EHRM, 16-11-2006, nr. 4902/02

The applicant was born in 1966.

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

On 13 November 2000 the applicant was arrested in the context of criminal proceedings for robbery and blackmail. His detention was subsequently authorised and extended by a court.

On 19 November 2001 a prosecutor adopted a decision to censor (cenzûruoti) the applicant's letters in accordance with Article 15 of the Detention on Remand Act. In order to justify the decision, the prosecutor referred to the danger that the applicant might attempt to influence witnesses and victims of the criminal proceedings.

On 22 April 2002 the Panevëþys City District Court convicted the applicant of robbery and blackmail. The final decision in this regard was taken by the Supreme Court on 24 December 2002.

A further decision on the censorship of the applicant's correspondence was taken by a prosecutor on 7 February 2003 on the same grounds, in the context of another criminal case concerning a fresh episode of alleged robbery and blackmail.

On 1 April 2003 the prosecutor decided to discontinue the censorship in that the investigation had been concluded.

For most of the above period the applicant was held at the Šiauliai Remand Prison — with certain interruptions due to his temporary transfers to other prisons. According to the Government, during the period from 19 November 2001 to 1 April 2003, a total number of 121 letters received or sent by the applicant were censored at the Šiauliai Remand Prison. 113 of these were received from or addressed to the applicant's wife. The remaining 8 letters were received from or addressed to:

On 1 September 2003 the Panevëþys City District Court convicted the applicant of a fresh episode of robbery and blackmail. The final decision in this respect was taken by the Supreme Court on 24 February 2004.

The applicant was again convicted of another crime by the Ðiauliai Regional Court on 14 January 2005. He currently serves his sentence at the Marijampolë Prison.

Article 15 of the Detention on Remand Act:

Rule 90 of the Remand Centres Rules as approved by the order of the Minister of Justice of 7 September 2001 provide that officers of the remand prisons are not allowed, upon their own initiative, to censor correspondence of the detainees without an appropriate decision taken under Article 15 of the Detention on Remand Act.

The Government stated that, in view of the amendments to the Code of Criminal Procedure applicable since 17 April 2002, the applicant could have applied to a court with a general complaint about any decision of a prosecutor taken in the course of the pre-trial investigation. As the applicant did not complain against the prosecutor's decisions of 19 November 2001 and 7 February 2003 to allow censorship of his correspondence, his complaints in this respect should have been rejected for non-exhaustion of domestic remedies.

The Court recalls its finding in the decision on admissibility in the present case to the extent that the censorship of the applicant's correspondence with private persons at the Šiauliai Remand Prison from 19 November 2001 to 1 April 2003 had been authorised in accordance with the applicable domestic provisions, and that hence there had been no requirement for the applicant to exhaust domestic remedies in this connection. Furthermore, the Government has not shown the existence of an effective recourse to a court during the impugned period — in theory or in practice — in relation to these complaints (see, Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000); also see, by contrast, Jankauskas v. Lithuania (dec.), no. 59304/00, 16 December 2003).

The Government's preliminary objection must therefore be rejected.

The applicant complained about the censorship of his correspondence with private persons at the Šiauliai Remand Prison from 19 November 2001 to 1 April 2003. He alleged a violation of Article 8 of the Convention, which provides as follows:

The Government argued that the censorship of the applicant's letters related only to his correspondence with private persons, the censorship being allowed by the valid decisions of a prosecutor in accordance with the applicable domestic law. The decisions had been taken in order to protect the witnesses and victims in a number of sets of criminal proceedings against the applicant, and as such the censorship had been justified by the second paragraph of Article 8 of the Convention.

The applicant disagreed with the Government's arguments, stating that the undiscriminating censorship of all his correspondence with his family and acquaintances had breached Article 8 of the Convention.

The Court finds it established that during the period from 19 November 2001 until 1 April 2003 the administration of the Šiauliai Remand Prison censored 121 letters received by or addressed to the applicant, most or that correspondence being with his wife (see paragraph 13 above). While neither the Government nor the applicant have specified a particular form of that censorship, it appears that the aforementioned letters were, at least, opened up and read in the applicant's absence, to be later put and classified in his prison file (also see the Court's judgment of 24 February 2005 in the Jankauskas v. Lithuania case cited above, § 20). There was thus an interference with the applicant's right to respect for his correspondence under Article 8 paragraph 1 of the Convention, which can only be justified if the conditions of the second paragraph of the provision are met. In particular, such interference must be ‘in accordance with the law’, pursue a legitimate aim and be necessary in a democratic society in order to achieve that aim (see the Court's judgment of 24 July 2001 in the Valašinas case cited above, ECHR 2001-VIII, § 128).

It is uncontested that the interference in the present case had a legal basis, namely the provisions of Article 15 of the Detention on Remand Act, and the Court is satisfied that it pursued the legitimate aim of ‘the prevention of disorder or crime’. As regards the necessity of the interference, it is to be noted that the censorship was carried out at the stage of pre-trial investigation in the context of two sets of criminal proceedings for robbery and blackmail. While certain forms of censorship of some letters to or from the applicant's acquaintances — especially his correspondence with previous convicts or persons of dangerous character — may have been justified in order to protect the witnesses or victims in the impugned criminal cases, censorship of other private correspondence — especially that with his wife — may have unjustly divulged certain elements of his personal or family life. The interference that occurred in the present case may have thus been justified, but required a more specific justification (cf., mutatis mutandis, Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, §§ 99–105). However, the Government have not explained why the control of the 121 letters was indispensable. Indeed, even the form of censorship as allowed by the decisions of the prosecutor of 19 November 2001 and 7 February 2003 (see paragraphs 9 and 11 above) — be it opening up, reading, stopping, withholding or another form of control — was not specified, effectively amounting to a carte blanche for the authorities to have an excessive hold on the applicant's communication with the outside world (cf., mutatis mutandis, the Jankauskas judgment cited above, §§ 21–23). The Court further recalls its case-law requiring certain qualities in such laws as are here concerned (cf., inter alia, Calogero Diana v. Italy, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1775, §§ 32–33; Domenichini v. Italy, judgment of 15 November 1996,Reports 1996-V, §§ 29–33; Petra v. Romania, judgment of 3 September 1998, Reports 1998-VII, §§ 37–40). Specifically it notes the need for the national law authorising such measures to be drafted with precision, and for regular review of censorship orders as to their nature and length. The Court notes the lack of such statutory provisions herein.

There has consequently been a violation of Article 8 of the Convention.

Article 41 of the Convention provides: