FOURTH SECTION

Application no. 20237/12 Marko Antero MALINEN against Finland lodged on 2 April 2012

STATEMENT OF FACTS

The applicant, Mr Marko Antero Malinen , is a Finnish national who was born in 1978 and lives in Hyvinkää . He is represented before the Court by Mr Jaakko Tuutti , a lawyer practising in Tampere.

A. The circumstances of the case

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

The applicant is in prison . On 25 November 20 1 1 a letter sent to the applicant was withheld by the prison authorities on susp icion that it contained drugs. It was sent to the police for further investigation .

On 30 December 2011 the police found that no crime had been committed as they could not f ind any traces of drugs in the letter by using the means at their disposal.

The prison still refused to give the letter or a copy of it to the applicant. He was informed that he w ould receive the letter only upon his release.

On an unspecified date t he applicant sought rectification of the prison director ’ s decision of 25 November 2011 to withhold his letter.

On 16 January 2012 the Criminal Sanctions Agency ( rikosseuraamusvirasto , brottspåföljdsverket ) refused his application finding that, according to domestic law, mail sent by or received by a prisoner could be withh e ld, inter alia , in order to prevent danger or to protect safety in prisons. Such mail was to be returned to the sender or give n to the prisoner upon release.

By letter dated 6 February 2012 the applicant appealed to the Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ) , requesting that the prison director ’ s decision be quashed. Interpretation of the domestic provisions in accordance with fundamental rights should have led to the use of alternative, less restrictive means . As no traces of drugs were found, the letter or a copy of it should have been given to the applicant.

On 13 March 2012 the Administrative Court, by a final decision, rejected the applicant ’ s appeal. It found that the withholding of the applicant ’ s letter had been necessary in order to prevent danger and crime in the prison. The letter had been sin g led out by a sniffer dog, which had led to a strong suspicion of the presence of drugs. In such a situation the domestic law did not oblige the prison authorities to give a copy of the withheld letter to a prisoner .

B. Relevant domestic law

According to Article 10 of the Constitution of Finland ( Suomen perustuslaki , Finlands grundlag , Act no. 731/1999), t he secrecy of correspondence, telephony and other confidential communications is inviolable. Provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty , may be laid down by an Act.

According to Article 7 of the Constitution, the rights of individuals deprived of their liberty shall be guaranteed by an Act. The rights of convicted prisoners and pre-trial detainees and the necessary restrictions on these rights are regulated by the Prison Sentences Act and the Detention Act.

Chapter 12, section 1, subsection 1, of the Prison Sentences Act ( vankeuslaki , fängelselagen , Act no. 767/2005) provides that a prisoner has the right of correspondence. Any seal ed letter or other mail destined for the prisoner or sent by the prisoner may be checked by X-ray or by similar methods without opening the mail, in order to examine whether it contains prohibited substances or objects referred to in Chapter 9, section 1, subsection 1 or 2, of the Act.

Chapter 12, section 5, of the Act provides that a letter, mail or message sent by or destined for a prisoner may be withheld, if the withholding is necessary for the prevention or solving of crime, prevention of disorder in the prison or for the safety of the detainee or other persons. The recipient or the sender shall be immediately informed about the withholding and the reasons for it. A letter, mail or message which has not been delivered shall be returned to the sender or given to the prisoner upon release.

COMPLAINT

The applicant complains under Article 8 of the Convention that there has been a violation of his right to respect for correspondence.

QUESTION TO THE PARTIES

Has there been an interference with the applicant ’ s right to respect for his correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? In particular, for how long was the letter withheld from the applicant?