CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 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 }                            Application No. 18264/91                       by Arthur HOSEIN                       against the United Kingdom           The European Commission of Human Rights (Second Chamber) sitting in private on 8 September 1993, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO              Mr.    K. ROGGE, 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 14 April 1991 by Arthur HOSEIN against the United Kingdom and registered on 27 May 1991 under file No. 182264/91;         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 applicant is a citizen of the United Kingdom born in 1936 and currently serving a sentence of life imprisonment in H.M. Prison, Park Lane, Liverpool.   This is his third application to the Commission. The first (No. 5312/71) was declared inadmissible on 9 February 1973. The second (No. 9086/80 concerning interference with his correspondence) was declared admissible on 4 March 1985;in its Report adopted on 2 July 1985, the Commission concluded that there had been a violation of Article 8 of the Convention.   By Resolution No. DH (86)5 the Committee of Ministers decided that there had been a violation of Article 8 of the Convention.       The facts of the present case as submitted by the parties may be summarised as follows.          The applicant alleges that on 9 February 1989 he was assaulted by prison officers, for causing an incident in the dining room when he complained, as a Moslem, that the same utensils were being used for bacon and other food.         The allegations of assault were the subject of an internal investigation and enquiries by the police. The internal investigation concluded that there was no evidence to support the allegations and recommended that staff were to be commended for their professional handling of the incident. The   Crown prosecution service also concluded that there was insufficient evidence to take proceedings.         The applicant consulted his solicitors and was examined by their medical adviser. No civil proceedings were subsequently instituted.         The applicant subsequently wrote about this incident in a letter of 21 June 1989 to his Member of Parliament in which he named several prisoners as witnesses to the assault and identified the officers allegedly involved in the assault. The letter was stopped. The reason recorded was that the inmates were not prepared to be named.         The applicant wrote a letter of 13 July 1989 to the Commission in which he again complained of the assault naming the prison officers and witnesses and also complaining about a number of other matters including his allegation that he was being given the wrong medication and that his letter to the Member of Parliament had been stopped.   This letter was also stopped. The recorded reason was "all allegations mentioned have been dealt with".         The applicant complained about the stopping of the letters in a petition to the Secretary of State dated 17 July 1989.         The Government state that officials dealing with the petition overlooked the new allegations concerning the stopping of the two letters and did not give an adequate reply.           A Member of Parliament later complained on the applicant's behalf and in a letter in reply dated 5 March 1991, the Home Office assumed erroneously that he referred to the stopping of 2 earlier letters and did not deal with the complaints concerning the letter to the Member of Parliament and to the Commission. The applicant wrote again to the Member of Parliament who again referred the complaints to the Home Secretary. The Government state that further enquiries were made but before a reply could be sent the file was put away in error in Prison Service Headquarters.         In consequence of the present application, the Government state that a response to the complaints was sent to the Member of Parliament. In a letter dated 3 August 1992, the Home Secretary stated:         "In the meantime Mr. Hosein had made a complaint to the European       Commission of Human Rights, in which he claimed that his letter       of 21 June 1989 to William Waldegrave and one dated 13 July 1989       to Secretary Dollé at the ECHR were both stopped in breach of       Article 8 of the Convention.   Our observations on this complaint       have now been sought and it is clear that those letters should       not have been stopped.   The criteria for stopping letters to MPs       or the ECHR are rightly very narrow and in neither case were they       properly applied, although I am satisfied that it was a genuine       error and not meant maliciously.   Indeed, shortly afterwards Mr.       Hosein was able to write to several MPs and to the ECHR.   His       second letter to Secretary Dollé was posted on 1 August 1989 and       initiated their investigation of the complaint."     RELEVANT DOMESTIC LAW AND PRACTICE         The power to read, examine and stop letters is contained in the Prison Rules 1964 as amended, made under section 47 of the Prison Act 1952.   Rule 33(3) provides:         "Except as provided by these Rules, every letter or communication       to or from a prisoner may be read or examined by the governor or       an officer deputed by him, and the governor may, at his       discretion, stop any letter or communication on the ground that       its contents are objectionable or that it is of inordinate       length."         Rule 33(3) is supplemented by Standing Order 5 sections B to F. Standing Order 5 D5 provides that a letter to a member of the UK Parliament may only be stopped if it would be an offence to send it (e.g. if it contains matter which is indecent and obscene).         Section F deals with the European Commission of Human Rights. Standing Order 5 F6 sets out the grounds on which correspondence with the Commission, including applications, may be stopped.   They are that it contains:           (1)   material which it is an offence to send through the post            (e.g. material which is indecent and obscene);         (2)   plans or material which would tend to assist or encourage            the commission of any criminal offence (including attempts            to defeat the ends of justice by suggesting the fabrication            or suppression of evidence);         (3)   escape plans, or material which if sent could jeopardise            the security of the prison establishment;         (4)   material which could jeopardise national security;         (5)   obscure or coded messages which there is reason to suspect            may contain any of the above.     COMPLAINTS         The applicant complains of the stopping of his letters of 21 June and 13 July 1989 to a Member of Parliament and to the Commission.   He invokes Article 8 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 14 April 1991   and registered on 27 May 1991.         On   2   April 1992, the Commission 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 13 August 1992 after one extension of the time-limit and the applicant's observations in reply were   submitted on 27 November 1992.         On 16 February 1993,   the Commission decided to grant legal aid to the applicant.         Following the applicant's instruction of a solicitor, further observations were submitted on behalf of the applicant on 30 June 1993.     REASONS FOR THE DECISION         The applicant complains that two of his letters addressed respectively to his M.P. and to the European Commission of Human Rights were stopped by the prison authorities.         The Commission has examined these complaints under Article 8 of the Convention which provides that:         "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 respondent Government admit that the two letters were stopped and that rules of domestic law in that respect were wrongly applied. They submit, however, that no harm was done since the applicant was allowed to send a letter to the Commission 3 weeks later and a month later to the M.P.   They rely on the case-law of the Commission that a delay in the sending of a letter may not infringe the requirements of Article 8.         The applicant emphasises the total lack of justification for the stopping and the failure of the authorities to treat his complaints seriously with the result that they were regarded as part of a paranoid condition. However he does not allege that his condition was in fact attributable to this incident.         The Commission notes the Government's admission that the letters were wrongly stopped. This admission was made following a proper investigation of the matter. Further, since the incident, the applicant's letters to the Commission and to others have issued without hindrance. In these circumstances, the Commission finds that the matter may now be considered as resolved within the meaning of Article 30 para. 1(b) of the Convention. The Commission further considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of the application.         It follows that the application may be struck off the list of cases pursuant to Article 30 para. 1 of the Convention.         For these reasons, the Commission unanimously           DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.   Secretary to the Second Chamber         President of the Second Chamber            (K. ROGGE)                                  (S. TRECHSEL)