CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1992

.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. 19085/91                       by P.K., M.K. and B.K.                       against the United Kingdom         The European Commission of Human Rights sitting in private on 9 December 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. M. de SALVIA, 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 15 October 1991 by P.K., M.K. and B.K. against the United Kingdom and registered on 15 November 1991 under file No. 19085/91;         Having regard to   -      the report provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on 9 July       1992 and the observations in reply submitted by the applicant on       7 October 1992;         Having deliberated;         Decides as follows: THE FACTS         The first applicant is an Irish citizen born in 1955 and is currently serving a prison sentence in Full Sutton Prison, England.         The second applicant is the mother of the first applicant.   She is 73 years old.   She is an Irish citizen and resides in Belfast.         The third applicant is the sister of the first applicant.   She is an Irish citizen born in 1958 and resides in Belfast.         The applicants are represented by Mr. Peter Madden, a solicitor practising in Belfast.         The facts as submitted by the parties may be summarised as follows.         The first applicant was arrested in 1984 in England.   He was charged with murder, causing explosions and possession of explosives and firearms.   He was tried in England and convicted and sentenced on 6 and 7 March 1985 when he was given a sentence of life imprisonment with a recommended minimum period of 35 years.         The first applicant has been classified as a Category A (exceptional risk) prisoner.         The first applicant has requested that he serve his sentence of imprisonment in a prison in Northern Ireland in order to be near to his family and friends who all reside in Northern Ireland.   The first applicant was born in Belfast, Northern Ireland and resided there all his life.   All family members reside in Northern Ireland.   He has no relatives in England.   His requests for transfer have been refused by the Home Office by replies dated 9 August 1985, 19 May 1986, 15 September 1989, 31 October 1989, 29 August 1990 and 29 January 1991.         By reply dated 9 August 1985, the applicant was advised that :         "the Secretary of State has amongst other things to be satisfied       that the prisoner will conform fully to a normal regime on       transfer and specifically that he has severed all links with any       paramilitary organisation".         By reply dated 31 October 1989, the applicant was informed that         "The Secretary of State is still not satisfied that, if       transferred, you will not disrupt or attempt to disrupt any       prison establishment in Northern Ireland or otherwise pose an       unacceptable risk to security".         In a reply dated 11 October 1991, the Home Office stated that:         "the consideration of reports on your behaviour here was only one       factor... having regard to the possibility of you disrupting or       attempting to disrupt any prison establishment in Northern       Ireland or otherwise posing an unacceptable risk to security.         In view of your continued concern about the decision made on your       earlier request, further consideration has been given to the       possibility of your being transferred to Northern Ireland either       permanently or temporarily.   After consultation with the       Northern Ireland authorities it has been determined that if       transferred permanently you would expect to receive a substantial       reduction in your time to serve.   In view of the seriousness of       your offence it has therefore been decided that it would be       inappropriate for you to be permanently transferred.   In the view       of the Northern Ireland authorities, there also remain objections       to such a transfer on the basis of security concerns and your       presenting a continuing risk of disruption to their       establishments.   I also have to advise you that for security       reasons, the Home Secretary is not prepared to authorise your       temporary transfer at this time."         The first applicant's father died in 1988. He was unable to see his son since the time of his arrest due to ill-health and inability to travel long distances.   If the first applicant had been transferred to a prison in Northern Ireland his father could have visited him regularly before his death.   The first applicant was refused compassionate parole for his father's funeral.         The first applicant married Martina Anderson in May 1989.   She is also serving a life sentence of imprisonment in England and has also requested a transfer to a prison in Northern Ireland where the distance between prisons would not be as great and they could possibly be held at the same prison. Her request has been refused by the Home Office.         The second applicant suffers from ischaemic heart disease, angina, hypertension, chronic bronchitis and asthma.   She is short of breath on exertion and therefore finds any form of travel difficult, and any attempt to visit her son in prison is very trying for her.   Any form of travel, particularly the long and arduous journey from Northern Ireland imposes a huge stress and burden upon her, and indeed, upon the whole family.   Due to her medical condition she is presently unable to travel during winter and will therefore be unable to visit her son until Easter next.   She is entitled to thirteen paid visits to England because she qualifies for financial state assistance.   She receives some assistance from the Department of Health and Social Services of Northern Ireland.   She can only avail herself of approximately 3-4 visits per year, however, due to her ill health.         The third applicant is married with a young family.   She is not entitled to state assistance and therefore must pay her own travel, accommodation, and subsistence expenses. When she travels she must seek accommodation.   She lives in Belfast and has lived in Belfast all her life. She is included in the list of approved visitors though has not visited since 1989.         Another reason why some members of the first applicant's family are unable to visit at all including his brothers and sisters is that some live in mixed Protestant/Catholic areas and they could not risk the Royal Ulster Constabulary calling at their home to approve the visit.   The procedure is that each visitor must be approved by the British Home Office and each visitor must complete an application form which is submitted to the British Home Office with personal photographs.   The British Home Office then contact the Royal Ulster Constabulary to call to the proposed visitor's home to make enquiries as to why he or she wishes to visit the person in prison.   The second applicant submits that invariably the Royal Ulster Constabulary treat proposed visitors with hostility.         The second applicant receives a phone call from her son approximately once every six weeks and the first applicant can telephone his wife approximately once a month.   The first applicant and his wife see each other once every five to six months and since they married in May 1989 they have had seven visits together.         Since being sentenced in March 1985 the first applicant has been held in five different prisons ranging in distance from the Isle of Wight on the south coast of England to prisons in the far north of England.         The first applicant also submits that the conditions of detention for Irish Republican prisoners in England are considerably worse than those for their counterparts in Northern Ireland.   Unlike the position in Northern Ireland, the applicant and other Irish Republican prisoners are completely segregated from each other unless one or two prisoners are in the same establishment due to the fact that there are no other prisons available.   Irish Republican prisoners are generally held in solitary confinement, in isolation, and dispersed throughout as many available prison establishments as are in existence throughout England. There is a policy of regular transfer from prison to prison, resulting in the prisoners being unable to settle into familiar surroundings, which has an adverse effect on health for prisoners serving lengthy prison sentences.     RELEVANT DOMESTIC LAW AND PRACTICE   a) Visit entitlement         The Prison Rules 1964 (S.I. 1964/388), made by statutory instrument under the Prison Act 1952, Sections 47 and 52, contain, inter alia, the following provisions:         "31.(1) Special attention shall be paid to the maintenance of       such relations between a prisoner and his family as are desirable       in the best interests of both.         (2) A prisoner shall be encouraged and assisted to establish and       maintain such relations with persons and agencies outside prison       as may, in the opinion of the governor, best promote the       interests of his family and his own social rehabilitation."         "34(1) An unconvicted prisoner may ... receive as many visits as       he wishes within such limits and subject to such conditions as       the Secretary of State may direct, either generally or in a       particular case.           (2) A convicted prisoner shall be entitled -            ...(b) To receive a visit once in four weeks ..."         From April 1992, the normal visit entitlement was increased to two visits in every period of four weeks.         Accumulated Visits:              "Subject to the provisions of Orders 5A 12-18 ... convicted            inmates may be allowed to accumulate visits up to a maximum            of 12 and apply ... to be temporarily transferred to any            local prison to take their visits.   Category A inmates ...            must petition for temporary transfer ... An inmate must            have accumulated at least 3 visits before he can be            transferred to take accumulated visits."   b) Temporary transfer         The Criminal Justice Act 1961 and Standing Order 5A provide that a prisoner may apply for temporary transfer to another prison to receive visits.   These may be from a close relative or relatives who may also be in custody.   "Close relative" is defined so as to include "brother".   The material provision is Section 27(1) of the Criminal Justice Act 1961 which provides that:         "The responsible minister may, on the application of a       person serving a sentence of imprisonment or detention in       any part of the United Kingdom, make an order for his       temporary transfer to another part of the United Kingdom...       and for his removal to an appropriate institution there."     c) Permanent transfer         Section 26 of the Criminal Justice Act 1961 provides inter alia:         "(1)   The responsible Minister may, on the application of       a person serving a sentence of imprisonment or detention in       any part of the United Kingdom, make an order for his       transfer to another part of the United Kingdom, there to       serve the remainder of his sentence, and for his removal to       an appropriate institution [there]...         (4)   Subject to the following provisions of this section, a       person transferred under this section to any part of the United       Kingdom there to serve his sentence or the remainder of his       sentence shall be treated for purposes of detention, release,       supervision, recall and otherwise as if that sentence (and any       other sentence to which he may be subject) had been an equivalent       sentence passed by a court in the place to which he is       transferred."         In a written decision relating to a request by a prisoner for permanent transfer from the United Kingdom to Northern Ireland the Secretary of State indicated the criteria he would apply in exercising his discretion to transfer prisoners.   That decision reads, in part, as follows:         "Revised criteria governing the transfer of prisoners to       another jurisdiction in the United Kingdom were announced,       in reply to a Parliamentary question on 23 June 1989.       These provide that an inmate's request to be transferred       will, normally, be granted provided that all the following       conditions are met:         (i)   the inmate would have at least six months left to       serve in the receiving jurisdiction before his or her date       of release;         (ii)   the inmate was ordinarily resident in the receiving       jurisdiction prior to the current sentence or his or her       close family currently reside there and there are       reasonable grounds for believing that it is the inmate's       firm intention to take up residence there on release;   and         (iii) both departments concerned are reasonably satisfied       that the inmate will not, if transferred, disrupt or       attempt to disrupt any prison establishment or otherwise       pose an unacceptable risk to security.         It was also stated, however, that even if these criteria       were met, transfer may be refused if it is considered that       the inmate's crimes were so serious as to render him or her       undeserving of any degree of public sympathy or to make it       inappropriate that the inmate should benefit from a       substantial reduction in the time left to serve if that       would be a consequence of transfer.         Similarly, transfers may be refused if there are reasonable       grounds for believing that the inmate's primary intention       in making the application is to secure a reduction in the       time left to serve.   On the other hand, an application that       does not meet these conditions may, nevertheless, be       granted where there are strong compassionate or other       compelling grounds for transfer."   d) Differences in release policies and procedures         The law and practice relating to the proportion of a sentence which must be served before release differs between the United Kingdom jurisdictions.   Prisoners serving determinate sentences in England and Wales are entitled to one-third remission of their sentence.   Prisoners in Northern Ireland are generally entitled to remission of one half of their sentence.   There are also differences in the administration of life sentences so that those serving sentences for comparable offences are generally released earlier in Northern Ireland than they would be if they were sentenced in England and Wales.   e) Categorisation of prisoners         Category A prisoners are defined as those whose escape would be highly dangerous to the public, or to the police, or to the security of the state, no matter how unlikely that escape might be.   Category A prisoners are further classified as presenting either a standard, high, or an exceptional escape risk.   Prisoners assessed as Category A (exceptional risk) are located in Special Security Units within prisons.   In deciding on a prisoner's categorisation, account is taken of the nature and circumstances of the offence, details of any previous convictions, where appropriate, the prisoner's mental state, and reports from police, prison and other sources.   The need to continue to hold a confirmed Category A inmate in the highest security category is reviewed at least once every 12 months on the basis of up to date reports.         Category A prisoners are subject to certain restrictions.   Their movements within the prison are escorted and are closely monitored and recorded.   Their visitors have to be approved and their photographs verified by the police under special arrangements known as the Approved Visitors Scheme.   They are subject to frequent cell changes.   They are not permitted to work in the prison kitchen.   In addition, prisoners in Special Security Units do not have access to prison workshops.     COMPLAINTS         The applicants complain that the refusal of a transfer, temporary or permanent, is in violation of their right to respect for their private and family life as guaranteed by Article 8 of the Convention. They submit that alternative prison accommodation is available in Northern Ireland and that there is no valid reason for refusing the transfer.   The denial of transfer is deliberately and unnecessarily punitive.         The applicants also complain that they are discriminated against on the grounds of political or other opinion, national origin and association with a national minority, contrary to Article 14 of the Convention.   In particular, they submit that Irish Republican prisoners are discriminated against as a class in that they are treated less favourably than other prisoners in relation to questions of transfer.         The applicants further submit that they have no effective remedy as required by Article 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 15 October 1991 and registered on 15 November 1991.         On 2 April 1992, the Commission (First Chamber) decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 9 July 1992 and the applicant's observations in reply were   submitted on 7 October 1992.   THE LAW   1.     The Government submit that the applicants have failed to exhaust domestic remedies since they have not instituted proceedings for judicial review of the refusal to transfer.   The applicants have replied that such proceedings would be doomed to failure in light of domestic case-law "In the matter of an application for judicial review by Paul Peter Baker" of the High Court in Northern Ireland and the Divisional Court in McAvoy ([1984] 3A11E.R.417).         The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress.   An applicant does not need to exercise remedies which, although theoretically of a nature to constitute a remedy, do not in reality offer any chance of redressing the alleged breach (cf. Application No. 9248/81, Dec. 10.10.83, D.R. 34, p. 78).         It is furthermore established that the burden of proving the existence of the 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, Application No. 9013/80, Dec. 11.12.82, D.R. 30, p. 96, p. 102).         The Commission notes from the cases cited by the applicant that it appears that domestic courts will not examine the Secretary of State's reasons for refusing an application if that refusal is based on considerations of national security.         In these circumstances, the Commission finds that there is no indication that the applicant would have had any possibility of success fully challenging the refusal of the Secretary of State by way of judicial review.   The Commission is accordingly unable to accept that the application should be declared inadmissible for non-exhaustion of domestic remedies.   2.     The applicants complain that the refusal to transfer the first applicant temporarily or permanently to a prison in Northern Ireland to facilitate visits from his family is a violation of Article 8 (Art. 8) of the Convention.         Article 8 (Art. 8) of the Convention 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 Government have submitted that the relationship between the applicants does not constitute family life within the meaning of Article 8 (Art. 8) of the Convention.   They refer to case-law where emphasis was placed on the element of financial or other dependency. The Commission however considers that in the context of prisoners or other persons who are detained the concept of "family life" must be given a wider scope.   Prisoners generally have limited means of contact with the outside community and of maintaining relationships with family members.   "Family life" for prisoners is inevitably restricted to visits, correspondence and possibly other forms of communication such as telephone calls.   Emotional dependency between, for example, parents and adult children, or siblings is even enhanced in these circumstances.   The Commission recalls in this context that the European Prison Rules emphasise the need to encourage these links:         "65. Every effort shall be made to ensure that the regimes of       the institutions are designed and managed so as:         (c)   to sustain and strengthen those links with relatives and       the outside community that will promote the best interests of       prisoners and their families."         The Commission has also stated that it is of the opinion that Article 8 (Art. 8) requires the State to assist prisoners as far as possible to create and sustain ties with people outside prison in order to facilitate prisoners' social rehabilitation (eg. No. 9054/90, Dec. 8.10.82, D.R. 30 p. 113 and No. 15817/89, Dec. 1.10.90, to be published).         In light of these factors, the Commission finds that the applicants' complaints must be held as falling within the scope of Article 8 para. 1 (Art. 8-1) of the Convention.         The applicants have submitted that the refusal of temporary or permanent transfer constitutes an interference with their right to respect for their family life. The Commission considers however that the applicants are arguing in effect not that the State should refrain from acting but rather that it should take steps to implement a particular policy. Although the essential object of Article 8 (Art. 8) is to protect the individual against arbitrary interference by public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see eg. Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no. 31 p. 31 para. 31). In this context, the notion of "respect" is not clear-cut and its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in Contracting States. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual (see eg. Eur. court H.R. Abdulaziz judgment of 28 May 1985, Series A no. 94 p. para. 67 and the B. v France judgment of 25 March 1992, Series A no. 232-C para. 44)         The Commission recalls that in the present case the first applicant, who is from Northern Ireland, is detained in a prison in England and that he has requested a transfer to facilitate visits from his family, including the second and third applicants.   The Commission notes that the first applicant is serving a long term of imprisonment and that the considerable distance involved imposes difficulties in utilising visit entitlements which cannot be said to be negligible.         The Commission notes however that the first applicant is lawfully detained for serious offences committed against the background of a terrorist campaign.   The applicant is detained as a Category A (Exceptional Risk) prisoner. Any transfer would, in the Government's submission, be highly dangerous, increasing greatly the risk of escape and his detention in Northern Ireland would also facilitate his contact with others of his beliefs and increase the potential for covert subversive activity in the prison there.         The Commission also refers to its constant case-law according to which a prisoner has no right as such under the Convention to choose the place of his confinement and that a separation of a detained person from his family and the hardship resulting from it are the inevitable consequences of detention (see e.g. No. 5229/71, Dec. 5.10.72, Collection 42 p. 14 and No. 5712/72, Dec. 15.7.74, Collection 46 p. 112 ).   The Commission considers that only in exceptional circumstances will the detention of a prisoner a long way from his home or family infringe the requirements of Article 8 (Art. 8) of the Convention (see e.g. No. 5712/72, Dec. 18.7.74 loc. cit. and No. 7819/77, Dec. 6.5.78, published in part, D.R. 14, p. 186).         The Commission finds that no exceptional circumstances arise in this case.   It notes that the first applicant is detained in England since he was arrested and tried there in respect of offences committed as part of an alleged terrorist campaign in England.   As a prisoner, the applicant is subject to the normal regime applicable to his category as regards correspondence and visits. The second applicant is entitled to state financial assistance to cover thirteen visits per year though she is only able to make 3-4 visits due to her health. The Commission also recalls that the first applicant was able to marry Martina Anderson while both were detained in prison and that they are in regular contact by phone and have had seven visits together since their marriage in May 1989. The third applicant is on the approved list of visitors though she has not visited since 1989.         Having regard to the above circumstances, the Commission finds that the failure on the part of the United Kingdom Government to provide temporary or permanent transfer arrangements to Northern Ireland discloses no lack of respect for the applicants' family life within the meaning of Article 8 (Art. 8) of the Convention.         It follows that the complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants also complain that they are discriminated against contrary to Article 14 in conjunction with Article 8 (Art. 14+8) of the Convention since Irish Republican prisoners in the United Kingdom are treated less favourably than other prisoners as regards transfer.         Article 14 (Art. 14) of the Convention provides:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, race, colour, language, religion, political or other       opinion, national or social origin, association with a national       minority, property, birth or other status."         The Commission notes that the applicants do not contend that there is a blanket prohibition on transfer of Irish Republican prisoners to Northern Ireland.   In the present case, the first applicant was refused transfer at least partly on security grounds. The Commission considers that different considerations concerning security apply to different prisoners.   It recalls that the first applicant is a Category A (exceptional risk) prisoner convicted in relation to terrorist offences. In these circumstances, his position cannot be considered as analogous to that of other prisoners for the purposes of Article 14 (Art. 14) 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.   4.     The applicants also complains under Article 13 (Art. 13) of the Convention that they have no effective remedy in respect of their complaints.         Article 13 (Art. 13), however, does not require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).         The Commission recalls that it has found the applicants' complaints under Article 8 (Art. 8) of the Convention manifestly ill- founded.   In these circumstances, the Commission also finds that the applicants cannot be said to have an "arguable claim" of a violation of the Convention.         It follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission by a majority           DECLARES THE APPLICATION INADMISSIBLE.       Deputy Secretary to the                 President of the Commission       Commission          (M. de SALVIA)                           (C.A. NØRGAARD)