CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 20035/92                       by Daniel RAPHAIE                       against the United Kingdom         The European Commission of Human Rights sitting in private on 2 December 1993, the following members being present:         MM.   C.A. NØRGAARD, President            F. ERMACORA            E. BUSUTTIL            G. JÖRUNDSSON            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       MM.   C.L. ROZAKIS       Mrs. J. LIDDY       MM.   M.P. PELLONPÄÄ            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            N. BRATZA            D. SVÁBY         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 26 January 1992 by Daniel RAPHAIE against the United Kingdom and registered on 25 May 1992 under file No. 20035/92;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       17 December 1992 and the observations in reply submitted by the       applicant on 29 April 1993;   -      the parties's further pre-hearing observations submitted on 18       November 1993;   -      the hearing of the parties on 2 December 1993;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a British citizen, born in Iran in 1960, who at the time of lodging his application was detained in H.M. Prison Wayland, Norfolk.   He is represented before the Commission by Messrs. Budd Martin Burrett, Solicitors practising in Chelmsford, Essex.         The facts of the present case, as submitted by the parties, may be summarised as follows:   A.     The particular circumstances of the case         On 12 October 1988 the applicant was arrested and remanded in custody at H.M. Prison Wormwood Scrubs.   He was charged with supplying heroin and handling stolen goods. He was detained in Wormwood Scrubs until 5 December 1988, when he was released on bail. Some eight months later, on 24 August 1989, he was convicted and remanded in custody at H.M. Prison Brixton. On 1 September 1989 he was sentenced to five year's imprisonment on the charge of supplying heroin and nine months' imprisonment on various handling charges, to be served concurrently. He was transferred from Brixton to H.M. Prison Wandsworth six days later, on 7 September 1989, and remained there for about three months, until his transfer to a training prison on 11 December 1989.         The application arises out of the conditions of detention which the applicant experienced at the three prisons: Wormwood Scrubs, Brixton and Wandsworth. The applicant describes these conditions as follows:   In Wormwood Scrubs Prison:   a.     He was confined to his cell approximately 23 hours a day.   b.     The cell was overcrowded. Although it was designed for one       person only, he had to share his cell with one or two inmates.   c.     There was no integral sanitation in the cell.   He had to use a       chamber-pot in the presence of other inmates and vice-versa.   The       chamber-pot had no cover and therefore the cell had a strong       odour.   He had to eat in his cell.   At various stages of the day,       prisoners were unlocked from their cells for some 5-10 minutes       in order to empty and clean their chamber-pots and to fill their       washing bowls.   In Brixton Prison he experienced similar conditions, and in particular:   a.     He was held in 'F' wing, the psychiatric wing, with no reason       being given.   b.     The cell was 2.1m x 3.1m (6.5²), and 2.7m high.   c.     The emptying of the cell chamber-pot and the washing of plates       and cutlery were performed at the same time. Consequently the       applicant had to take his eating utensils to the toilet with him       whilst cleaning out his chamber-pot.   In Wandsworth Prison he experienced similar conditions, and in particular:   a.     His cell was 2.1m x 3.9m (8.2m²), and 2.4m high.   b.     Cockroaches, rats and cats were present in the prison.   c.     He was permitted only some 45 minutes daily exercise.         On 30 March 1991 the applicant wrote a letter to the Secretary of State together with a "fact sheet". In this "fact sheet", he made certain of the above general complaints about conditions at Wormwood Scrubs, Brixton and Wandsworth Prisons. He also made complaints about a few specific incidents which he claimed occurred at the three prisons. As he received no reply, he sent two reminders to the Secretary of State on 8 April and 30 April 1991, respectively. Finally, on 21 June 1991 the applicant lodged a formal complaint with H.M. Prison Service, enclosing the "fact sheet".         On 8 October 1991 the London North Area Manager of the Prison Service replied to the applicant by commenting on each of the items raised in his "fact sheet".   On 11 December 1991 the applicant lodged an "appeal" with the Home Secretary against the London North Area Manager's reply and requested an independent investigation of the points made in his request of 30 March 1991. The letter was passed to the London North Area Manager for consideration. On 6 January 1992 the London North Area Manager replied to the applicant that the complaints had been fully investigated by way of the requests/complaints system and it was regretted that the conclusions of the investigation were not to the applicant's satisfaction.         The factual allegations which the applicant made about his general conditions of detention were for the most part substantiated by a report in June 1989 made by the Chief Inspector of Prisons following his visit to Wandsworth, and by a report in March 1991 made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment following their visit to Wandsworth and Brixton. Since these reports, a programme to refurbish these prisons and install integral sanitation is well underway.   B.     Relevant domestic law and practice         The treatment of convicted prisoners is governed by the Prison Rules of 1964, as amended, made under the Prison Act 1952.   These Rules are supplemented by Standing Orders and Circular Instructions made by the Secretary of State which set out the detailed practice to be followed in applying the Rules.   Accommodation         Section 14 of the Prison Act provides that no cell is to be used for the confinement of a prisoner unless it is certified by an inspector that, inter alia, its size, ventilation and fittings are adequate for health.   Prison Rule 23 provides that no cell shall be used as sleeping accommodation for prisoners unless it has been certified as suitable under the above Section of the Prison Act.   The certificate also specifies the maximum number of inmates who should be confined in the cell.   However this number may be exceeded with the permission of the Secretary of State.   Sanitation         Neither the Prison Act nor the Prison Rules make any specific provision concerning toilets or showers. At the material time, the cells in Wormwood Scrubs, Brixton and Wandsworth Prisons had no integral sanitation.   Exercise         Prison Rule 27 para. 1 provides that prisoners not engaged in outdoor work, or detained in an open prison, must be given exercise in the open air for not less than one hour in all each day, but indoor physical training may be given instead. However in special circumstances that period may be reduced to a minimum of 30 minutes each day.   Remedies available to prisoners         Prisoners with grievances about the place of their detention or its conditions have various remedies available to them.   They may complain to the Governor or the Board of Visitors within the prison both of whom have a statutory duty to consider speedily requests and complaints made to them.   At the relevant time, prisoners could also petition the Secretary of State directly or enlist the aid of their Member of Parliament.         In appropriate cases, prisoners may also seek legal redress in the United Kingdom courts. In particular an action in tort for breach of the duty of care owed to prisoners might lie in a case where prison conditions are shown to be intolerable. Prisoners are entitled to obtain advice from independent lawyers. Free legal aid is available for litigation, subject to the legal aid authorities being satisfied as to the applicant's means and the merits of his case. An applicant wishing to initiate legal proceedings enjoys a period of either three or six years after the date of the matters complained of to commence domestic legal action.   COMPLAINTS         The applicant complains under Article 3 of the Convention of inhuman and degrading treatment by virtue of the prison conditions he experienced in H.M. Prisons Wormwood Scrubs, Brixton and Wandsworth. The applicant also complains that he had no effective remedy under English law and invokes Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 26 January 1992 and registered on 25 May 1992.   In his application form the applicant's complaints were limited to the conditions at Brixton and Wandsworth Prisons, Article 3 of the Convention being invoked.         After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 10 September 1992.   It decided, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit their written observations on admissibility and merits. The Commission granted the applicant free legal aid on 11 December 1992.         The Government's observations were submitted on 17 December 1992. The applicant replied on 29 April 1993 after two extensions of the time-limit fixed for this purpose. In his reply, the applicant abandoned certain of his original complaints concerning specific incidents in Brixton and Wandsworth, but maintained his grievances about the general conditions of detention and extended them to include the conditions at Wormwood Scrubs Prison. At this stage the applicant also complained under Article 13 of the Convention.         On 6 July 1993 the Commission decided to hold a hearing of the parties. On 18 November 1993 the parties submitted pre-hearing briefs. The hearing was held on 3 December 1993. The applicant was represented by Mr. K. Starmer, Counsel, and Mr. D. Lawton, Solicitor, Messrs. Budd Martin Burrett. The applicant was also present. The Government were represented by their Agent, Mr. H. Llewellyn, Mr. J. Eadie, Counsel, Mr. J. Adutt, legal adviser, Home Office, and Mr. E. Tullett, Prison Service Administrator.   THE LAW   1.     The applicant complains that the conditions of detention which he experienced in H.M. Prisons Wormwood Scrubs, Brixton and Wandsworth constituted a violation of Article 3 (Art. 3) of the Convention, for which he allegedly had no effective domestic remedy, contrary to Article 13 (Art. 13) of the Convention.         Article 3 (Art. 3) of the Convention provides as follows:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         Article 13 (Art. 13) of the Convention reads as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."   2.     At the heart of the applicant's complaints to the Commission are three general features concerning the cells in which he was kept: severe overcrowding, a lack of integral sanitation and many hours of cellular confinement per day.         The applicant alleges that the prison conditions to which he was subjected amounted to inhuman and degrading treatment, contrary to Article 3 (Art. 3) of the Convention. He claims that, in the light of the special circumstances of his case and unclear domestic law at the material time, he has complied with the formal requirements of Article 26 (Art. 26) of the Convention concerning exhaustion of domestic remedies and the introduction of an application to the Commission within six months of the final decision in the case.         The Government contend that the applicant has not observed these requirements of Article 26 (Art. 26) of the Convention. Insofar as the applicant complains of his general conditions of detention, such as overcrowding, it is conceded that no effective domestic remedy existed. The Government submit that, consequently, the six month period referred to in Article 26 (Art. 26) ran from the date of the events complained of, that is at the latest from the applicant's transfer from Wandsworth Prison on 11 December 1989.         Insofar as the applicant made specific complaints about his treatment, the Government contend that the applicant should have raised these matters at the material time so that the prison authorities could have remedied them straight away if well-founded. However, he only raised these complaints with the prison authorities in March 1991 or with the Commission in May 1992, when it was too late to deal with them. The Government consider, therefore, that again the final decision was effectively the events complained of, in which case the applicant lodged his application with the Commission out of time.         The Government recognise that the conditions of the applicant's detention may have been unpleasant and the facilities inadequate. However, there is no evidence that the applicant genuinely suffered as a result or that these conditions amounted to the severe kind of ill- treatment prohibited by Article 3 (Art. 3) of the Convention. They submit, therefore, that no breach of this provision occurred in the present case.   3.     The Commission must first consider whether the applicant has satisfied the requirements of Article 26 (Art. 26) of the Convention, which provides as follows:         "The Commission may only deal with the matter after all domestic       remedies have been exhausted, according to the generally       recognised rules of international law, and within a period of six       months from the date on which the final decision was taken."         The Commission refers to its constant case-law that the domestic remedies rule under Article 26 (Art. 26) of the Convention requires the exhaustion of those remedies that are available and sufficient. To be effective, a remedy must be capable of remedying directly the situation of which complaint is made (No. 11660/85, Macedo v. Portugal, Dec. 19.1.89, D.R. 59 p. 85). If there is no effective remedy at the applicant's disposal, then the six months' period referred to in Article 26 (Art. 26) runs from the end of the situation of which complaint is made (No. 8440/78, Dec. 16.7.80, D.R. 21 p. 138, at 147, and No. 10320/82, Dec. 11.5.83, D.R. 32 p. 303, at 305)         The Commission notes that the complaints which the applicant maintains before the Commission at this stage in the procedure are limited to his general conditions of detention in the three prisons in question. It also notes the Government's concession that the applicant had no effective remedy at his disposal at the material time for this type of complaint, neither through the internal prison channels, nor through civil litigation. The internal complaints channels could not have provided any remedy to such general problems as overcrowding or the lack of integral sanitation in cells, and the conditions in which the applicant was detained were not such as could have been effectively challenged by way of a civil claim in tort.         In the absence of any effective remedies for the applicant's complaints, the six month period envisaged by Article 26 (Art. 26) of the Convention ran from the date on which the situation in question ended. The Commission notes that the applicant left Wormwood Scrubs Prison on 5 December 1988. He left Brixton Prison on 7 September 1989 and he left Wandsworth Prison on 11 December 1989. The applicant made no complaint about his subsequent conditions of detention during his prison sentence. The situation of which he complained therefore ended, at the latest, when he was transferred from Wandsworth Prison on 11 December 1989.         In these circumstances, the Commission finds that the six month period referred to in Article 26 (Art. 26) of the Convention ran from 11 December 1989. However, the application was not lodged with the Commission until 26 January 1992, more than two years later. It follows that the applicant has not complied with the six months' rule and that the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission          President of the Commission          (H.C. KRÜGER)                      (C. A. NØRGAARD)