MALINEN v. FINLAND
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr Marko Antero Malinen, is a Finnish national who was born in 1978 and lives in Hyvinkää. He was represented before the Court by Mr Jaakko Tuutti, a lawyer practising in Tampere. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is in prison. On 25 November 2011 a letter sent to the applicant was withheld by the prison authorities on the basis of Chapter 12, section 5, of the Prison Sentences Act on suspicion that it contained drugs. The letter was sent to the police for further investigation. The applicant was informed about the withholding of the letter on the same day. According to the established prison practice, the withheld letter was either given to the applicant to read or it was read to him. 5. On 30 December 2011 the police found that no crime had been committed as they could find only a very small amount of possible traces of drugs in the letter using the means at their disposal. For this reason, as well as for expediency and cost-effectiveness, the police decided not to forward the letter to a forensic laboratory for further testing but returned it to the prison. 6. The prison decided to withhold the letter still as it had not been examined properly. The applicant was informed that he would receive the letter only upon his release. 7. On an unspecified date the applicant sought rectification of the prison director’s decision of 25 November 2011 to withhold his letter. 8. On 16 January 2012 the Criminal Sanctions Agency (rikosseuraamusvirasto, brottspåföljdsverket) refused his application finding that, according to domestic law, mail sent or received by a prisoner could be withheld, inter alia, in order to prevent danger or to protect safety in prisons. Such mail was to be returned to the sender or given to the prisoner upon release. 9. By letter dated 6 February 2012 the applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the prison director’s decision be quashed. Interpretation of the domestic provisions in accordance with fundamental rights should have led to the use of alternative, less restrictive means. As no traces of drugs had been found, the letter or a copy of it should have been given to the applicant. 10. On 13 March 2012 the Administrative Court, by a final decision, rejected the applicant’s appeal. It found that the withholding of the applicant’s letter had been necessary in order to prevent danger and crime in the prison. The letter had been singled out by a sniffer dog, which had led to a strong suspicion of the presence of drugs. In such a situation the domestic law did not oblige the prison authorities to give a copy of the withheld letter to a prisoner. 11. On 4 November 2013 a copy of the letter was given to the applicant. 12. According to Article 10 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999), the secrecy of correspondence, telephony and other confidential communications is inviolable. Provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty, may be laid down by an Act. 13. According to Article 7 of the Constitution, the rights of individuals deprived of their liberty shall be guaranteed by an Act. The rights of convicted prisoners and pre-trial detainees and the necessary restrictions on these rights are regulated by the Prison Sentences Act and the Detention Act. 14. Chapter 12, section 1, subsection 1, of the Prison Sentences Act (vankeuslaki, fängelselagen, Act no. 767/2005) provides that a prisoner has the right of correspondence. Any sealed letter or other mail destined for the prisoner or sent by the prisoner may be checked by X-ray or by similar methods without opening the mail, in order to examine whether it contains prohibited substances or objects referred to in Chapter 9, section 1, subsection 1 or 2, of the Act. 15. Chapter 12, section 5, of the Act provides that a letter, mail or message sent by or destined for a prisoner may be withheld, if the withholding is necessary for the prevention or solving of crime, prevention of disorder in the prison or for the safety of the detainee or other persons. The recipient or the sender shall be immediately informed about the withholding and the reasons for it. A letter, mail or message which has not been delivered shall be returned to the sender or given to the prisoner upon release.