’s submissions were not sufficient for proceedings before the Constitutional Court to be started. The decision stated that the applicant had not been deprived of his liberty throughout the time during which his petition had been prepared for a preliminary examination. In the Constitutional Court’s view, the applicant had had enough time to specify, possibly with the assistance of a lawyer, the evidence which he proposed to take and the decision which he sought to obtain.

B. Relevant domestic law

At the relevant time the indication of addresses on mail was governed by Section 11 of the Postal Regulation of 1989 ( Vyhláška o právach a povinnostiach pošty a jej používateľov ). The relevant provisions read as follows:

Paragraph 2 provides that the address must be indicated accurately with a view to preventing any doubts as to the place and person to whom the mail is to be delivered. Post offices charged with the delivery of mail are authorised to determine whether an address is indicated correctly and accurately.

Pursuant to paragraph 3, mail with inaccurate or incomplete address shall be returned to the sender.

Paragraph 5 (a) provides that address on mail which is to be delivered within the country shall indicate, in the first place, the addressee, i.e. the first name and surname of a person or the name of a company or organisation.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that the staff of the Ko Å¡ice 1 post office unlawfully opened his registered mail addressed to the head of the Ko Å¡ice 20 post office.

2. The applicant alleges a violation of Article 13 of the Convention in that he had no effective remedy at his disposal in this respect.

THE LAW

1. The applicant complains that his correspondence was interfered with by the staff of the Ko Å¡ ice 1 post office. He alleges a violation of Article 8 of the Convention which provides 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 object that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They maintain that it was open to the applicant to file the complaint which he now makes before the Court to administrative authorities which are in charge of postal services. Such a complaint would be examined in accordance with the relevant provisions of the Post Act of 1946 and the Complaints Act of 1998 and, if justified, it would result in sanctioning the persons concerned.

The Government further recall that the Constitutional Court rejected the applicant’s petition as the applicant had failed to appoint a lawyer representing him in the proceedings as required by the Constitutional Court Act. They submit that it is still open to the applicant to have his case examined by the Constitutional Court provided that he submits his petition in accordance with the formal requirements laid down in the relevant law.

As to the merits, the Government contend that there has been no interference with the applicant’s right to respect for his correspondence as guaranteed by Article 8 § 1 of the Convention. They submit, in particular, that the address indicated on the applicant’s registered mail was incomplete. In the Government’s view, the staff of the Ko šice 1 post office could reasonably assume that the mail was addressed to the post as such and they were therefore authorised to open the envelope with a view to establishing the purpose of the letter.

The applicant maintains that the application cannot be rejected for his failure to exhaust domestic remedies. He submits, in particular, that both proceedings under the Post Act of 1946 taken together with the Complaints Act of 1998 and proceedings brought upon a constitutional petition may only give rise to a declaration that a person’s complaint was justified or that such person’s constitutional right to respect for his or her correspondence was violated. However, neither administrative authorities in charge of postal services nor the Constitutional Court have jurisdiction to award compensation for non-pecuniary damage in such cases. The applicant concludes that the remedies invoked by the Government cannot be regarded as effective for the purposes of Article 35 § 1 of the Convention.

As to the merits of the case, the applicant submits that the opening of his envelope sent by registered mail by the staff of the Košice 1 post office amounted to an interference with his rights under Article 8 § 1 of the Convention. He contends that, in case that the staff of the Ko šice 1 post office considered the address on his registered mail to be incomplete or inaccurate, they should have sent the envelope back at his address without opening it in accordance with Section 11 (3) of the Postal Regulation of 1989. The applicant concludes that the interference was not in accordance with the law as required by paragraph 2 of Article 8.

The Court does not consider it necessary to determine whether or not the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention has been complied with as, in any event, the application is inadmissible for the following reasons.

It is not contested between the parties that the purpose of the applicant’s registered letter R 925 was to have the envelope which was included in it forwarded to his parents. This envelope contained submissions which the applicant expected his parents to send to Amnesty International. The applicant does not complain that this envelope was opened or that this correspondence was interfered with.

The applicant complains that the main envelope which he addressed to the head of the Ko Å¡ice 20 post office was opened by the staff of the Ko Å¡ice 1 post office.

The Court accepts the Government’s argument that an employee of the Ko šice 1 post office in charge of the correspondence addressed to the Slovak Post opened the applicant’s registered letter as she assumed that it was addressed to the post as an institution and not to a particular person. In fact, the address on the main envelope did not indicate the name of any individual. Had the applicant intended to send the letter to the head of the Ko šice 20 post office as a particular individual, he would have had to indicate her first name and surname in the first line of the address in accordance with Section 11 (5) of the Postal Regulation. Furthermore, the applicant does not maintain that he knew the head of the Ko šice 20 post office in person.

After the employee of the Košice 1 post office had realised that the purpose of the applicant’s mail was to have the envelope included in it delivered to his parents and that the Ko šice 20 post office does not deliver mail , she re-addressed the main envelope together with its contents to the head of the Ko šice 12 post office which is in charge of delivering mail in the area concerned .

The applicant’s registered letter thus reached the head of the post office delivering mail in the quarter where his parents live in accordance with what was its purpose. The applicant’s request that the enclosed envelope be delivered to his parents at their expenses could not be complied with as it was contrary to the postal regulations in force. The head of the post office concerned therefore returned the envelope, apparently without having opened it, back to the applicant’s address in prison in accordance with the relevant regulation. The applicant has not put forward any relevant argument as to why it was impossible for him to send his letter from prison directly either to his parents or to Amnesty International.

In these circumstances, the Court finds that the facts of the case do not disclose any appearance of an interference with the applicant’s right to respect for his correspondence as guaranteed by Article 8 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains that he had no effective remedy at his disposal as regards the alleged interference with his right to respect for his correspondence. He alleges a violation of Article 13 of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in this 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 has found above that the applicant’s complaint under Article 8 of the Convention is manifestly ill-founded. This grievance cannot, therefore, be regarded as “arguable”. Accordingly it does not attract the guarantees set out in Article 13 of the Convention (see the Powell and Rayner v. the United Kingdom judgment of 21 Feburary 1990, Series A no. 172, § 31).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President