CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 juillet 1974

.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 }  THE FACTS   The facts presented by the Parties and apparently not in dispute between them may be summarised as follows:   The applicant is a citizen of the United Kingdom, a Welshman, born in Cardiff in 1933. It appears from his correspondence that he is a member of the Mudiad Amddiffyn Cymru, the so-called "Free Wales Army". He is now held in H.M. Prison, Albany, on the Isle of Wight. In the proceedings before the Commission he is now represented by B. & Co., Solicitors of London.   The applicant is serving a sentence of ten years' imprisonment imposed at the Flint Assizes on .. April 1970 for a number of serious criminal offenses involving the use of explosives. He originally complained to the Commission about his prison sentence, about interference with his correspondence and about his prison sentence, and about the fact that he was classified as a "category A" prisoner and was, as such, unable to earn parole. These complaints were declared inadmissible by a Partial Decision of the Commission on 18 December 1972. (Not published)   The applicant's complaints about his sentence and about his correspondence were held to be manifestly ill-founded, his complaint about parole was held to be incompatible with the provisions of the Convention. The Commission decided, however, to adjourn its examination of the applicant's complaint that publications and newspapers had been withheld from him on political grounds and this is the part of the application which is now outstanding.   In August 1972 the applicant wrote to the Commission alleging that certain publications and newspapers had been withheld from him on political grounds. Between January and April 1972 he stated that he had been refused "Le Peuple Breton" on .. January, "Irish Democrat" on .. February, "Herald Cymraeg" on .. February, part of the "Sunday Express" and "Tafod y Ddraig" on .. March and part of the "Sunday Express", "Irish Democrat", "Tafod y Ddraig" and "Le Peuple Breton" on .. April. He said that he had complained to the Board of Visitors who had stated that the publications were "unsuitable". He stated that all the periodicals in question "deal exclusively with politics." Submissions of the Parties   Observations of the respondent Government (dated 30 April 1973)   Under the Prison Rules and prison practice a convicted prisoner may receive personally in prison the following publications of his choice:   one daily newspaper every day; and one weekly newspaper every week (e.g. a local paper); and two periodicals on current thought, or hobbies, or the arts every week; and two religious periodicals every week; and two technical or educational periodicals every week.   He may also have books he has bought or books from friends plus books from the prison library and may read newspapers provided for the general use of prisoners. Newspapers and periodicals may be ordered by the prisoner of by his friends or relatives but publications must be received direct from the publisher or a reputable newsagent. This requirement is designed to prevent the smuggling of money, messages, drugs, etc., and to avoid the necessity for inspecting each item. Prisoners may receive newspapers or periodicals dealing with politics, or publications in a language other than English, but foreign publications must be received direct from a reputable newsagent in the United Kingdom.   The above provisions are subject to Rule 33 (1) of the Prison Rules. This enables the Home Secretary to impose restrictions with a view to securing discipline and good order in the prison or the prevention of crime. Hence a publication encouraging prisoners to use violence is likely to be withheld from them. On the other hand a publication advocating violence as part of a general system would not necessarily be withheld; for example, Marxist publications have been permitted.   If a publication is sent to a prisoner by someone who is not a relative or friend it is usually regarded as being sent for propaganda and the Governor will refer the matter to the central prison department. He will also refer to the central prison department the question whether a particular issue of a newspaper or periodical would present a serious threat to good order or discipline in the prison. There is no list of named publications which are automatically withheld.   When someone sends a newspaper cutting to a prisoner, this is dealt with as if it were a letter. Letters are normally permitted between a prisoner and his relatives and friends but communications between prisoners and persons whom he did not know before going to prison are only permitted at the discretion of the Governor.   A prisoner may complain about his treatment to the Board of Prison Visitors who are independent persons appointed by the Home Secretary. After complaining to the Board of Visitors, it is open to the prisoner to petition the Home Secretary.   A considerable amount of reading matter is addressed to prisoners. On an average weekday Albany Prison receives about one hundred and fifty newspapers, periodicals and books together with some two hundred letters. These have to be checked to ensure that they comply with prison rules and practice. From the records it has been possible to ascertain that in the period January to April 1972, 147 copies of newspapers and periodicals were received for the applicant of which ten were withheld. But due to the lapse of time it has not always been possible to identify the precise grounds on which a particular issue may have been withheld or even dates given by the applicant do not always correspond with the dates in the prison records.   Because of publicity given to the applicant, he has been sent a considerable volume of correspondence and a considerable number of publications by persons who were not known to him before he entered prison.   "Le Peuple Breton" is a monthly magazine. Two copies were withheld from the applicant on .. January and .. April 1972 because they were not delivered direct from a newsagent in the United Kingdom.   "The Irish Democrat" is also a monthly magazine, published in England. It was withheld on .. February. This issue contained a reference to the applicant and the prison referred the matter to the central prison department. The department replied that X. could receive the copy if it had been properly ordered and received direct from the publisher or a reputable newsagent and provided that he had not already received his full allowance of periodicals. In the event, this edition was not issued and it is assumed that one or both of these provisions applied.   The March issue of the "Irish Democrat" was withheld but the prison records do not indicate the reason. It was probably stopped for one or more of the reasons indicated in the prison department's reply (see previous paragraph).   It seems that the April issue of the "Irish Democrat" was issued to the applicant. It was first referred to the central prison department (as being a potential threat to good order and discipline) and the department authorised it to be issued subject to the usual conditions of origin and non-infringement of quota.   "Tafod y Ddraig" ("Tongue of the Dragon") was withheld from the applicant in January, February and March (not the dates given by the applicant who speaks of .. March, .. March and .. April). This is a monthly periodical by the Welsh Language Society. The January issue contained an article "Cofiwch y Carcharoriom" ("Remember the Prisoners"). It mentioned the applicant and urged readers to write to him. It was referred to the central department but it was decided to withhold the issue for reasons which are not now absolutely clear. It seems that it was withheld either because sent for the purposes of propaganda (see above) or because it was sent by someone previously unknown to the applicant. The same considerations seem to apply to the February and March editions. The April issue was delivered. The political opinions expressed were not a reason for withholding the issues and the fact that the applicant was mentioned was not a reason because he was mentioned in the April issue.   The "Herald Cymraeg" is a weekly paper mostly in Welsh. The issue of .. February was withheld because it was sent to the applicant, together with a letter, by someone who had not previously corresponded with him. It did not come from the publisher or a reputable newsagent.   Parts of the Sunday Express were sent to the applicant as newspaper cuttings together with letters from a person whom he had not known before entering prison. They were withheld on .. March and .. April.   The applicant appeared before the Board of Visitors at Albany Prison on .. May 1972. He complained, inter alia, about the withholding of newspapers and periodicals. It was explained to him why the publications were withheld. He did not petition the Secretary of State.   It is submitted that the restriction and control under the Prison Rules is consistent with (Article 10 of) the Convention. There is inherent in physical confinement a restriction on the ability of a person to receive and impart information - see Application No. 2749/66, de Courcy v. the United Kingdom, Yearbook, Vol. 10, p. 388. The Commission has also recognised that the State has a margin of appreciation in determining the limits that may be placed on the freedom of expression (Application No. 1167/61, Yearbook, Vol. 6, p. 204).   The practice of the United Kingdom authorities relates to the method of access to reading matter and to its volume and content. The method of access must be controlled to prevent the smuggling of messages, money or drugs. As to volume, this is a question both of checking and of good order. Prisoners must also be treated equally and rich prisoners could not be allowed to swamp themselves with unlimited quantities of periodicals. As to content, the authorities do not withhold publications on political grounds. They may be withheld only if this presents a serious threat to good order or discipline or if sent for the propaganda purposes of the sender.   In the alternative the Government suggest that the measures taken were justified under Article 10 (2) as being in the interests of public safety and for the prevention of disorder or crime. The application is therefore manifestly ill-founded or alternatively incompatible with the provisions of the Convention.   In the further alternative, it is submitted that, insofar as the applicant complains of political censorship, it was open to him to petition the Secretary of State. He has petitioned the Secretary of State about a variety of matters but never about this. This omission constitutes a failure to exhaust the remedies open to him under English law as required by Article 26 - see the de Courcy case (above) and Application No. 4471/70, Taylor v. the United Kingdom. It is always possible that the prison authorities sometimes make a mistake in applying the rules set out above. In these circumstances it is particularly apt that the applicant should complain first to the Home Secretary before submitting a petition to the Commission.   The Government, therefore, request the Commission to declare the application inadmissible as being either manifestly ill-founded, in the alternative, for non-exhaustion of domestic remedies.   Observations of the applicant - presented by B. & Co. on 22 March 1974   The applicant submits that the United Kingdom authorities have hidden their actions behind vaguely described administrative discretion. They have cited only outline general rules and quote, as authoritative, practices which they will not produce in any published form and which the applicant will show have been applied differently in his case from that of others.   Article 10   The United Kingdom Government cite a large number of rules or practices in respect of newspapers, periodicals and correspondence which derive their authority from Rule 4 of the Prison Rules and which may be further varied under Rule 33 (1) by the Secretary of State with a view to securing discipline and good order in the prison and for the prevention of crime. If applied with consistency and for the reasons given, many of these might constitute a valid application by the Government of their right under Article 10 (2) to derogate from the basic freedom to receive and impart information. But the applicant considers that the erratic and irrational application of the rules in his case makes the enjoyment of any rights under Article 10 a fragile and unpredictable mockery.   Thus in response to the applicant's original complaint concerning the seizure of ten items, the United Kingdom are able to give at this stage, reasons why five only were withheld. Of these five, two were copies of "Le Peuple Breton" and ostensibly contravened the prison practice that foreign publications must be received direct from a reputable newsagent in this country. The applicant has, however, both before and since, received copies of the same magazine from the same source, and there is no newsagent or distributor in this country. As to the "Herald Cymraeg" the applicant points out that he had until recently been receiving another weekly newspaper regularly from his parents.   The publications stopped were all political. In respect of each the applicant was informed at the time of refusal that it was "unsuitable" and in respect of the issues of the "Irish Democrat" in particular that they were "subversive". These categorisations were repeated by the Board of Visitors when the applicant complained before them.   Furthermore, the Government can now only surmise at the reasons for stopping the "Irish Democrat" and "Tafod y Ddraig". In view of the exactness of the wording of Article 10 (2) and in view of Article 18 of the Convention, this is not satisfactory.   The United Kingdom Government base one of their arguments, about inherent restrictions, on the de Courcy case but this case concerns correspondence and correspondence cannot be equated with publications. Publications are designed for a wide audience and if there is anything offensive about them they should be prosecuted or dealt with as such. No suggestion is made in the present case that the publications were offensive.   The applicant submits that the rules and practices are too restrictive under Article 10, but anyway he thinks that the detailed regulations should be put forward in some printed form.   As to the Government's comments on the number of periodicals received by the applicant during the relevant period, the applicant points out that the seemingly generous quota consisted almost entirely of subscriptions to a daily and a weekly newspaper.   Article 26 of the Convention   The applicant denies that he has failed to exhaust domestic remedies. He did petition the Board of Visitors and the Government now suggest that he should have then pursued the alternative course of petitioning the Home Secretary. He does not consider that this is a viable alternative. In fact he did petition the Home Secretary about "Le Peuple Breton" on .. September 1973. The Home Office rejected his petition on the ground that "You may receive foreign newspapers, periodicals and other publications providing they conform to the prison regulations and are sent direct from a reputable newsagent in this country". This rejection is dated .. October 1973.   The applicant also points out that it is for the respondent Government to show that a remedy exists (Pfunders case Application No. 788/60) and that such remedy should be "in principle capable of providing an effective and sufficient means of redress". (Nielsen case Yearbook, Vol. 2, p. 436). A "grace and favour" decision is not a remedy. The applicant would also suggest that in view of the capricious application of unpublished rules as to   his particular case, no satisfactory remedy can exist and that he, as a prisoner with a strong political viewpoint is permanently at risk from political censorship disguised as standard practice.   Even since his application to the Commission the applicant has been the victim of censorship - despite complaints to the Board of Visitors and to the Secretary of State. At Christmas 1973 he was sent six books of which one was stopped. This was stopped on the official ground that it was sent by someone who had not known him before he entered prison. Yet, in fact, this ground was applicable to the five others. The stopped book was "Selected Writings of James Connelly" (sent by Padraic O'Conchuir) and the real ground for stopping it was political. The applicant maintains that there was no effective remedy. On the contrary there was an administrative practice of censorship.   Article 14 of the Convention   Even if the Government were able to justify their actions under Article 10 (2) read alone, they have used the restrictions for a purpose for which they are not justified. Apart from this, other prisoners are allowed to have publications which do not conform to the rules invoked. Thus the rule about foreign publications which is applied occasionally against his "Le Peuple Breton" is never applied to the "National Geographic Magazine" also sent from abroad.   The applicant would therefore submit that the United Kingdom Government are by far exceeding any margin of appreciation allowed to them under Article 10 and are also clearly violating Article 14.   THE LAW   The applicant states that, since he has been detained in prison, he has been refused a number of magazines and periodicals. He claims that he has been the victim of political censorship. The Commission has examined this complaint in the light of Article 10 (Art. 10).   The respondent Government have submitted in their written observations that every prisoner is allowed a number of publications of his choice, provided he orders them and receives them regularly from a recognised source. He is allowed one newspaper every day, and up to seven further periodicals every week, if he uses his maximum allowance. The applicant has never denied that this allowance is properly applied. The present case does not concern the stopping of periodicals within the official allowance but the stopping of periodicals which were outside the allowance, either because they came from unauthorised sources or because they were beyond the applicant's numerical entitlement. The applicant is saying that sometimes he has been allowed periodicals above and beyond the official allowance while sometimes they have been stopped. He says that the other prisoners have been allowed periodicals from other than recognised sources while his own periodicals from unrecognised sources have often been stopped.   The Commission considers that the basic allowance is quite adequate and not ungenerous. Furthermore, it is easy to see why the rules are imposed and also reasonably easy to see why in some cases they are relaxed. Although there is a general rule against prisoners receiving magazines direct from sources outside the United Kingdom, this rule seems not to be applied to well-known English Language publications like the National Geographic Magazine. But the essence of the applicant's case is that he wishes to receive periodicals, which are generally in a language other than English, from sources that the prison authorities cannot easily check. He has never really explained why he cannot receive these periodicals from an authorised source; there must be newsagents in the United Kingdom who distribute material in Welsh and French.   What the applicant is really saying is that he does not want to use up his ordinary entitlement with regular copies of these magazines. He wants occasional copies sent to him from unrecognised sources. This naturally places a considerable strain on the prison authorities for possible messages, etc. Even assuming that X. can read Welsh and French (and his background makes this doubtful), and even assuming that he is not being "difficult", the Commission considers that he is asking for more than his entitlement under Article 10.   Article 10 (2) (Art. 10-2) of the Convention allows restrictions on the right to receive information if such restrictions are prescribed by law (see Rule 33 of the Prison Rules) and are necessary in a democratic society for the prevention of disorder or crime. The Commission considers that the restrictions in the present case fall well within this definition. They appear to be designed to prevent the passing of messages (and other material) to prisoners and to make it possible to check incoming material without putting any unnecessary burden on prison staff.   The Commission attaches no particular importance to the fact that after a considerable lapse of time the authorities cannot always account for the exact reason for the stopping of a particular item. As explained above, there is no suggestion in this case that the applicant was not allowed to have all his magazines within the normal allowance. The Commission does not consider that - having regard to the rules as set out - there is any burden of proof on the authorities to keep detailed records explaining why periodicals outside the quota were stopped.   The Commission has held in previous cases (see e.g. application no. 2749/66, Yearbook, Vol. 10, p. 388) that a numerical limitation on a prisoner's correspondence (or entitlement to reading matter) does not as such infringe the provisions of Article 8 (or Article 10) (Art. 8, 10). The finding in the present case is in conformity with this principle.   An examination of this complaint as it has been submitted including an examination made ex officio, does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article.   It follows that the remaining part of the application is manifestly ill-founded Article 27 (2) (Art. 27-2), of the Convention.   For these reasons, the Commission DECLARES THE REMAINING PART OF THIS APPLICATION INADMISSIBLE