13 May 2011

FOURTH SECTION

Application no. 10410/10 by Jarno Kalevi HELANDER against Finland lodged on 19 February 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Jarno Kalevi Helander, is a Finnish national who was born in 1972 and lives in Konnunsuo . He is represented before the Court by Mr Ari Nieminen, 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.

In February 2008 the applicant was placed in pre-trial detention in Pyhäselkä prison. On 2 February 2008 his lawyer sent him an e-mail to the prison mail box concerning another pending court case. The prison director withheld the message and did not submit it to the applicant.

On 5 February 2008 the applicant asked the Joensuu District Court ( käräjäoikeus, tingsrätten ) to order the prison director to submit the message to him and accused him of a crime committed in office.

On 13 February 2008 the prison director reported the matter to the police, asking them to investigate whether he had committed a crime in office. In this context he submitted the message destined for the applicant to the police.

By letter dated 23 February 2008 the applicant asked the District Court to apply an interim measure whereby the prison director be ordered, under threat of payment of a penalty, to submit the message to the applicant.

On 25 February 2008 the police completed the pre-trial investigation and sent the matter to the public prosecutor for consideration of possible charges.

On 7 March 2008 the District Court rejected the request for an interim measure. The court found that the conditions for granting an interim measure were not fulfilled.

By letter dated 13 March 2008 the applicant appealed the decision of 7 March 2008 to the Itä-Suomi Court of Appeal ( hovioikeus, hovrätten ) .

On 15 April 2008 the Court of Appeal upheld the D istrict Court ’ s decision.

On 20 April 2008 the applicant requested the public prosecutor to order the police to conduct an additional investigation into the matter to see whether the prison director had violated the confidentiality of the message by reading it and by submitting it to the police. The applicant accepted the fact that the prison director had printed the message on paper but claimed that from that moment onwards it had to be considered as a letter, the confidentiality of which was protected by the Constitution. As the message had been included in the pre-trial investigation report, it had become public. The applicant ’ s counsel had already, for years, sent e-mails destined for his clients imprisoned in different prisons in Finland and had never before encountered any problems in this respect.

By letter dated 9 May 2008 the public prosecutor informed the applicant that he was not going to press charges against the prison director. Moreover, he was not going to order any additional investigation into the matter.

On 13 May 2008 the applicant himself asked the police to investigate the additional issue which the public prosecutor had not agreed to do.

On 4 June 2008 the police completed the additional investigation and sent the matter to the public prosecutor for consideration of possible charges.

By letter dated 12 June 2008 the public prosecutor informed the applicant that the additional investigation would not lead to any action on his part.

On 14 October 2008 the Joensuu District Court dismissed the charges against the prison director and rejected the applicant ’ s request that the message be submitted to him. It found that everybody had a right to contact the authorities via e-mail if the technical or economic considerations allowed it. This right only applied to official matters and not to private issues, such as the matter in question in the present case. Therefore, the prison director had had no obligation to pass on the message nor the applicant any right to receive it.

By letter dated 13 November 2008 the applicant appealed to the Itä ‑ Suomi Court of Appeal. The applicant pointed out that all correspondence destined for a detainee, whether a letter or an e-mail, arrived in the prison mail box and was scrutinised and passed on by the prison authorities. There was no reason to treat a printed e-mail differently from a letter. In fact, the former were safer as nothing extra could be submitted to a detainee. The prison authorities could not rely on lack of technical or human resources as a ground to prevent lawyer-client contacts. The prison director had not shown any valid technical reason which would have prevented him from passing on the message to the applicant, since he had been able to pass it on to the police.

On 7 April 2009 the Itä-Suomi Court of Appeal upheld the District Court ’ s judgment.

By letter dated 3 June 2009 the applicant appealed further to the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds of appeal already presented before the Court of Appeal. He also pointed out that the law provided no restrictions as concerned the form in which correspondence to a detainee had to be conveyed. If the prison authorities received a message destined for a detainee, they had an obligation to pass it on to him or her.

On 21 August 2009 the Supreme Court refused the applicant leave to appeal.

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. P rovisions 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.

Chapter 8 of the Detention Act ( tutkintavankeuslaki, h äktningslagen, Act no. 768/2005) provides detailed rules on the detainee ’ s right to correspondence. A detainee has a right to correspondence unless that right has been limited by the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen ).

According to Chapter 8, section 4 , of the Detention Act (as modified by Act no. 266/2007) , a letter or other mail addressed to a detainee sent by his counsel may be opened and its content checked without reading the message in it only in the presence of the detainee, if there is reason to suspect that the letter contains an object or a substance capable of harming persons or destroying property.

Chapter 8, section 5 , of the Act provides that a letter, mail or m e ssage destined f o r a detainee may be withh e ld, if passing it on would endanger the purpose of the pre-trial detention or i f 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.

COMPLAINTS

The applicant complains under Article 6 § 3(b) and (c) of the Convention that he could not prepare his defence or defend himself through legal assistance as the lawyer-client correspondence was hindered by the prison authorities. He complains that the right to respect for his correspondence under Article 8 of the Convention was violated by the fact that his lawyer ’ s e-mail message was not delivered to him and that it became public by the fact that it had been submitted to the police and included in the pre-trial investigation report. Finally, he claims that this fact also violated his right to receive messages under Article 10 of the Convention.

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?