Information Note on the Court’s case-law 38

January 2002

A.B. v. the Netherlands - 37328/97

Judgment 29.1.2002 [Section II]

Article 8

Article 8-1

Respect for correspondence

Control of prisoner’s correspondence, in particular with his lawyer and with the European Commission of Human Rights: violation

Facts : The applicant was sentenced to a period of imprisonment in the Netherlands Antilles. His lawyer, a former inmate of the prison who had not represented him in the criminal proceedings, complained to various authorities that his letters to the applicant had been opened and withheld, despite being marked “from lawyer to client”. Correspondence between the applica nt and the European Commission of Human Rights was also opened by the prison authorities.

Law : Government’s preliminary objection – It appeared from various reports, in particular reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), that the situation in the Netherlands Antilles prisons was, and continued to be, characterised by serious structural problems. There existed a remedy before the civil courts, whereby prisoners might obtain a ruli ng as to the compatibility of administrative acts with their Convention rights and, if need be, obtain injunctions, and the applicant had not availed himself of that remedy. However, it clearly appeared that the authorities of the Netherlands Antilles had remained totally passive for more than a year in complying with court injunctions ordering them to repair rather serious structural shortcomings of an elementary hygienic and humanitarian nature in prison facilities. In the absence of convincing explanatio ns from the Government for the failure to take the necessary measures within a reasonable time to rectify the problems criticised in the reports and to comply with the court orders, there were special circumstances which dispensed the applicant from the ob ligation to exhaust the remedy referred to.

Article 8 – It was not contested that the prison authorities had interfered with the applicant’s right to respect for his correspondence. Moreover, the interferences had a legal basis.

(a) correspondence with the Commission – no reasons had been disclosed or substantiated which could justify the control of the applicant’s correspondence with a Convention organ, the confidentiality of which must be respected.

Conclusion : violation (unanimously).

(b) correspondence with lawyer – the rules at the time did not allow a prisoner to correspond with a former inmate, but while it may be necessary to control such correspondence having regard to the ordinary and reasonable requirements of imprisonment, ther e were no grounds justifying a blanket prohibition.

Conclusion : violation (unanimously).

(c) other correspondence – the applicant’s allegations were wholly unsubstantiated and while under the rules in force at the time his correspondencen would have been s ubject to control, in the absence of concrete evidence the facts did not disclose a violation.

Conclusion : no violation (unanimously).

(d) limited facilities for letter-writing and telephoning – the rules in force at the time allowed detainees to send two or three letters per week and to receive letters at all times, and the costs of writing materials and postage were borne by the prison authorities. In these circumstances, the possibilities for the applicant to maintain contact by letter with persons outsi de prison were not arbitrarily or unreasonably restricted. As to telephone facilities, Article 8 cannot be interpreted as guaranteeing prisoners the right to make telephone calls, in particular where the facilities for contact by way of correspondence are available and adequate. Where telephone facilities are provided, they be made subject to legitimate restrictions.

Conclusion : no violation (unanimously).

Article 13 – In view of the finding in respect of the Government’s preliminary objection, and in particular the lack of adequate implementation by the authorities of court orders to repair the shortcomings in prisons, as well as the failure to implement th e recommendations of the CPT, the applicant did not have an effective remedy in respect of his Convention complaints.

Conclusion : violation (unanimously).

Article 41 – The Court awarded the applicant € 3,500 in respect of non-pecuniary damage.

© Council o f Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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