CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 août 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 20946/92                       by Sjirk VEENSTRA                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 31 August 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 12 May 1992 by Sjirk VEENSTRA against the United Kingdom and registered on 13 November 1992 under file No. 20946/92;         Having regard to:   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       4 November 1993 and the observations in reply submitted by the       applicant on 9 February 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Dutch citizen born in 1936.   At the date of introduction of the application he was serving a sentence of 10 years' imprisonment in HM Prison Saughton, Edinburgh.   He is represented before the Commission by Mrs. D. Haigh of Messrs. Shepherd and Wedderburn WS, solicitors practising in Edinburgh.   The particular circumstances of the case         Since his imprisonment, the applicant was advised by his solicitor in respect of:         1.   An appeal against sentence in respect of his original       conviction.         2.   An application to the European Commission of Human Rights       arising out of his failure to be advised in a language which he       understood of the details of the charges against him.         3.   Claim against the Secretary of State in respect of injuries       sustained as a result of an accident which took place while he       was working in the prison greenhouse.         4.   Difficulties regarding the opening of correspondence by the       prison authorities, of correspondence between the applicant and       his solicitors.         He states that throughout his detention from 1988 onwards, his correspondence with his solicitors was regularly interfered with, in that it was opened and perused by the prison authorities.         The applicant has submitted nine envelopes received from his solicitors whilst he was in prison.   They are postmarked as follows:   1.     12 March 1990 2.     11 September 1991 3.     18 September 1991 4.     Not franked 5.     20 April 1992 6.     23 September 1992 7.     2 October 1992 8.     6 October 1992 9.     12 October 1992         All but the first of these letters is marked "Legal correspondence".   The applicant states that all these letters were opened by the prison authorities, and that letters Nos. 2, 3, and 5, and three further letters of 5 December 1991, 26 May 1992 and 17 June 1992 were opened without him being present.   The parties agree that the applicant made complaints to the prison authorities about his correspondence on or around 28 April 1992, 18 May 1992, 20 August 1992 and 23 September 1992.   Relevant Domestic Law and Practice         Section 39(1) of the Prison (Scotland) Act 1989 states:         "The Secretary of State may make rules for the regulation and       management of prisons ... and for the classification, treatment,       employment, discipline and control of persons required to be       detained therein."         Rule 74(4) of the Prison (Scotland) Rules 1952 reads as follows:         "Subject to the provisions of Rule 50(4) every letter to or from       a prisoner shall be read by the Governor or by an officer deputed       by him for that purpose and it shall be within the discretion of       the Governor to stop any letter if he considers that the contents       are objectionable."         On 12 October 1992 changes to the regulations concerning legal correspondence entered into force. Standing Orders Amendment Circular 6/92 states that   prisoners` legal correspondence may only be opened if there is a reason to believe that it contains an illicit enclosure not detected by the normal means, but even such a letter should only be opened but not read and it must be opened in the prisoner`s presence.   Legal correspondence may be read in exceptional circumstance if the authorities have reasonable cause to believe that the privilege is being abused.   On 1 October 1993 an amended Rule 74 (4) of the Prison Rules came into force.   It provides that correspondence with a legal adviser may only be opened if the Governor or an officer has cause to believe that it contains a prohibited article, and the prisoner is present.   A letter may only be read in exceptional circumstances where the Governor has reasonable cause to believe that the contents of the letter endanger the security of the prison or the safety of any person, or relate to a criminal activity.         On 19 May 1993 the Court of Appeal in England allowed an appeal from a prisoner who challenged the English equivalent of Rule 74 (4) (R. v Secretary of State for the Home Department, ex parte Leech).   It held that Rule 33(3) of the (English) Prison Rules 1964 was ultra vires the rule-making power in Section 47 (1) of the Prison Act 1952 insofar as it purported to apply to correspondence between prisoners and their legal advisers.   COMPLAINTS         The applicant complains about the interference with his correspondence with his solicitor and invokes Article 8 of the Convention.         The applicant also complains of the opening of his correspondence in the context of Article 6 para. 1 of the Convention in that the correspondence concerns inter alia possible proceedings against the prison authorities.   He submits that this is prejudicial and discloses an inequality of arms as he has no access to the prison authorities' legal correspondence with their legal adviser.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 12 May 1992 and registered on 13 November 1992.         On 30 June 1993 the Commission decided to communicate the application to the respondent Government and to request them to submit written observations on admissibility and merits.         On 7 September 1993 the Commission decided to grant the applicant legal aid.         The Government submitted their observations on 4 November 1993, and the applicant submitted his observations in reply on 9 February 1994.   THE LAW         The applicant alleges violation of Articles 6 and 8 (Art. 6, 8) of the Convention by virtue of the interferences with his legal correspondence.   The Government accept that some correspondence was opened which should not have been, but point out that the prison authorities apologised at the time to the applicant for the opening of those letters.   They state that the prison authorities have no record or knowledge of any other correspondence, so they are unable to comment on it.         The applicant considers that the Commission should declare the application admissible.   He considers that the changes in the rules have been brought about only very slowly and grudgingly, and have still not been properly publicised.         The Commission is not required to decide whether the facts relating to these complaints disclose any appearance of a violation of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.         The Commission notes that in the English case of R. v. the Secretary of State for the Home Department ex parte Leech (Court of Appeal judgment of 19 May 1993) the English equivalent of the rules governing interference with prisoners' legal correspondence up to 12 October 1992 was quashed by the Court of Appeal.   In a decision of even date herewith, the Commission agreed with the Government's contention that the applicant in that case ought to have appealed against a decision of the Court of Session to the House of Lords, given that the English rules were under challenge (No. 20075/92).   The applicant's representative in the present case also represented the applicant in Application No. 20075/92.         The Commission further notes that, although the applicant complained to the prison authorities about interferences with his correspondence, he did not apply for any court review of the rules as such, nor did he challenge a specific incident of the opening or reading of correspondence by the prison authorities before the Scottish courts.   Given the English Court of Appeal's decision in the case of Leech, and the Commission's decision in Application No. 20075/92, the Commission considers that the applicant's failure to attempt any form of judicial review of the position in Scotland up to 12 October 1992 indicates that he has not exhausted the remedies available to him under Scottish law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved him , according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies, and the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)