CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1989

.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. 12395/86 by Peter CHESTER against the United Kingdom             The European Commission of Human Rights sitting in private on 10 July 1989, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 10 March 1986 by Peter CHESTER against the United Kingdom and registered on 19 September 1986 under file No. 12395/86;           Having regard to:        -   the reports provided for in Rule 40 of the Rules of         Procedure of the Commission;        -   the Commission's decision of 3 May 1988 to bring the         application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government         on 18 July 1988 and the observations in reply submitted         by the applicant on 20 February 1989;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a citizen of the United Kingdom, born in 1954 and detained in H.M. Prison Wakefield, where he is serving a sentence of life imprisonment.           This is the applicant's second application to the Commission. His first, No. 9488/81, concerning the censorship of prisoners' correspondence, was the subject of a decision by the Committee of Ministers that the applicant had suffered a violation of Article 8 of the Convention (Resolution DH (86) 6).           The facts of the present case as submitted by the parties may be summarised as follows:   1.       On 6 March 1986, whilst the applicant was detained at H.M. Prison Parkhurst he was involved in certain disturbances and placed in the punishment block of the prison.   He complained to the prison Governor and allegedly wrote a letter about the incident to a gentleman at the Home Office, but that letter was never received by the addressee.   However, there is no prison record of this letter's existence.   2.       The applicant was allowed to write the following week to his Member of Parliament, Lord Avebury, but a letter dated 9 March 1986 to Mr.   D. Speakman was stopped, because it contained complaints which had not been put to the prison Governor or Home Office.   He was given an opportunity to rewrite the letter (presumably omitting the offending passages).           The Government stated before the Commission that, for the protection of prison staff, prisoners were generally required to air any complaints about prison treatment or staff misconduct through internal channels before or at the same time as they complained externally.   (The simultaneous ventilation restriction did not apply to correspondence with solicitors at the material time and has since been abolished altogether.)   The prescribed procedures were set out in Standing Order 5B, which is published and available to inmates. Standing Order 5B 34(j) prohibited correspondence containing certain types of complaint:           "Complaints about prison treatment which the inmate has not         yet raised through the prescribed procedures unless the         complaints are about a matter already decided at region         headquarters or the complaints are about a matter which         does not require investigation or on which no corrective         or remedial action is possible, such as complaints of a         general nature about conditions, e.g. about overcrowding         or poor facilities, which are basically descriptive of         the conditions the inmate is experiencing and his feelings         about them.   As soon as a complaint about prison treatment         has been made through the prescribed procedures it may be         mentioned in correspondence.   The prescribed procedures are:           i.    with respect to an adjudication, by petition to the         Secretary of State;           ii.   with respect to an allegation of misconduct or         impropriety by a member of staff, in writing to the         Governor, or by petition to the Secretary of State;         iii. in relation to any other matter, by petition to the         Secretary of State or by application to the Board of         Visitors or by application to a visiting officer of the         Secretary of State.           Statements about prison treatment are not treated as         complaints when they are matters of fact e.g. that an inmate         has suffered injury, or that he has been punished for an         offence against prison discipline, or that he is in the         process of making a complaint through the proper channels."           Records at Parkhurst Prison show that this letter to Mr. Speakman was stopped because it contained allegations of incompetence on the part of senior management at that prison.   His letter to Mr. Speakman was posted two days later on 11 March 1986 as soon as the applicant petitioned the Secretary of State in accordance with Standing Order 5B 34j(ii).   The applicant claimed that his letter contained factual statements and not allegations of staff misconduct.   3.       The applicant was then transferred to H.M. Prison Frankland in April 1986.   There restrictions were placed on the number of letters he could write, whereas he had corresponded without such a restriction at Parkhurst.   He complained to the Home Office about the disparity in prison censorship practices.   The Secretary of State refused to take any action regarding this complaint (petition reply dated 22 July 1986).           A prisoner's entitlement to letters is set out in paragraph 7 of Standing Order 5B and is applicable to all prisons in England and Wales:           "(1)   All convicted prisoners are entitled under Prison Rule         34 to one statutory letter a week on which postage is paid         at public expense....           (3)    .... inmates may send, in addition to the statutory         letter at public expense, at least one letter a week on         which postage is paid from earnings.   The Governor should         allow additional letters paid from earnings so far as is         practicable, taking into account the need to examine and         read correspondence and the staff resources available.         Inmates are generally allowed to receive as many letters         as they are allowed to send."           The number of letters allowed varies according to the establishment, and is at the discretion of the prison Governor.   Over 12 million incoming and outgoing letters are handled by the prison authorities of England and Wales annually.   At Frankland Prison a prisoner's allowance is normally three per week, over and above the weekly statutory letter at public expense, although more may be permitted in exceptional cases.   During the period covered by this application, namely from 7 March 1986 until 1 October 1987, the applicant wrote over 600 letters which were sent out, an average of just over 8 per week.   Some weeks he sent out over 30 letters.   4.       On 22 July 1986 a letter of complaint to the applicant's solicitor was stopped for failing to put the complaint before the Governor, even though the applicant claimed to have done so.   He petitioned the Home Office about the stopping of the letter.   The Secretary of State rejected the complaint on 15 December 1986 on the grounds that the letter had been correctly stopped under Rule 37 (A) of the Prison Rules 1964.   On 3 July 1987 the Government informed the Commission that this letter had in fact been stopped in error and an apology had now been made to the applicant.   5.       The applicant alleged that Circular Instruction 63/66 unjustifiably limits prisoners' purchase and use of cards, e.g. only 24 cards may be sent or handed out at Christmas.   The use of circular instructions denies prisoners necessary information as to censorship practices.           The Government responded as follows to this allegation:           "The number of Christmas cards prisoners may send is set out         in Standing Order 5B 13, which provides that:           'At Christmas a convicted inmate will be allowed to send an         additional letter to be paid for from his prison earnings;         and the Governor has discretion to allow more....         In addition up to 12 cards with stamps may be bought from         the prison canteen out of prison earnings or private cash.'           In recognition of the special needs of long-term prisoners as         many as 24 cards may be sent by inmates in certain prisons,         including Frankland.           The restriction on the number of cards which may be sent is         necessary to avoid placing too great a burden on the censor's         offices.   Inmates are only allowed to send cards bought in         the prison canteen - which may include charity cards - to         avoid the necessity of searching each one.           The applicant was allowed to send Christmas cards in         accordance with the aforementioned guidelines."   6.       The applicant alleged that the prison authorities would not allow him to petition the Home Secretary about his correspondence complaints at one stage (around October 1986).           The Government responded that without further information about the allegation it was not possible to investigate it, but, in principle, the "one petition at a time" rule laid down in Standing Order 5C does not apply to petitions about correspondence.   The relevant part of this Order provides as follows:           "9.   Generally an inmate who has petitioned and not received         a reply should not be allowed to petition on any other matter         unless a month has elapsed since the previous petition was         submitted or the Governor considers that an exception should         be made or except as in Order 5C 10 as below.           10.   An inmate sould be allowed to petition about the         following matters whether or not he is awaiting a reply         to a previous petition on any subject:           ...           (d) interference with his correspondence."         Despite this guideline the applicant was refused a correspondence petition to the Home Secretary in March 1987 (see para. 12 below).   7.       The applicant alleged that a letter to a fellow inmate at Frankland Prison had been returned to him although it had been passed by the prison censor.   The censorship was upheld by the Secretary of State (petition reply 17 December 1986).           The Government responded that on the basis of this information it is not possible to ascertain the letter in question.   However whilst the applicant was removed from association from other inmates at his own request, pursuant to Rule 43 of the Prison Rules 1964, as amended, correspondence with a fellow inmate, Mr.   Clarke, was prohibited.           Standing Order 5B 26 deals with correspondence between prisoners:           "Correspondence with another convicted inmate requires the         approval of both governors, except where the inmates are         close relatives as described in Standing Order 5B 28 below         or where they were co-defendants at their trial and the         correspondence relates to their conviction or sentence.         Subject to the provisions of Orders 5B 24-30 approval         should be given unless there is reason to believe that such         correspondence will seriously impede the rehabilitation         of either, or where it would be desirable, in the interests         of security or good order and discipline, that the inmates         should be separated from each other, or prevented from         communicating with each other."           In exercise of the discretion conferred by this guideline, the Governor of Frankland took the view that correspondence between Mr. Clarke and the applicant was not conducive to the good order and discipline of the establishment whilst the latter was removed from association.   For this reason, after an exchange of letters between the two prisoners about a forthcoming adjudication, the Governor decided that correspondence between them should be stopped until the applicant returned to normal location.           The applicant denied that he was removed from association at his own request or that he and Mr.   Clarke had corresponded about an adjudication.   8.       On the morning of 4 December 1986 the applicant was not allowed to receive a visit because he refused to wear ill-fitting shoes.   He claimed to have been assaulted by prison officers, following his noisy protest about the wasted visit, when he was placed in a special cell ("the strong box") and stripped of his clothes.   He stated that he was refused writing paper to write to his solicitor until he was returned to his normal cell the same evening.   He further alleges that the prison doctor failed to examine him fully and that the next day he was refused a petition of complaint to the Secretary of State.   After an investigation of the alleged assault, the prison authorities considered that reasonable force had been used in the circumstances.   9.       The applicant claimed that the ventilation in his prison block at H.M. Prison Frankland was inadequate and caused him headaches.   10.      The applicant alleged that a letter to the Commission was stopped on 1 December 1986.           The Government stated that the letter was not stopped but merely delayed because the applicant had not written in the correct format and the letter had been wrongly addressed:   On 1 December 1986 he was refused a form to write to the Commission on the grounds that his complaint had not been dealt with through domestic procedures, but the Assistant Governor checked the Circular Instruction and then issued a form some 30 minutes later.   On checking the petition the Assistant Governor noticed that the applicant had addressed it wrongly and had used both sides of the sheet of paper.   Circular Instruction 34/81 instructs Governors to ensure that petitions to the Commission be written on white line A4 size paper using one side only.   Bearing the Circular Instruction in mind the applicant was asked by the Assistant Governor to rewrite it.   This he did and it was posted on 5 December 1986.           After petitioning the Home Secretary about this incident, the applicant was advised that the Secretary of State had found that "no unwarranted interference or delay" in his petition to the "European Court of Human Rights" had occurred (petition reply dated 17 February 1987).   11.      The applicant objected to the stamp placed on his outgoing correspondence by the prison authorities reminding correspondents to provide their name and address when writing to prisoners.   The applicant found the practice offensive because it implied that his correspondents were writing to him anonymously.           The Government responded that, for the protection of the public and the prevention of further crime, inmates are not allowed to write to certain types of correspondent.   The most important of these are:           i.    minors, where their parents have requested the stopping         of correspondence with the inmate concerned;           ii.   other convicted inmates, where the Governor considers         this would seriously impede the rehabilitation of either or         that correspondence would not be in the interests of good         order and discipline;           iii. anyone who has previously served a custodial sentence if         the Governor believes it would impede the rehabilitation of         either; and           iv.   persons or organisations whom the Governor believes         present a genuine and serious threat to the security or         good order of that or any other Prison Department         establishment.           In order to enforce these restrictions it is necessary for correspondents to state their name and address.   It is the practice at Frankland Prison, in cases where an inmate has received an anonymous letter, to stamp any outgoing letters thought to be going to the same correspondent with a reminder to give his/her name and address next time.   This is what happened in the present incident.           The applicant denied that anyone wrote to him anonymously. 12.      The applicant was then transferred to H.M. Prison Long Lartin. There certain of his letters were temporarily stopped: a letter dated 12 March 1987 to the Clerk of Public Petitions, House of Commons, and two letters dated 16 March 1987 addressed respectively to Miss T. Bailey and the Reverend B. Greenaway.   The applicant was not allowed to petition the Home Secretary immediately about this censorship.           According to the Government these letters were stopped pursuant to paragraph 7 of Standing Order 5B (para. 3 above).   At Long Lartin Prison this Standing Order concerning letter quotas is enforced by issuing prisoners with standard prison letter forms. Where a letter is not written on such official paper, it must be submitted for posting with a postal authority slip so that the number of letters sent can be recorded.   These slips are available from the prison censor's office.   The three letters were stopped because they were not accompanied by such slips, which the applicant subsequently obtained, and the letters were sent in their original form.           The Government also informed the Commission that the applicant had not been refused a petition to the Home Secretary.   However the applicant submitted with his application an acknowledgement of this fact in a letter dated 26 May 1987 from the Earl of Caithness, Minister of State, Home Office, to the Rt Hon.   Tony Benn, the applicant's Member of Parliament, who had raised the matter with the Home Secretary.   In that letter the Minister stated as follows:           "Mr.   Chester was indeed refused the issue of a petition         in March and I am sorry to say that the decision to         do so was a mistake.   The situation arose from an         administrative misunderstanding which was subsequently         rectified.           Apart from this one incident Mr.   Chester's correspondence         is not being unlawfully stopped or interfered with in         any way, indeed he was allowed an increase in his normal         entitlement of letters in order to assist his settling         in at Long Lartin."   13.      The applicant was then transferred to H.M. Prison Wakefield. From there a letter (on or about 8 September 1987) to Mrs.   S. Rutkowski and a letter dated 1 October 1987 to the Rt.   Hon.   Tony Benn, MP, were stopped because he had exceeded his letter allowance, contrary to paragraph 7 of Standing Order 5B.   He had already written four outgoing letters during each of the weeks in question.   COMPLAINTS           The applicant complains of an unjustified interference with his correspondence, contrary to his right to respect for correspondence ensured by Article 8 of the Convention.   He also invokes Articles 10, 17 and 18 of the Convention.   He relies on previous submissions to the Commission in his application No. 9488/81, and alleges that the United Kingdom Government have misled the Commission with regard to purportedly uniform censorship practices, and have failed to take effective action to ensure a relaxation of those practices and a genuine reform.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 10 March 1986 and registered on 19 September 1986.           On 13 May 1987, after making a preliminary examination of the case, the Rapporteur requested the Government, pursuant to Rule 40 para. 2 (a) of the Commission's Rules of Procedure, to provide information regarding the censorship practices and incidents described by the applicant.   Information was provided by the Government on 3 July 1987, to which the applicant replied on 3 August 1987.           On 3 May 1988 the Commission examined the admissibility of the application.   It decided to give notice of the case to the respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of Procedure, and to invite the parties to submit their observations on the admissibility and merits of the application.   The Government submitted their observations on 18 July 1988.   The applicant was invited to submit his before 16 September 1988.   This time limit was suspended pending the applicant's legal aid application to the Commission and the instruction of solicitors.   The solicitors appointed by the applicant informed the Commission on 5 January 1989 that the applicant had withdrawn his instructions.   The applicant was then invited to submit his observations before 17 March 1989.   They were submitted on 20 February 1989.   THE LAW   1.       The applicant has complained of an unjustified interference with his right to respect for correspondence ensured by Article 8 (Art. 8) of the Convention, the relevant part of which provides as follows:           "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 .... for the prevention of disorder or crime ...."           The applicant has also invoked Articles 10, 17 and 18 (Art. 10, 17, 18) of the Convention with respect to his censorship complaint.   However the Commission does not find these provisions of the Convention pertinent to the facts of the application.           The applicant contends that the interference with his correspondence was neither in accordance with the law nor necessary in a democratic society for the prevention of disorder or crime, within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   The Government   concede an interference with the applicant's right to respect for correspondence in certain instances, such as the stopping or delaying of certain letters in excess of the applicant's weekly letter allowance, but contend that the interference was in accordance with   the law and necessary for the prevention of disorder or crime.   Insofar as errors were committed by the prison administration, as with the mistaken censorship of the applicant's letter of 22 July 1986 to his solicitor, the Government have offered an apology and conclude that the applicant can no longer claim to be a victim of a violation of the Convention.   2.       The Commission finds that there has been no interference with the applicant's right to respect for correspondence ensured by Article 8 para. 1 (Art. 8-1) of the Convention in respect of his unsubstantiated claim that a letter dated 6 March 1986 was stopped, a temporary inability to petition the Secretary of State about a correspondence complaint in March 1987 and the stamping of his outgoing correspondence with a reminder to addressees to put their names and addresses clearly on their incoming letters.   It concludes that these aspects of the case are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       However, the Commission also finds that there has been an interference with the applicant's Article 8 (Art. 8) right as follows:   -        insofar as his letters dated 9 March 1986 to Mr.   Speakman and dated 22 July 1986 to his solicitor were respectively delayed and stopped for failing to observe the simultaneous ventilation rule (the Commission considers that the applicant may still claim to be a victim of a violation of Article 8 (Art. 8) in respect of the second letter to his solicitor, despite the apology he received from the Government a year later);   -        insofar as three of the applicant's letters were delayed and two stopped for exceeding the weekly letter quota (delayed letters dated 12 March 1987 to the Clerk of Public Petitions, 16 March 1987 to Mrs.   T. Bailey, 16 March 1987 to the Rev.   B. Greenaway, and stopped letters dated 8 September 1987 to Mrs.   S. Rutkowski and 1 October 1987 to the Rt.   Hon.   Tony Benn, MP);   -        generally insofar as a weekly letter quota and a Christmas card quota were imposed on the applicant; and   -        insofar as there was a complete ban on the applicant's correspondence with a fellow inmate during the applicant's placement in the segregation unit at H.M. Prison Frankland.           However, the question whether that interference was in accordance with the law and justified, as being necessary in a democratic society for the prevention of disorder or crime, within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, is one which raises complex issues of law and fact warranting an examination on the   merits.   4.       Finally, the applicant has complained of a short delay in the sending of a letter dated 1 December 1986 to the Commission.   The Commission has examined this complaint in the context of the effective exercise of the right of individual petition ensured by Article 25 para. 1 (Art. 25-1) of the Convention.   However, the Commission finds that the delay in question did not hinder the applicant's access to the Commission and that, therefore, there has been no interference with the effective exercise of his right of petition.           For these reasons, the Commission           DECLARES ADMISSIBLE, without prejudging the merits of the         case, the applicant's complaints concerning the simultaneous         ventilation rule, mail quotas and correspondence with a         fellow prisoner;           DECLARES INADMISSIBLE the remainder of the application;           DECIDES to take no action in respect of the alleged         interference with the effective exercise of the right         of individual petition.     Secretary to the Commission              President of the Commission            (H.C. KRÜGER)                            (C.A. NØRGAARD)