FIRST SECTION

DECISION

Application no. 45558/15 Ivan MARIČÁK against Slovakia

The European Court of Human Rights (First Section), sitting on 18 May 2021 as a Committee composed of:

Gilberto Felici, President, Alena Poláčková, Raffaele Sabato, judges, and Liv Tigerstedt, Deputy S ection Registrar ,

Having regard to the above application lodged on 12 October 2015,

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 Ivan Maričák, is a Slovak national, who was born in 1978 and is currently serving a term in Ilava prison. He was represented before the Court by Ms T. Vorobelová, a lawyer practising in Košice.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková, who was succeeded by their co ‑ Agent, Ms M. Bálintová.

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

3 . The applicant was jailed for twenty-five years for robbery and breach of the peace (for details see Maričák v. Slovakia (dec.), no. 26621/10, 2 June 2011). He had six previous convictions, including two other counts of robbery, and bullying in the army. In view of this history, he was detained under a high-security regime.

4 . On 2 March 2012 a private letter was received at the applicant ’ s detention facility, addressed to him by an acquaintance. As it would be established in the ensuing proceedings, the letter contained the following passages:

“...his eminence lieutenant colonel [name], ... [you should] make a complaint about the doctor, who is apparently another of the idiots of [the place where the applicant is detained], ... I can do one thing – write a letter to that director, have it printed as a poster and displayed all over [the city where the applicant is detained], so that it is known even in the pub across the street, what a weirdo sits there again, ... no prison guard, not even with the rank of a Reichsmarschall should be deciding about that, ... perhaps it would help to kick someone ’ s backside in front of the prison, as [another person – presumably a notorious inmate] has arranged for the doctor in Bratislava.”

5 . On the same day the applicant was informed by the prison ’ s educational officer in an interview that the letter had been intercepted, included in the applicant ’ s personal file, and would not be passed on to him.

6 . A written note of the interview indicated as the reason for these measures that the letter included information with defamatory content, which could interfere with the purpose of the sentence. A reference was made to section 25(2) and (4) of the Execution of Prison Sentences Act (Law no. 475/2005 Coll., as applicable at that time – “EPS Act”), which provides for the withholding of a letter on the above-mentioned grounds. The note further indicated that the applicant had been edified about the purpose of the sentence, with reference to section 11 of that Act, with an emphasis on teaching him to respect the law and social conventions as well as to respect others and himself.

7 . The applicant signed the note, expressing disagreement with the retention of the letter since he had not been familiarised with its content. He then pursued his argument via repeated submissions to the director of the prison, the Directorate General of the Prison Guards, the Ministry of Justice and the Public Prosecution Service (PPS). He also addressed the Constitutional Court twice (for details see below).

8 . In so far as can be established from the documents submitted to the Court, he developed his argument as follows. The applicable law was not sufficiently precise since it provided for no definition of what constituted “defamatory content”. The interpretation of that category was accordingly subjective and had been arbitrary in his case. There was no appeal. While he was unable to read the letter, any member of the prison personnel with access to his file could do so. As regards the requirement of “in accordance with the law”, the applicant relied on the Court ’ s judgments in the cases of Niedbała v. Poland ( no. 27915/95, 4 July 2000), and Radaj v. Poland (nos. 29537/95 and 35453/97, 28 November 2002). As to the “necessity in a democratic society” to intercept inmates ’ private letters “calculated to hold the authorities up to contempt”, he referred to the Court ’ s judgment in the case of Pfeifer and Plankl v. Austria (25 February 1992, Series A no. 227).

9 . The authorities ’ response included the following.

The applicant was again informed of the reasons for the retention of the letter in an interview with an educational officer, acting on the direct authority of the Director of the Prison. The Directorate General of the Prison Guards carried out an in situ inspection. A repeated reference was made to the above-mentioned legal provision and the problematic passages of the letter were communicated to the applicant as cited above (see paragraph 4 above).

10 . The applicant ’ s first constitutional complaint, directed against the administration of his prison, was rejected on 30 May 2013 on the ground that the matter fell within the jurisdiction of the PPS, which excluded the jurisdiction of the Constitutional Court under the principle of subsidiarity.

11 . In response to the applicant ’ s subsequent complaints, upon having reviewed the case material, the PPS concurred with the prison administration that the letter contained information falling within the ambit of section 25(2) of the EPS Act. The PPS explained to the applicant in detail the regime for the treatment of such letters and added that information capable of interfering with the purpose of the sentence included information prompting criminal activities. In sum, no factual or legal error had been found in the way the letter and the applicant ’ s subsequent complaints had been handled.

12 . The applicant ’ s second constitutional complaint was rejected on 14 April 2015. The Constitutional Court noted that the applicant had again directed the complaint against the administration of the prison. However, as already noted in its previous decision, the principle of subsidiarity prevented the Constitutional Court from entertaining such a complaint since the matter fell within the jurisdiction of another authority, the PPS. To that extent, the matter was res judicata by the decision of 30 May 2013. In accordance with established practice, if the applicant was dissatisfied with how the PPS had handled his subsequent complaints, he could and should have directed his constitutional complaint against the PPS.

The decision was served on the applicant on 19 June 2015 and it was not amenable to appeal.

13 . The Criminal Code (Law no. 300/2005 Coll.) provides for the purpose of a sentence to be to protect society from the perpetrators by preventing them from engaging in criminal activities, by guiding them to rehabilitation and by discouraging others from offending (Article 34 § 1).

14 . The legal regime for prisoners ’ correspondence essentially consists of the provisions of the EPS Act, with additional details being provided in the Execution of Prison Sentences Order (Decree of the Minister of Justice no. 368/2008 Coll. – “EPS Order”).

15 . Under the EPS Act, the treatment of prisoners is to be aimed at supporting and developing their sense of responsibility, respect for the law and social conventions, positive personality traits and respect for others and oneself (section 11).

16 . Provisions concerning prisoners ’ correspondence are laid down in section 25 of the Act. Unless provided otherwise, they are entitled to send and receive correspondence without any restrictions (paragraph 1). If they are unable to pay the costs, the prison administration is to pay a certain number of letters per month (paragraph 4). Their correspondence may be inspected only by the director of the respective prison facility or by another officer on the director ’ s authority (paragraph 1). Correspondence with an attorney and with various national and international institutions must not be inspected (paragraph 3).

17 . If it is established upon inspection that a prisoner ’ s correspondence contains information which has defamatory content, may interfere with the purpose of the sentence or the content gives rise to suspicion of criminal activities being committed, the correspondence is to be intercepted (paragraph 2) and included in the prisoner ’ s file, and the prisoner is to be informed, with any further measures being taken as appropriate (paragraph 4).

18 . Incoming correspondence is to be passed on to the addressee upon inspection without delay, unless it (a) contains impermissible information or objects, or (b) is in a language different from the State official language (section 37(2) of the EPS Order).

19 . In section 37, the EPS Order further regulates matters such as the translation of correspondence in other than the State official language (paragraph 3), the keeping of records of incoming and outgoing correspondence (paragraph 4), and the keeping and storing of prisoners ’ correspondence (paragraph 5).

20 . In order to assert and seek protection of their rights and interests, prisoners are entitled to make requests, complaints and motions to national and international authorities, as laid down in section 36(1) of the EPS Act. Supervision of respect for lawfulness in prison facilities is entrusted to the PPS (section 96 of the EPS Act and sections 4(1)(b) and 18(1) of the PPS Act (Law no. 153/2001 Coll., as applicable at the given time). In its exercise, the PPS is entitled to carry out inspections (section 18(2)(a) of the PPS Act) and has the power to annul decisions, orders or measures taken by the prison authorities and to suspend their implementation (section 18(2)(b) of the PPS Act). This jurisdiction may be engaged by means of an individual application (section 31(1) of the PPS Act) and entails the power for the PPS to take such measures as are necessary for the rectification of any errors detected, unless this is within the exclusive competence of another authority (sections 31(1) and 35(1) of the PPS Act).

COMPLAINTS

21 . The applicant complained that the retention of the letter in question and the rejection of his second constitutional complaint by the Constitutional Court on 14 April 2015 had been in violation of his rights under Articles 8 and 13 of the Convention.

THE LAW

22 . The applicant alleged a violation of his rights under Article 8 of the Convention in that the retention of the impugned letter (i) had not been “in accordance with the law” for the applicable law lacked the requisite precision and its application depended solely on the subjective assessment by the prison authorities, which was subject to no appeal, and (ii) had been arbitrary and as such not “necessary in a democratic society”.

The relevant part of Article 8 provides as follows:

“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, for the protection of ... morals, or for the protection of the rights and freedoms of others.”

23 . The Government objected, primarily, that the applicant had failed to exhaust domestic remedies because he had not raised his complaints before the Constitutional Court in accordance with the applicable rules and established practice. Moreover, in order to comply with the said requirement, the applicant could and should have asserted his rights also before the ordinary courts by way of an action for the protection of personal integrity under Article 11 et seq. of the Civil Code.

24 . Alternatively, should the Court not accept that in order to comply with the requirement of exhaustion of domestic remedies the applicant was required to assert his rights before the PPS prior to turning to the Constitutional Court, the Government asserted that the final domestic decision was given by the latter on 30 May 2013, which was more than six months before the introduction of the application.

25 . In any event, the Government considered that the complaint was manifestly ill-founded in that the law provided for an adequate framework for the treatment of prisoners ’ correspondence, there had been no dispute as regards the legitimacy of the aim served by the contested measure and the measure had served two, albeit partly overlapping, aims. In particular, the passage of the letter concerning the kicking of “...someone ’ s backside in front of the prison ...” was not only insulting, presumably in relation to the prison ’ s doctor or director, but also prompted their public humiliation with an element of physical violence. This had to be seen in the context of the applicant ’ s criminal history and the educational purpose of his sentence.

26 . As to the non-exhaustion objection, the applicant argued that the remedy to be exhausted was the constitutional complaint, which he had duly done. In so far as his second constitutional complaint had been rejected because it should have been directed against the PPS, the applicant disagreed. The body responsible for the original violation was the administration of his prison and he should have had the possibility to complain about it before the Constitutional Court directly. Moreover, an action for the protection of personal integrity was not a remedy capable of addressing the essence of his grievance and the Constitutional Court itself had referred him specifically to the PPS and not to the action in question.

27 . On the substance, the applicant contended that the purpose of his sentence had been fulfilled already by its imposition on him and that the letter was to have been passed on to him since it fell in neither of the categories envisaged in section 37(2) of the EPS Order (see paragraph 18 above). Although the grounds given for the retention of the letter were that its content was defamatory and that it could interfere with the purpose of his sentence, it had initially not been specified at all how the letter should have come under these grounds. He had put up with the inspection of his correspondence, but considered its retention arbitrary, relying on the Court ’ s case-law as to the necessity in a democratic society to interfere with private correspondence of prisoners aimed to hold the authorities up to contempt.

28 . The Court notes that the Government have raised a set of alternative but interrelated objections under Article 35 § 1 of the Convention. It considers that it is unnecessary to give them a separate answer because the application is in any event inadmissible on the following grounds.

29 . There has not been any doubt that Article 8 of the Convention is applicable to the facts of the present case and that the retention of the letter addressed to the applicant constituted an interference with his right to respect for his correspondence (see, for example, Silver and Others v. the United Kingdom , 25 March 1983, § 84, Series A no. 61). It is likewise beyond controversy that this interference followed one or more of the legitimate aims envisaged by the second paragraph of that Article (see, for example, ibid., § 96, and Pfeifer and Plankl v. Austria , 25 February 1992, § 44, Series A no. 227). What remains in dispute however is specifically whether the interference was “in accordance with the law” and “necessary in a democratic society”.

30 . On the former count, the Court reiterates first of all that the expression “in accordance with the law” does not only necessitate compliance with domestic law, but also relates to the quality of that law (for recapitulation of the applicable principles, see, for example, NiedbaÅ‚a v. Poland , no. 27915/95, § 79, 4 July 2000, with further references). In that respect, in the present case, the legal regime for the treatment of prisoners ’ correspondence is essentially embodied in the EPS Act and the EPS Order. This legislation in principle provides for unlimited correspondence, with detailed rules as to which correspondence may and may not be inspected, as well as to under which circumstances correspondence is to be retained. The rules are primarily to be interpreted and applied by the prison administration, which is however subject to the supervision of the PPS, and the effectiveness of that supervision is subject to review by the Constitutional Court. In that connection, it is noted that the dispute between the parties as to the exhaustion of domestic remedies did not concern the functioning of this mechanism but rather the question of how the matter was to be brought before the Constitutional Court. In these circumstances, the present case must be distinguished from those where an interference was found not to have been in accordance with the law within the meaning of the second paragraph of Article 8 on account of deficiencies in the applicable legal framework (see, for example, Calogero Diana v. Italy , 15 November 1996, § 33, Reports of Judgments and Decisions 1996 ‑ V; Petra v. Romania , 23 September 1998, § 37, Reports of Judgments and Decisions 1998 ‑ VII; and Radaj v. Poland , nos. 29537/95 and 35453/97, § 24, 28 November 2002).

31 . Still on the subject of lawfulness, the applicant ’ s complaint essentially is not about any general restriction on his correspondence, but rather about the legal definition of a particular ground for retaining a letter to him, its interpretation by the authorities and, ultimately, the repercussions of that interpretation in a specific case. The grounds in question were undoubtedly provided for by section 25(2) of the EPS Act and were that the letter contained information which had defamatory content, and which could interfere with the purpose of his sentence.

32 . In that respect, it has been recognised that while a law which confers a discretion must indicate the scope of that discretion, it is impossible to attain absolute certainty in the framing of the law, and the likely outcome of any search for certainty would be excessive rigidity (see, among many other authorities, Calogero Diana , cited above, § 32).

33 . In the present case, the contested criteria were primarily interpreted by the prison administration and their interpretation was reviewed and complemented by the PPS. In particular, the criteria were interpreted in their legislative context as being linked to the purpose of the sentence, seen in the light of section 11 of the EPS Act, and encompassing information prompting criminal activities.

34 . In this respect, the Court finds it opportune to distinguish the present application from the case of Petra (cited above, §§ 37-39), in which an excessive latitude was found to have been left to the national authorities in relation to a ground for an interference with an inmate ’ s correspondence because it was “unsuited to the process of rehabilitating” the prisoner. In particular, in that case, the monitoring of that applicant ’ s correspondence was “ automatic, independent of any decision by a judicial authority and unappealable”. Moreover, the monitoring was subject to implementing regulations that were not public. It was in this context that the Court found that the applicable national law did not indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities of the respondent State. However, in the present case the national authorities ’ discretion was subject to detailed and undoubtedly accessible rules, with a review mechanism as specified above.

35 . Moreover, in so far as the applicant argued before the Court that the handling of the letter had been in breach of section 37(2) of the EPS Order, and leaving aside that no such argument appears to have been raised at the domestic level, the Court notes that the letter was not handed over to him precisely because it was found to contain impermissible information within the meaning of that provision, in particular such information that fell within the ambit of section 25(2) of the EPS Act.

36 . In these circumstances, the Court has found nothing to support a conclusion that the interference with the applicant ’ s right to respect for his correspondence was not in accordance with the law under Article 8.

37 . Moving on to whether the interference was necessary in a democratic society, the Court reiterates that, in assessing the right of a convicted prisoner to respect for his correspondence, regard has to be paid to the ordinary and reasonable requirements of imprisonment and that it has been recognised that some measure of control over prisoners ’ correspondence is called for and is not of itself incompatible with the Convention (see, for example, Silver and Others , cited above, § 98, and Varga v. Slovakia (dec.), no. 47811/99, 22 June 2004).

38 . In the present case, in the spirit of what has already been noted above, the essence of the applicant ’ s grievance is not any general restriction on his correspondence, but rather his disagreement with the authorities ’ conclusion that a particular piece of information in a single letter addressed to him was of a defamatory character and capable of interfering with the purpose of his sentence.

39 . In that regard, the Court notes that a copy of the letter has not been produced before the Court and that, accordingly, its assessment is by necessity based on the content of the case file as it stands, with a particular focus on the quotation of the passage of the letter that was found in breach of section 25(2) of the EPS Act and its context.

40 . The grounds relied on by the national authorities were twofold, that the letter contained information (a) with defamatory content and (b) capable of interfering with the purpose of the sentence.

41 . The former ground by implication pertained to the prison director and doctor, who were referred to in an ironic or even insulting language, and may well appear to be “calculated to hold the authorities up to contempt” or to contain “material deliberately calculated to hold the prison authorities up to contempt”, which the Court found not to be necessary in a democratic society to be stopped in the context of private correspondence of prisoners (see Silver and Others , cited above, §§ 64 and 99 (c) and, a fortiori , Pfeifer and Plankl , cited above, § 47).

42 . It is true that the prison authorities applied the two grounds in a somewhat amalgamated manner, not distinguishing the defamatory ground from any other elements in the impugned content capable of interfering with the purpose of the applicant ’ s sentence. Nevertheless, it remains a fact that the letter was retained also on the latter ground, which the PPS developed as including information prompting criminal activity. On the particular facts, the Court notes specifically the part concerning a suggestion of public humiliation, presumably of the prison doctor or director, with a measure of physical violence (“...perhaps it would help to kick someone ’ s backside in front of the prison ...”). This threat of violence, which goes beyond a purely private context, justified the interference by the prison authorities and, in the Court ’ s view, must thus be considered as necessary in a democratic society (see Silver and Others , cited above, §§ 65, 103 and 105, and, a contrario , Pfeifer and Plankl , cited above, § 47).

43 . Moreover, the applicant was immediately informed of the letter and the reasons for its retention, and the problematic part of the letter was later communicated to him, together with a detailed explanation of the applicable framework, which included the aspect of the purpose of his sentence. Although it was not specifically mentioned at the national level, the Court considers that the purpose of the applicant ’ s sentence is not to be seen in the abstract and that it must not be dissociated from the fact that the sentence was for a violent offence, with a preceding history of violent offences. The Court considers that it is in particular in this broader factual and legislative context that the retention of the letter must be viewed. It is on similar grounds that it cannot subscribe to the applicant ’ s view that the purpose of his sentence has been fulfilled by the sheer fact of its being imposed.

44 . As regards the remainder of the letter, which may be presumed not to contain any further prohibited information, this does not appear to be the genuine object of this application. First, this part of the letter was not prohibited as such. Second, the applicant has not asked the prison authorities to hand over to him that part of the letter in a redacted or other appropriate form. Third, there is no indication that the applicant was prevented from receiving correspondence free of any prohibited content from the sender of the impugned letter, or anyone else for that matter. And fourth, should there be an argument that in consequence of the disclosure of the prohibited part of the letter to the applicant there no longer was any ground for withholding its remainder, no such argument was raised at the domestic level or before the Court.

45 . Lastly, as noted above, the applicant ’ s disagreement with the authorities ’ interpretation of the contested criterion was reviewed by the PPS, with the availability of subsequent judicial control by the Constitutional Court. In the process, the applicant had and made use of the opportunity to advance his arguments in writing and in oral interviews, the authorities examined the respective files and conduced an in situ inspection, and there has been no allegation or other indication that any of the applicant ’ s arguments did not received due consideration.

46 . Accordingly, to the extent the application has been substantiated, the Court finds that the material in its possession discloses no appearance of a violation of the applicant ’ s rights under Article 8 of the Convention. The complaint under that provision is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

47 . The applicant also complained that the rejection of his second constitutional complaint had been arbitrary and, as such, in violation of his rights under Article 13 of the Convention, taken in conjunction with Article 8. Article 13 reads as follows:

“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.”

48 . The Government objected that there was no arguable claim of a violation of the applicant ’ s rights under Article 8 of the Convection, pointed to the remedies that had been available to him in relation to his complaints under that provision, and concluded that the complaint under Article 13 was manifestly ill-founded.

49 . The applicant referred to his arguments as to the exhaustion of domestic remedies in relation to his Article 8 complaint and added that the PPS had merely acted as a filter to spare the Constitutional Court from having to deal with matters that could be resolved without its intervention. The wrongdoer in his case remained the prison administration and he should have been able to bring it to account before the Constitutional Court directly.

50 . As has been found above, the applicant ’ s complaints under Article 8 of the Convention are inadmissible as being manifestly ill‑founded. On similar grounds, they cannot be considered “arguable” for the purposes of the complaint under Article 13 of the Convention (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131). That complaint is accordingly 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.

Done in English and notified in writing on 10 June 2021 .

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Liv Tigerstedt Gilberto Felici Deputy Registrar President