CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 septembre 1993

.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 }                                   FIRST CHAMBER                             AS TO THE ADMISSIBILITY OF                         Application No. 21596/93                       by Elizabeth DOWD and Bridget McKENNA                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 1 September 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  N. BRATZA              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 5 February 1993 by Elizabeth DOWD and Bridget McKENNA against the United Kingdom and registered on 29 March 1993 under file No. 21596/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The first applicant is an Irish citizen born in 1914 and resident in Kerry. The second applicant also an Irish citizen was born in 1952 and is resident in Kerry.         The applicants are represented before the Commission by Ms. Mairin Higgins of the Irish Prisoners' Support Group.         The facts as submitted by the applicants, and as may be deduced from the documents, may be summarised as follows.         The first applicant is the mother of and the second applicant the sister of Brendan Dowd who was arrested in 1975 in England and convicted of republican-associated offences for which he received 3 discretionary life sentences. He is detained as a Category A (High Risk) prisoner.         By petition dated 19 February 1991, Brendan Dowd, who was born in Ireland, requested that he serve his prison sentence in Northern Ireland in order to be near his family and friends who all reside in Ireland.         This request for transfer was refused by the Secretary of State on 12 February 1992 on the ground that he fell outside the requisite criteria for a transfer since he had no links with Northern Ireland and did not intend to settle there on release.         Further petitions were made on 18 and 19 March 1992. By reply dated 9 April 1992, the Secretary of State stated that he had fully considered the appeal against the refusal of transfer but maintained it considering that no compelling compassionate factors arose.         The first applicant is now 79 years old and suffers, inter alia, from diabetes, arthritis and a leg ulcer which renders her unable to walk without difficulty.   She has received medical advice that the journey to England to visit her son would adversely affect her health. She continued nonetheless to visit until, after a visit in July 1991, she was forced to accept that it was no longer possible. The first applicant also received no financial assistance for visits which   cost approximately £500 each.         The second applicant has visited her brother in prison twice since his arrest. She suffers from a severe form of travel sickness which leaves her ill for days after an air or sea journey and therefore renders her unable to visit save in the most compelling circumstances as for example in 1981 after their father's death.         Problems with regard to visiting are exacerbated by the policy transferring Republican prisoners regularly and without notice from prison to prison throughout the British mainland. Brendan Dowd has been transferred 13 times.     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.   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."         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) 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 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 on security grounds.         The applicants also complain that they are discriminated against since they and Brendan Dowd are treated differently on the basis of political opinion contrary to Article 14 of the Convention. In this regard, they refer to the automatic categorisation of republican prisoners as Category A.         The applicants further submit that they have no effective remedy as required by Article 13 of the Convention.     THE LAW   1.     The applicants complain that the refusal to transfer Brendan Dowd 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 Commission has considered whether the relationship between the applicants and Brendan Dowd constitutes family life within the meaning of Article 8 (Art. 8) of the Convention.   It notes that the first   applicant is the mother of Brendan Dowd and that the second applicant is his sister. The Commission recalls that it has held that in the context of prisoners or other persons who are detained the concept of "family life" must be given a wider scope than in other situations:         "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.' "         (See Nos. 18632/91, Dec. 9.12.92, and 19085/91, Dec. 9.12.92, to be published in D.R.)         The Commission has also stated its 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 (e.g. No. 9054/80, 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 also 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 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 e.g. Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, p. 15, 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 e.g. Eur. Court H.R. Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 33-34, para. 67 and the B. v France judgment of 25 March 1992, Series A no. 232-C p. 47, para 44).         The Commission recalls that in the present case Brendan Dowd who is from Ireland, is detained in a prison in England and that he has requested a transfer to Northern Ireland to facilitate visits from his family, including the first and second applicants.   The Commission notes that Brendan Dowd is serving a long term of imprisonment and that the considerable distance involved imposes difficulties, which cannot be said to be negligible, in utilising visit entitlements.         The Commission notes however that Brendan Dowd is lawfully detained for serious offences committed against the background of a terrorist campaign.   He is detained as a Category A prisoner and there is no indication that in his case this classification is arbitrary. Any transfer therefore would arguably be highly dangerous, increasing the risk of escape (see also Nos. 18632/91 and 19085/91, Dec. 9.12.92).         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. 18.7.74, 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 applicants submit that there are exceptional circumstances in that secure alternative accommodation exists in Northern Ireland and that there is no convincing reason which outweighs the humane considerations in favour of transfer.   The Commission finds however that these arguments are insufficient in themselves to constitute exceptional circumstances.   It notes that Brendan Dowd is detained in mainland United Kingdom since he was arrested and tried there in respect of offences committed as part of an alleged terrorist campaign there.   As a prisoner, he is subject to the normal regime applicable to his category as regards correspondence and visits.         Having regard to these circumstances, the Commission finds that the failure on the part of the United Kingdom Government to provide 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.     2.     The applicants also complain that they are discriminated against contrary to Article 14 (Art. 14) of the Convention on the ground of political opinion 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.   Insofar as the refusal of transfer in this case can be said to be motivated by Brendan Dowd's status as an Irish Republican prisoner, the Commission considers that different considerations concerning security apply to different prisoners.   It recalls that he is a Category A 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.   3.     The applicants also complain under Article 13 (Art. 13) of the Convention that they have no effective remedy before a national authority 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' complaint 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.     Secretary to the First Chamber        President of the First Chamber           (M.F. BUQUICCHIO)                      (A. WEITZEL)