CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 novembre 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. 13590/88                         by Thomas CAMPBELL                         against the United Kingdom           The European Commission of Human Rights sitting in private on 8 November 1989, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 Mr.   C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   Mr.   J. RAYMOND, Deputy 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 14 January 1986 by Thomas CAMPBELL against the United Kingdom and registered on 5 February 1988 under file No. 13590/88;           Having regard to:        -   the reports provided for in Rule 40 of the Rules of Procedure         of the Commission;        -   the written observations submitted by the Government on         1 December 1988;     - ii -   13590/88          -   the applicant's observations in reply submitted on 7 March         1989;        -   the supplementary observations submitted by the Government         on 23 May 1989;        -   the parties' observations submitted at the hearing on         8 November 1989.           Having deliberated;           Decides as follows:   THE FACTS   A.       Particular circumstances of the case           The applicant is a British citizen born in 1952 and resident in Glasgow.   He is currently serving a sentence of life imprisonment. The applicant is represented by Mr.   John Carroll, a solicitor practising in Glasgow.   The facts as submitted by the parties may be summarised as follows.           The applicant is serving a term of life imprisonment for murder and began serving his sentence in Peterhead Prison.   He was transferred to the hospital wing of Barlinnie Prison, Glasgow as a result of his refusal of prison food in protest against, inter alia, the prison authorities' refusal to allow him confidential correspondence and ready access to his solicitor.           Since his imprisonment the applicant has been advised by his solicitors, in respect of:       1.   an action for damages for injuries sustained on 3 November 1985;       2.   a claim against the Secretary of State for damages in respect         of injuries sustained on 25 April 1987;       3.   a claim against the Secretary of State in respect of         infestation of lice while in the hospital wing of Peterhead         Prison in November 1985;       4.   a possible prosecution by the police (arising out of an         incident in Barlinnie Prison on 25 April 1987);       5.   a denial of communication with the solicitor following the         said incident on 25 April 1987;       6.   the Prison Department's denial of the applicant's right to         free and unrestricted correspondence between himself and his         legal advisers on all of the above matters;       7.   an application (Application No. 12323/86) to the European         Commission of Human Rights concerning inter alia his solitary         confinement and access to his solicitor while in custody in         hospital;       8.   the present application.           The applicant states that throughout his detention, from 1985 onwards, his correspondence with his solicitors and the Commission has regularly been interfered with, in being opened, perused and censored by the prison authorities.           On 16 September 1985, the applicant's solicitor wrote to the Governor, HM Prison Peterhead, asking that all correspondence between him and his client should pass without interference.   After the Deputy Governor of Peterhead had discussed the matter with the applicant, he wrote on 23 September 1985 to the applicant's solicitor indicating that outgoing mail from the applicant to his solicitor concerning his petition to the Commission, if properly marked, would not be opened.           In a further letter dated 4 October 1985 the solicitors wrote to the Governor of Peterhead Prison again asking for Standing Order M to be waived regarding all solicitors' correspondence.   On 15 October 1985 the Governor replied that incoming mail from the solicitor concerning an application to the Commission, suitably identified, would be opened in the presence of the prisoner and handed to him unread.   The Governor explained that this arrangement would not apply to solicitors' correspondence about matters other than the application to the Commission.           On 24 October 1985 the applicant's solicitor wrote to the Scottish Home and Health Department again requesting that all the correspondence between him and his client should pass unopened.           On 29 October 1985 the applicant petitioned the Secretary of State complaining about censorship of his mail with his solicitor.   In their reply to this and other petitions on 19 June 1986 the Scottish Home and Health Department advised the applicant that his solicitor had been told on 15 October 1985 that correspondence "in respect of ECHR procedures" should be clearly marked to ensure privacy but that any other correspondence between an inmate and his legal adviser was subject to normal rules.           On 16 June 1986 the Scottish Home and Health Department wrote to the applicant's solicitors confirming the arrangements for solicitors' correspondence concerning matters before the Commission but reaffirming that other correspondence was still subject to normal rules.           In his petition dated 19 June 1986 the applicant again complained that incoming mail from his solicitor was scrutinised.   He repeated these complaints in his petition dated 27 June 1986.   In these petitions, the applicant also drew the attention of the authorities to the fact that correspondence from the European Commission of Human Rights was being opened.   The reply to these petitions received by the applicant on 15 July 1986 referred the applicant to the existing arrangements.   In his petition of 30 December 1986 he complained that a letter from a firm of solicitors was opened before he received it.           The Scottish Home and Health Department stated in a letter dated 16 June 1987 to the applicant's solicitor that all correspondence will continue to be opened except that concerning a complaint to the European Commission of Human Rights.   However, despite this statement correspondence to and from the Commission has been opened.   The applicant refers to letters dated 20 June 1985, 17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986, 22 May 1986, 7 January 1987, 4 June 1987, 18 August 1987 and 3 November 1987 from the Commission which show the prison censor's mark on the top right hand corner.   The Government accept that five of these letters (17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986 and 18 August 1987) were opened.   It considers that three other letters (20 June 1985, 22 May 1986 and 7 January 1987) may have been opened but that it is not possible to identify the markings.   Of two remaining letters (2 and 7 October 1987) which the applicant alleges were opened the Government state that there are no identificable marks and no opinion is expressed as to whether they have been opened or not.         A letter sent by the applicant to his Member of Parliament dated 25 August 1987 also received the same scrutiny.           The applicant's solicitors applied for legal aid to bring civil proceedings in respect of the interference with the applicant's correspondence.   Legal aid was refused on 7 October 1986 by the Supreme Court Legal Aid Committee on the ground that the applicant had no probable cause of action.   The Committee also noted that the applicant was not being denied visits from his legal advisers and that he has not indicated that he was unable to give instructions verbally to his advisers.   The applicant's appeal against this decision was refused on 5 December 1986 by the Legal Aid Central Committee of the Law Society of Scotland.   B.       Relevant domestic law and practice   a)       In general           The system of prisons in Scotland is governed by the Prisons (Scotland) Act 1952 (c.61), section 35(1) of which provides that:           "the Secretary of State may make rules for the regulation         and management of prisons and for the classification,         treatment, employment, discipline and control of persons         required to be detained therein."           In exercise of his powers under section 35 the Secretary of State has made the Prison (Scotland) Rules 1952 (S.I. 1952/565) ("the Rules").   To supplement these statutory provisions the Secretary of State issues advice and instructions to the Governors of prisons by way of administrative orders, collectively known as the Prison (Scotland) Standing Orders, and administrative circulars.   b)       Correspondence with legal advisers           Communications between prisoners and their legal advisers and others are governed principally by Rule 74 of the Rules.   Rule 74(4) provides that every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose.   The only exceptions to this general rule are letters of request or complaint to the Secretary of State or the Visiting Committee which may not be opened by the Governor if they are sealed by the prisoner.           In the case of remand prisoners, Rule 124(2) provides that they shall be allowed to write to their legal advisers.   Under Rule 124(3) any confidential written communications prepared by such a prisoner as instructions for his legal adviser may be delivered to the legal adviser without being examined by any officer of the prison unless the Governor has reason to suppose that it contains matters not relating to such instructions.   Under Rule 127 this facility is also available to convicted prisoners who are the subject of further charges. Similar provisions apply under Rule 132(2) to an appellant in connection with his appeal.   It does not appear that any of these provisions applied to the applicant at the relevant time.           These rules are supplemented by Standing Order M, which deals in detail with communications between prisoners and others.   Copies of this Standing Order are available to prisoners and the public. Standing Order Mal(a) sets out the purpose of examination of the correspondence, namely to prevent its use to plan escapes or disturbances or otherwise jeopardise the security of the establishment and to satisfy other reasonable requirements of prison administration. Under Standing Order Mal(d), when correspondence is examined or read this is to be done as quickly as possible.           For the purposes of examination and censorship, Standing Order Ma6 divides correspondence, both incoming and outgoing, into five groups.   Most correspondence with legal advisers falls into category (e), that is, general correspondence.   Under Standing Order Ma7 such correspondence must not contain any of the material specified in that Standing Order.           Following the friendly settlement in the case of McComb v. the United Kingdom (Comm.   Report, 15.5.86, to be published in D.R.) the Secretary of State initiated new procedures dealing with correspondence between a prisoner and legal adviser in respect of legal proceedings.   These new procedures came into force on 21 March 1988.   They are set out in a new Standing Order Ma8:           "Correspondence with a legal adviser about legal proceedings         to which an inmate is already a party or about a forthcoming         adjudication, may not be read or stopped unless the Governor         has reason to suppose it contains other material.   Such a         letter may be examined for illicit enclosures, but should         only be opened for that purpose in the presence of the         inmate by whom it is sent or to whom it is addressed.           Other correspondence with a legal adviser may be read and may         not contain anything specified in Standing Order Ma7(a)-(i)         and (k) to (n).   Such correspondence may not be stopped on         the grounds that it contains material prohibited by Standing         Order Ma7(j) unless it is clear that the inmate is not         seeking legal advice but is writing for some other purpose."   c)       Correspondence concerning proceedings under the European         Convention on Human Rights           In addition to general provisions relating to correspondence, Standing Order M contains specific provisions relating to correspondence with the European Commission or Court of Human Rights or with a legal adviser in connection with a petition to the Commission or pending proceedings before the Commission or the Court. Under Standing Order Ma10 such correspondence may not contain material prohibited under Standing Order Ma7(a) to (c) or (e), which concern escape plans, material which would tend to assist or encourage the commission of offences, material which could jeopardise national security and obscure or coded messages.           Further general provisions relating to the Convention are to be found in Standing Order Mf.   In particular Standing Order Mf7 expressly provides that correspondence between an inmate and his legal adviser about a petition to the Commission or proceedings resulting therefrom should not be read unless the Governor has reason to suppose that the correspondence contains other matters.           The Government state that in practice, as regards correspondence between prisoners and the Commission, outgoing letters if sealed will normally go unopened.   Incoming letters from the Commission are opened; the contents are examined to confirm that they are what they purport to be but they are not read; they are thereafter issued promptly to the prisoner.     COMPLAINTS           The applicant complains of interference with his correspondence with his solicitor and invokes Articles 8 and 10 of the Convention. The applicant submits that as his prison of classification, Peterhead, is over 200 miles from his solicitor in Glasgow, it is impossible always to receive advice or consult in person at interview and that accordingly much information passes, and consultation takes place, by correspondence between the applicant and his solicitor.   As several of the matters which the solicitor is dealing with concern allegations against prison officers, the applicant submits that it is totally unacceptable for his correspondence to be examined by prison officers.           The applicant also submits that he is under pressure by the actions of the prison authorities to restrict his contact with his solicitor to such occasions when the solicitor is able to take the journey to visit the applicant in prison.   While the applicant does have the option of continuing to correspond with his solicitor and the Commission, he must do so in the knowledge that the information and advice contained in these letters will be read and noted by the prison authorities.           The applicant also complains of the opening of a letter to his Member of Parliament.           Finally, the applicant complains of a violation of Article 6 para. 1 of the Convention in that he has been refused legal aid to challenge in the civil courts the actions of the prison authorities in respect of his correspondence.   He has no income or capital to meet the costs of such proceedings personally.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 14 January 1986 and registered on 5 February 1988.   On 13 July 1988, the Commission decided to invite the respondent Government to submit observations on the admissibility and merits of the applicant's complaints.   The Government submitted their observations on 1 December 1988 and the applicant replied on 7 March 1989.   Further information was submitted by the applicant on 12 May 1989 and by the Government on 23 May 1989.           On 17 March 1989, the Commission decided to grant legal aid to the applicant.           On 7 September 1989, the Commission decided to invite the parties to submit oral observations on the admissibility and merits of the application.   At the hearing, held on 8 November 1989, the parties were represented as follows:   the respondent Government by Mr.   Wood, Agent, Mr.   MacKay, QC, Mrs.   MacDonald (Scottish Office) and Mr.   Reeves (Scottish Home and Health Department), Advisers; the applicant, by Miss Clark, Solicitor.   THE LAW   1.       The applicant has complained of being refused legal aid to take proceedings in the civil courts to challenge the actions of the prison authorities in interfering with his correspondence.   He invokes Article 6 para. 1 (Art. 6-1) of the Convention which provides, in its first sentence:           "In the determination of his civil rights and obligations         or of any criminal charge against him, everyone is entitled         to a fair and public hearing within a reasonable time by an         independent and impartial tribunal established by law."           The Commission recalls that while the decision of the European Court of Human Rights in the Airey case (Eur.   Court H.R., Airey judgment of 9 October 1979, Series A no. 32) held that Article 6 para. 1 (Art. 6-1) guarantees to litigants an effective right of access to the courts for the determination of their "civil rights and obligations", the Court also made it clear that there was no obligation on the State to provide free legal aid for every dispute relating to a "civil right". Further, the case-law of the Commission holds that where an applicant is refused legal aid on the basis that his claim lacks reasonable prospects of success, this would not constitute a denial of access to court unless it could be shown that the decision to refuse legal aid was arbitrary (see e.g.   No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).           The Commission recalls that in the present case the applicant's application for legal aid was refused on the basis that he had no probable cause of action and it finds no indication of arbitrariness in this decision.   The Commission concludes therefore that this complaint does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has complained of the opening of a letter sent by him to his Member of Parliament.   The Commission has examined this complaint under Article 8 (Art. 8) of the Convention which provides:           "1.   Everyone has the right to respect for his private         and family life, his home and 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 Commission refers to the case-law of the Convention organs to the effect that the supervision of prisoners' correspondence, while an interference with their right to respect for correspondence, is in general justified under the provisions of Article 8 para. 2 (Art. 8-2) (Eur. Court H.R., Silver and Others judgment of 25 March 1983, Series A no. 61, p. 38, para. 98; Silver and Others v. the United Kingdom, Comm.   Report of 11.10.80, para. 424) as necessary in a democratic society for the prevention of disorder and crime.           The Commission recalls that the letter in question was not stopped or delayed in any way and in these circumstances finds no indication of a violation of Article 8 (Art. 8) of the Convention.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant has next complained of the opening of his correspondence with his solicitor.   He has also brought it to the attention of the Commission that correspondence from the Commission was opened by the prison authorities.   He invoked Article 8 (Art. 8) and Article 10 (Art. 10) of the Convention in relation to the alleged interference with his correspondence.   The Commission recalls, however, that where interference is alleged in the communication of information by correspondence Article 8 (Art. 8) is the lex specialis and no separate issue arises under Article 10 (Art. 10) of the Convention (cf. aforementioned Silver judgment p. 9, paras. 106-107).   The Commission will therefore examine the applicant's complaints under Article 8 (Art. 8) of the Convention.           The respondent Government have contended that the applicant has not exhausted domestic remedies in respect of his complaints of interference with his correspondence.   The Commission recalls however that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf.   Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26;   Commission's decision on admissibility of Application No. 9013/80, Dec. 11.12.82, D.R. 30, p. 96, para. 102).   The Commission notes that the respondent Government make no reference to any particular remedy beyond the possibility of petitioning the Secretary of State.   The Commission recalls however that the applicant and his solicitor raised the problem of the opening of the applicant's correspondence with his solicitor on numerous occasions with the authorities and the applicant made complaint of the opening of his correspondence with the Commission in his petitions of 19 and 27 June 1986.   In this respect the Commission finds that the applicant has complied with Article 26 (Art. 26) of the Convention.           The respondent Government have also submitted that the applicant has failed to comply with the six months time-limit imposed by Article 26 (Art. 26) of the Convention in respect of his complaints of the opening of correspondence from the Commission.   The Commission notes however that the applicant brought the matter to the attention of the Commission in various letters, e.g. his letters of 26 November 1986, 28 November 1986, 25 October 1987, 3 November 1987 and December 1987. The first of these letters are within six months of the Secretary of State's reply dated 15 July 1986 to the applicant's petition of 19 and 27 June 1986.           Consequently, the Commission finds that in this respect the applicant has complied with Article 26 (Art. 26) of the Convention.           The Commission has examined the parties' observations concerning the applicant's complaints about his correspondence with his solicitor and the Commission under Article 8 (Art. 8) of the Convention. It considers that these complaints raise difficult issues of fact and law which are of such complexity that their determination should depend on a full examination of the merits.   These complaints cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, but must be declared admissible, no grounds for declaring them inadmissible having been established.           The Commission has also examined the complaints of the opening of the applicant's correspondence with the Commission under Article 25 para. 1 (Art. 25-1) which provides:           "The Commission may receive petitions addressed to the         Secretary-General of the Council of Europe from any person,         non-governmental organisation or group of individuals claiming         to be the victim of a violation by one of the High Contracting         Parties of the rights set forth in this Convention, provided         that the High Contracting Party against which the complaint         has been lodged has declared that it recognises the competence         of the Commission to receive such petitions.   Those of the         High Contracting Parties who have made such a declaration         undertake not to hinder in any way the effective exercise of         this right."           The Commission considers that these complaints justify a further investigation also under Article 25 para. 1 (Art. 25-1) in fine of the Convention.           For these reasons, the Commission           DECLARES INADMISSIBLE the applicant's complaints         concerning refusal of legal aid and his complaint concerning         the opening of a letter to a Member of Parliament;           DECLARES ADMISSIBLE, without prejudging the merits, the         applicant's remaining complaints concerning interference with         his correspondence (Article 8 of the Convention);           DECIDES TO EXAMINE FURTHER whether the opening of the         applicant's correspondence with the Commission was compatible         with Article 25 para. 1 of the Convention.         Deputy Secretary to the Commission         President of the Commission                    (J. RAYMOND)                          (C.A. NØRGAARD)