CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.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. 21451/93                       by Harold GERRARD                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 15 April 1992 by Harold GERRARD against the United Kingdom and registered on 1 March 1993 under file No. 21451/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      5 November 1993 and the observations in reply submitted by the      applicant on 22 November 1993, 9 September 1994, 11 November 1994      and 25 April 1995;        Having deliberated;        Decides as follows:   THE FACTS   a.    Particular circumstances of the case        The applicant is a British citizen born in 1936 and currently serving a sentence of imprisonment in HM Prison Blundeston. He is represented before the Commission by Ms. Nuala Mole of the AIRE Centre, London.        The facts as submitted by the parties may be summarised as follows.        The applicant was convicted of murder and sentenced to life imprisonment in 1986.        Since the applicant arrived at HM Prison Blundeston in or about 1987, he states that his correspondence from his solicitor has been persistently opened without him being present. He lists six particular letters - 21 February 1992, 29 February 1992, 10 March 1992, 6 May 1992, 9 May 1992 and 1 December 1992. He states that a letter dated 11 February 1993 was opened in his presence but that the prison officer proceeded to read it.        By response dated 25 February 1992 to the applicant's complaint about opening of letters, the Governor acknowledged that a solicitor's letter, which was marked in accordance with prison procedure (see Relevant domestic law and practice below), had been opened in the applicant's absence contrary to the rules but that the officer concerned had personally acknowledged his oversight.        The applicant complained further about the opening of the first three letters above in a complaint form dated 10 March 1992. He stated that it had been alleged that all three had been opened in error but that he considered that opening was happening too often for it to be an accident. He was informed in reply by the Area Manager that the appropriate handling procedures were in operation.         The applicant also complained about the letter of 6 May 1992. In a reply dated 15 May 1992 the Area Manager stated that since it did not appear that the applicant was party to or defendant in civil or criminal proceedings his correspondence from his solicitor was subject to the normal opening procedures. His appeal against this received the response dated 1 June 1992 that the implications of the Campbell judgment were still under consideration by the Government but that further steps had been taken to prevent errors in the handling of mail to which Standing Order 5B 32(3) applied. The applicant's complaint concerning the opening of the letter dated 1 December 1992 met the reply that the relevant standing order was applied.        The applicant states that letters dated 12 May 1992 and 14 January 1993 from the Commission were given to him pre-opened. The applicant complained about the latter to the Prison Governor and was informed by   reply dated 20 January 1993 that correspondence from the Commission could still be opened in a prisoner's absence under the applicable standing order.        The applicant wished to challenge the prison authorities' interference with his correspondence as being in breach of the prison rules and the European Convention of Human Rights. Legal aid for the application to the courts was refused by the Legal Aid Area Office on 8 December 1992 on the ground that he had not shown that he had reasonable grounds for taking the proceedings and that it was considered that he had no reasonable prospects of success in the proceedings. The applicant's appeal to the Area Committee was rejected on 19 February 1993 on the same grounds.        On 1 January 1994, the Prison Rules with regard to the opening of correspondence with solicitors and the Commission were amended (see below).        Since that date, the applicant states that four letters to him from his solicitors dated 11 February, 2 March, 5 March and 30 March 1994 have been opened by the prison authorities despite the letters being clearly marked.        In respect of the four letters mentioned above, the Government state that the envelope of the first of the above letters was opened by the prison officer in error when it was face down and when it was turned and the Rule 37 marking noted, the contents were not taken out and an apology made orally to the applicant. The envelope for the letter of 30 March 1994 was also opened in error but the contents not removed and an apology made to the applicant. No formal complaint was received by the prison authorities in respect of any of these incidents.   b.    Relevant domestic law and practice        Position prior to 1 January 1994        Section 47(1) of the Prison Act 1952 reads as follows:   "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."        Rules 33(2) and (3) of the Prison (Amendment) Rules 1989 read as follows:        (2)    "Except as provided by statute or these Rules,a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State.        (3)     Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length."        Correspondence to a prisoner from his solicitor and from the Commission could therefore be opened by the prison authorities.        An exception was made in respect of correspondence with a solicitor regarding pending legal proceedings:        Rule 37A provided:        "A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under Rule 33(3) of these Rules."        This rule was supplemented by Standing Order 5B which provided that incoming correspondence from legal advisers which was marked "SO5B 32(3)" was not to be read or stopped and was only to be opened for examination in the presence of the inmate unless the governor has reason to suppose that the letter was not in fact within the privilege conferred by Prison Rule 37A.   Position from 1 January 1994        An amendment was made to the Prison Rules which came into force on 1 January 1994: Prison (Amendment) (No. 2) Rules 1993.        "For rule 37A there shall be substituted the following-        Correspondence with legal advisers and courts      37A.-(1) A prisoner may correspond with his legal adviser and any      court and such correspondence may only be opened, read or stopped      by the governor in accordance with the provisions of this rule.        (2) Correspondence to which this rule applies may be opened if      the governor has reasonable grounds to suspect that it contains      an illicit enclosure...        (3) Correspondence to which this rule applies may be opened, read      and stopped if the governor has reasonable cause to believe its      contents endanger prison security or the safety of others or are      otherwise of a criminal nature.        (4) A prisoner shall be given the opportunity to be present when      any correspondence to which this rule applies is opened and shall      be informed if it or any enclosure is to be read or stopped...        (6) In this rule, "court" includes the European Commission of      Human Rights, the European Court of Human Rights and the European      Court of Justice..."   COMPLAINTS        The applicant complains of the persistent opening of his correspondence from his solicitor and from the Commission. He also alleges that a number of letters have failed to reach their destination. He invokes Articles 8 and 25 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 April 1992 and registered on 1 March 1993.        On   30 June 1993, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the complaints under Article 8 of the Convention.        The Government's observations were submitted on 5 November 1993 after one extension in the time-limit and the applicant's observations in reply were   submitted on 22 November 1993.        On 8 December 1993, the Commission decided to grant legal aid to the applicant.        On 11 March 1994, the AIRE Centre, London wrote to the Commission enclosing a letter of authority from the applicant and requesting an extension in the time-limit for submitting further observations in reply to the Government. After two further extensions of time, the applicant's representatives submitted observations on 9 September 1994. Further information was submitted on behalf of the applicant on 11 November 1994.        On 11 January 1995, the Commission requested the Government to submit further written observations on the admissibility and merits of the applicant's complaints.        The Government's further observations were submitted on 10 March 1995 and the applicant's further reply was sent on 25 April 1995.   THE LAW        The applicant complains of the opening of his correspondence from his solicitor and the Commission prior to February 1993. He invokes Article 8 and 25 (Art. 8, 25) of the Convention.   i.    Article 8 (Art. 8) of the Convention        Article 8 (Art. 8) of the Convention provides as relevant:        "1.    Everyone has the right to respect for ... his      correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The respondent Government acknowledge that one letter from the applicant's solicitor was opened in breach of prison rules and accepts that other letters from the applicant's solicitor or the Commission may also have been opened pursuant to the rules in force. They point out that the rules have now changed and it is now established that letters from solicitors and the Commission should only be opened in the presence of a prisoner in specified circumstances. They submit that an apology having been made in respect of one incident, the matter should be regarded as resolved. Insofar as it is alleged that letters have been opened since the change in the applicable rules, the Government state that this happened by mistake in respect of two letters, the contents of which were not read and for which an apology was made and that the applicant did not make formal complaint in regard to any of the four alleged instances of opening.        The applicant submits that his correspondence has and continues to be subject to a persistent practice of opening and an apology cannot be considered in these circumstances as resolving the matter. It is emphasised that as a mandatory life prisoner the applicant is in a vulnerable position   and that the civil rights which he still retains have assumed an enlarged significance for him. The applicant has accordingly suffered significant distress from the opening of his privileged correspondence. It is submitted that the continuing incidents suggest that the Government do not take seriously their obligation to   protect a prisoner's privileged correspondence.         The Commission considers that the applicant's complaints raise serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits. It follows that the complaints cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.   ii.   Article 25 (Art. 25) of the Convention        The applicant has also complained that he has been hindered in the effective exercise of his right of individual petition contrary to Article 25 para. 1 (Art. 25-1) in fine which provides:        "The Commission may receive petitions addressed to the Secretary      General of the Council of Europe from any person, non-      governmental organisation or group of individuals claiming to be      the victim of a violation by one of the High Contracting Parties      of the rights set forth in this Convention, provided that the      High Contracting Party against which the complaint has been      lodged has declared that it recognises the competence of the      Commission to receive such petitions.   Those of the High      Contracting Parties who have such a declaration undertake not to      hinder in any way the effective exercise of this right.        The Commission notes that the applicant has complained of the opening of his letters from the Commission : he has not complained that his correspondence with the Commission had been delayed or tampered with in any way. The Commission finds no evidence in the present case that the applicant suffered any prejudice in regard to the presentation of his application before the Commission or that he was in any way frustrated in the exercise of his right of individual petition contrary to Article 25 para. 1 (Art. 25-1) in fine.   For these reasons the Commission, unanimously,        DECLARES ADMISSIBLE the applicant's complaints concerning      interference with his correspondence from his solicitor and the      Commission, without prejudging the merits;        DECIDES TO TAKE NO FURTHER ACTION in respect of the alleged      interference with the effective exercise of the right of      individual petition.     Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)