PARTLY DISSENTING OPINION OF JUDGE SPINELLIS

1. I regret that I have found it necessary to part company with the majority of the Court on the question whether there was an interference with the applicant’s right to respect for his correspondence under Article 8 of the Convention.

2. The applicant complains that his letters from the Commission’s Secretariat were opened by the prison administration and not always in his presence [ see paragraph 79 of the judgment] .

3. The Government submitted that letters addressed to prisoners are always opened in front of them [s ee paragraph 80 of the judgment] .

4. The Court considers, rightly according to my view, that it has not been established that letters from the Commission to the applicant were opened in his absence [see paragraph 81 of the judgment] .

5. Article 51 §§ 2 and 3 of the Penitentiary Code of 1989 refers to inmates’ correspondence [see paragraph 62 of the judgment] . Paragraph 3, which provides for punishment (according to Article 252 of the Criminal Code) of prison officers who lawfully interfere with “the right to respect for [the inmates’] correspondence” and who reveal to third parties what they have learned during the exercise of this duty, is irrelevant to the issues discussed in the present case. However, in paragraph 2 it is stated that “[t]he content of telegrams or letters is not controlled. If there are reasons of security or if there is a risk that especially serious crimes will be committed or a need to establish whether such crimes have been committed, the correspondence may be controlled upon the granting of permission by the judge responsible for the execution of sentences”.

6. On the one hand, the applicant does not claim that there was an interference with his right to respect for his correspondence without the relevant permission from the judicial authorities. Moreover, the applicant had been a drug addict who, in spite of his treatment in the United Kingdom, had been in a comatose state on 24 August 1994 [s ee paragraphs 8 and 9 of the judgment] , which suggests that he was still an addict. Furthermore, the applicant had been sentenced by both the first-instance court [s ee paragraph 12 of the judgment] and the court of appeal [see paragraph 16 of the judgment] to penalties appropriate for felonies (drug-related offences) [see paragraph 8 of the judgment] . Hence, the prison authorities could reasonably have believed that the applicant might have the irresistible impulse “to smuggle drugs into the prison” in envelopes of

the Commission or the Court “forged by criminals” [see paragraph 80 of the Court’s judgment. The possibility of forging envelopes of the Commission is also mentioned by the Government of the United Kingdom in the case of Campbell v. the United Kingdom ] , and thus they acted in order to prevent crime.

7. It has been established that the letters were opened but it has not been established that the letters were opened in the applicant’s absence. This case differs from Campbell v. the United Kingdom [judgment of 25 March 1992, Series A no. 233] where the Court stated that “there is no compelling reason why such letters should be opened. The risk, adverted to by the Government, of Commission stationery being forged in order to smuggle prohibited material or messages into prison, is so negligible that it must be discounted” [ibid., p. 22, § 62, second paragraph] . As already pointed out above, the applicant in the present case has been a drug addict and it is a commonplace that untreated drug addicts will do everything in order to get their drug. Therefore, whatever interference was caused by opening the letters in the applicant’s presence – without reading them (reading would have been almost impossible anyway since very few prison officers knew sufficient English, according to the applicant’s complaint [the applicant complained about lack of communication due to this fact; see paragraphs 32 and 46 of the Court’s judgment] ) – was justified.

8. In summing up, I would like to stress that I share the view of the majority that the opening of prisoners’ letters constitutes a violation of their rights under Article 8 of the Convention, unless justified (a) by a law that is adequately accessible and foreseeable, (b) by a “pressing social need”, and (c) by being proportionate to the legitimate aim pursued by the national authorities. From all the above it follows that the opening of the letters (a) was in accordance with the national law, that is, the Penitentiary Code, Article 51 § 2 [see paragraph 62 of the Court’s judgment] , (b) was effected for “the prevention of disorder or crime” (that is, smuggling drugs into prison), and (c) was “necessary in a democratic society” in the present case, contrary to the situation in Campbell and other older cases (see, for example, Silver and Others v. the United Kingdom , judgment of 25 March 1983, Series A no. 61; Boyle and Rice v. the United Kingdom , judgment of 27 April 1998, Series A no. 131; and McCallum v. the United Kingdom, judgment of 30 August 1990, Series A no. 183). In Campbell the possibility of “Commission stationery being forged in order to smuggle prohibited material ... into prison” [ Campbell , cited above, p. 22, § 62, second paragraph] was negligible as Campbell was not an addict in an overcrowded prison but a “man of violence” [ibid., p. 8, § 8 ] . This conclusion is supported by both the facts of the present case and the case-law of this Court, which has recognised a certain but not unlimited margin of appreciation to the States Parties in the imposition of restrictions (see, in particular, Silver and Others , cited above, pp. 37-38, § 97) [see also the partly dissenting opinions of Judges Sir John Freeland and Morenilla in Campbell ] .

9. For these reasons, I find that there has been no violation of Article 8.