22686/93

 AS TO THE ADMISSIBILITY OF Application No. 22686/93 by Walter STÜRM against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 30 November 1994, the following members being present: MM. H. DANELIUS, President S. TRECHSEL G. JÖRUNDSSON J.-C. SOYER H.G. SCHERMERS Mrs. G.H. THUNE MM. F. MARTINEZ L. LOUCAIDES J.-C. GEUS M.A. NOWICKI I. CABRAL BARRETO J. MUCHA D. SVÁBY Mr. K. ROGGE, 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 24 August 1993 by Walter Stürm against Switzerland and registered on 28 September 1993 under file No. 22686/93; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; 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 17 June 1994 and the observations in reply submitted by the applicant on 12 July 1994; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the parties, may be summarised as follows: The applicant, a Swiss citizen born in 1942, is currently detained at Brig prison in Switzerland. Criminal proceedings were instituted against the applicant on account of theft and robbery. Since 1990 he has been detained on remand in various prisons in Switzerland. In separate criminal proceedings the Criminal Court (Strafgericht) of the Canton of Jura sentenced him to 12 years' imprisonment on 30 November 1992. The present application concerns the applicant's correspondence while in detention. The application does not directly relate to Applications Nos. 20231/92, 20545/92, 23117/93 and 23223/93, currently pending before the Commission. I. In 1992 the applicant went on a hunger strike whereupon he was temporarily detained in a security cell at a Geneva hospital. A radio reporter of Radio DRS, the national radio station for German and Romansch Switzerland (Radio der deutschen und der rätoromanischen Schweiz) sent a letter to him with twelve questions and a cassette for a tape-recorder. The reporter explained that he had been refused permission to interview the applicant personally for which reason he requested him to reply to the questions on tape; the answers would be used for a radio interview. On 29 July 1992 P., the investigating judge of the Ering/Gundis Districts at Sion/Sitten in the Canton of Valais decided to withhold the cassette, while forwarding the letter and the questions. The applicant replied to the questions in a letter to the radio reporter which the investigating judge passed on. The applicant further filed a complaint with the Cantonal Court of the Canton of Valais that he had not received the cassette. II. On 24 July 1992 the applicant sent a letter to the editor of the Zurich weekly newspaper W. in which he stated, with reference to the investigating judge, that "if the nilper (sic) in Sitten considers that with these mean tricks he can get me to give in, he is out of his mind, but that he is in any case" ("wenn der Nilper in Sitten denkt, er könne mich durch derartige Schikanen klein kriegen, dann ist der falsch gewickelt, aber das ist er ja auf jeden Fall"). The letter also stated inter alia that P. had "pinched" ("geklaut") the annex of another letter. On 31 July 1992 the investigating judge informed the applicant that he would not forward the letter on account of the indecent and defamatory statements therein. The applicant appealed against this decision to the Cantonal Court of the Canton of Valais. III. On 27 July 1992 the applicant wrote to Ms. S. of Amnesty International, complaining inter alia of the conditions of detention on remand. The letter stated inter alia that "for me, persons like the investigating judge P. are therefore nothing else than desk murderers who only differ from an Adolf Eichmann in the number of their victims" ("Für mich sind deshalb Leute wie der Untersuchungsrichter P. nichts anderes als Schreibtischmörder, die sich von einem Adolf Eichmann nur durch die Anzahl der Opfer unterscheiden"). The letter continued that "my stay in this torture hole only lasted a few weeks which nevertheless sufficed to understand that the pig was not M. which wrongly incriminated me" ("dauerte mein Aufenthalt in diesem Folterloch nur einige Wochen, die aber genügten, um zu begreifen, dass das Schwein nicht der mich fälschlicherweise belastende M. war"). The applicant further wrote that he had complained about the decision of the investigating judge who, rather than forwarding a letter of the applicant, had put it in the waste paper basket. The investigating judge withheld this letter on 31 July 1992 as it contained indecent and defamatory remarks. IV. On 2 October 1992 the Cantonal Court dismissed the applicant's appeals against the various decisions of the investigating judge; fined him 80 SFr for filing an abusive appeal; and ordered him to pay costs of the proceedings and the decision amounting to 74.60 SFr. The Court found inter alia that the investigating judge had correctly withheld the radio cassette in order to maintain order in prison and not to jeopardise the purpose of detention. The applicant had always been keen on publicity. Moreover, there was a danger that the radio station would manipulate the cassette in such a way as to give a one-sided view of the case. V. The applicant filed a public law appeal (staatsrechtliche Beschwerde) against this decision which the Federal Court (Bundesge- richt) dismissed on 24 February 1993. Insofar as the applicant complained that the Valais authorities had breached his right to correspondence and to freedom of expression the Court found that the decisions of the investigating judge not to forward the letters interfered with his right under Article 8 of the Convention to freedom of correspondence, and the decision to hold back the cassette interfered with his right under Article 10 of the Convention. The Court noted that these interferences had been based on Section 73 para. 1 of the Regulations on Prison Establishments of the Canton of Valais (Reglement über die Strafanstalten des Kantons Wallis) according to which correspondence between a prisoner on remand and the outside world had to be submitted to the control of the investigating judge; in the Court's opinion there was therefore a sufficient legal basis for the interferences. Under Article 8 para. 2 of the Convention the Court then distinguished the contents of the various letters. In respect of the letter to Ms. S. (see above III.) the Court found that the words "desk murderer" and "differ from an Adolf Eichmann in the number of their victims" constituted a grossly defamatory statement (massiv ehrverletzende Äusserung). The Court considered that if such a letter was not withheld, this would soon become known in the prison, and other prisoners would be induced to write similar letters; tensions would arise between prisoners and prison staff and the order in prison would be jeopardised. The right to correspondence of a prisoner on remand was limited by the personal honour of the civil servant dealing with the criminal case. The Court considered that it would have been preferable if the investigating judge had either blackened the words or given the letter back to the applicant to change the statements. However, in such matters the authorities enjoyed a margin of appreciation and the investigating judge had not proceeded in a disproportionate manner. The Federal Court then dealt with the applicant's letter to the W. newspaper (see above II.). In the Court's view, it was unclear what the word "nilper" meant, and the letter could not be held back for this reason. Similarly, if it was stated that the investigating judge had "pinched" his letter, it could be assumed that the applicant was in fact complaining that the letter had disappeared and not that the investigating judge had committed theft. As a result, this letter contained no grossly defamatory remarks, and in this respect the Federal Court upheld the applicant's public law appeal. The Court also dealt with the radio reporter's cassette (see above I.). It noted that the applicant had been able to reply to the questions put to him by the radio reporter in a letter, for which reason the interference at issue was only minor (geringfügig); on the other hand, the interference was not inconsiderable (nicht unbedeutend) as the applicant had at that time been in a security cell in hospital and had himself stated that it would have been easier for him to reply orally to the questions. Moreover, it was not clear why only oral statements and not also letters could lead to a one-sided view of the case, as stated by the Cantonal Court. Finally, it could be expected from Radio DRS that it would present its transmissions on the applicant in an objective manner. As a result, the Court considered that it had not been necessary in a democratic society within the meaning of Article 10 para. 2 of the Convention to hold back the cassette, and in this respect the Court also upheld the applicant's public law appeal. Finally, the Court quashed the fine and the costs imposed on the applicant by the Cantonal Court. COMPLAINTS The applicant complains under Articles 8 and 10 of the Convention that the authorities did not forward a letter which he had written to Ms. S. He alleges that the letter was personal. He submits that the investigating judge should solely have examined the letter as to a danger of collusion or of fleeing; in case of defamatory remarks he was free to introduce a defamatory action against the applicant. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 24 August 1993 and registered on 28 September 1993. On 7 April 1994 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits in respect of the complaint under Article 8 of the Convention. The Government's observations were submitted on 17 June 1994, the applicant's observations in reply on 12 July 1994. THE LAW The applicant complains under Article 8 (Art. 8) and also under Article 10 (Art. 10) of the Convention that the Swiss authorities did not forward a letter which he addressed to Ms. S. of Amnesty International. Article 8 (Art. 8) of the Convention provides, insofar 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 Government submit that any interference with the applicant's right to respect for his correspondence under Article 8 para. 1 (Art. 8-1) would be justified under Article 8 para. 2 (Art. 8-2). Thus, the legal basis for the decision not to forward the letter was Section 73 para. 1 of the Regulations on Prison Establishments of the Canton of Valais. Moreover, retaining the letter served to prevent the commission of the criminal offence of defamation. Had the applicant been permitted to send letters with a defamatory content, other prisoners would do the same and tensions with prison staff would arise. The Government further recall that the letter was addressed to a person working for Amnesty International, and that the applicant is well-known in Switzerland. Finally, there was no general prohibition to forward such letters; indeed, in its decision of 24 February 1993 the Federal Court found that only one of three letters written by the applicant should have been withheld. The applicant contends that the investigating judge, when deciding on 31 July 1992 not to forward the letter, did not mention any legal basis, for which reason it cannot be said that the legal basis was Section 73 para. 1 of the Regulations on Prison Establishments of the Canton of Valais. He furthermore points out that in the letter at issue he always wrote that "for me" P. was a pig and a desk murderer, thus expressing his own opinion. The applicant also submits that it was unnecessary to retain the letter, as he was held in solitary confinement and had therefore no contact with other prisoners; thus, forwarding the letter could not have endangered prison order. He also points out that persons working for Amnesty International do not become active in their home country. The Commission finds that these complaints raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The case cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established. For these reasons, the Commission by a majority DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the Acting President of the Second Chamber Second Chamber (K. ROGGE) (H. DANELIUS)