CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1994

.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. 23092/93                       by A.S.J.                       against the United Kingdom         The European Commission of Human Rights (Second Chamber) sitting in private on 12 October 1994, 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                  J. MUCHA                  D. SVÁBY              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 7 September 1993 by A.S.J. against the United Kingdom and registered on 15 December 1993 under file No. 23092/93;         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 applicant is a British citizen born in 1951 and currently serving a prison sentence in Holme House Prison. The facts as submitted by the applicant may be summarised as follows.         In 1986, the applicant was sentenced to ten years' imprisonment for two armed robberies, aggravated burglary, false imprisonment and possession of an imitation firearm. He received a consecutive sentence of five and a half years in 1990 for taking a prison officer hostage and a further two and a half years consecutive for taking a prison governor hostage in 1991.         Following an incident on 8 October 1992, the applicant was charged under the Prison Rules with assault on another prisoner. After internal prison adjudication, the applicant received 25 days loss of remission which on appeal was reduced to 7 days. The applicant's solicitors' application for legal aid to seek judicial review of the decision was rejected on 15 May 1993 and the appeal against this decision refused also.         The applicant has since October 1992 been transferred frequently from prison to prison.   He was moved to Liverpool (9 October 1992), Hull (4 November 1992), Garth   (6 November 1992), Full Sutton (2 December 1992), Lincoln (4 January 1993), Bullingdon (February 1993), Woodhill Special Unit (March 1993) Wormwood Scrubs (March 1993), Woodhill Special Unit, Brixton, Belmarsh, Wandsworth, Whitemoor, Hull (24 August 1993), Holme House Prison (on or about February 1994 to present). He was kept in segregation during this time for a number of renewable monthly periods.         On the applicant's account, on 7 December 1992 he smashed the porcelain sink in his cell with the intention of using the prison disciplinary proceedings to complain about staff. He was removed to a strip cell and his clothes removed. When the applicant then cracked, in an attempt to smash, the plastic guard on the window of the cell, he was placed in a body belt and ratchet handcuffs. He was kept segregated and restrained until about lunchtime the following day though restraints were loosened to allow him to take meals.         On 16 December 1992 following an incident in which the applicant had kicked at the wall of his cell loosening the panels, he was returned to a strip cell and restrained in a body belt.         On 10 January 1993, while in Lincoln prison the applicant lost his temper and destroyed the toilet   seat in his cell. He was removed to a special cell which had no furniture. There was no functioning call bell in the cell and the applicant had difficulty in attracting staff attention when he required drinking water. On 11 January 1993, he was placed in restraints which were not removed until 13 January. He was charged with a number of prison disciplinary offences over this period including assault of a prison officer.         Following an incident on or about 25 March 1993, the applicant received injuries. He was charged under prison discipline with assault of a prison officer. He alleged that he had been injured by a prison officer and was removed handcuffed to a hospital for X rays to be taken.         In reply to complaints by the applicant's solicitors, the Home Office replied on 19 April 1993 that special cells and restraints were only used when the safety of the prisoner, staff or the fabric of the building was under threat. On 7 December 1992 since the applicant was violent and threatening, restraints were used to prevent him causing damage to his cell or to himself. On 11 January 1993 restraints were used following an attempt by the applicant to take a member of staff hostage. It was acknowledged that the special cell at Lincoln should have been equipped with a working call bell and this had now been repaired.         In reply to an enquiry by a Member of Parliament on behalf of the applicant in reference to his frequent moves between prisons, the Home Office on 3 August 1993 replied:         "<the applicant> has been in custody since 1986 and has       always been a difficult prisoner.   His disciplinary record       is appalling.   He has lost almost two years remission as       well as receiving a further sentence of two years in 1991       as a result of his part in a hostage taking incident at       Frankland prison in 1990.   As a direct result of his       difficult behaviour he was placed in Hull special units in       March 1991 and for a period of almost two years appeared to       settle.   His removal from Hull followed his involvement in       an assault on another inmate.   For whilst special units are       designed to cater for inmates whose behaviour is       disruptive, conflict between individual prisoners in these       small units makes them almost impossible to manage       successfully.   There are only three such special units and       it was decided that <the applicant> should be given the       opportunity of a place at the special unit in Woodhill, a       prison at Milton Keynes.   Regrettably there was a six month       wait for the place in Woodhill unit and during that period       <the applicant> found it impossible to settle at any prison       and had to be removed from Garth to Full Sutton and then to       Lincoln and Bullingdon.   At each of these establishments he       threatened staff.         He was finally moved to the Woodhill unit when it opened in       February of this year.   His initial stay there lasted       approximately two weeks before he rejected the unit and in       consequence was removed to Wormwood Scrubs.   During his       stay at the Scrubs efforts were made by Woodhill staff to       persuade him to return to the unit, efforts which were       partially successful in that he agreed to give Woodhill       another try but on his return almost immediately refused to       cooperate with the regime.         <The applicant> was then transferred to Brixton and       subsequently to Belmarsh.   He is currently at HM Prison,       Wandsworth.   It is not the policy of the Prison Service to       keep prisoners on the move.   It is obviously better for all       concerned if prisoners can settle on ordinary location.       However, given our experience of <the applicant's> past       behaviour it is prudent from a Tactical Management point of       view to make preparations to move him to another prison       should his behaviour prove difficult and relationships in       any prison break down.   Belmarsh were quite content to keep       <the applicant> and I understand offered him the       opportunity to remain there.   The latest move to HM Prison,       Wandsworth was at his own request.         In the long term attempts will be made to see if <the       applicant> can be settled and the special unit selection       committee will continue to keep him under monthly review       with a possibility of granting a place in one of the units       as soon as it is practicable."         The applicant's solicitors sought counsel's advice concerning the possibility of action for use of the restraints. In her opinion of 14 October 1993, counsel advised that it did not appear that the prison rules had been breached in the applicant's case and that given the behaviour to which the applicant himself admitted a court would be unlikely to impugn the authorities' actions to restrain him. A claim in negligence for damages would be likely to fail given the applicant made no claim of injury to his mental health and the only physical evidence of injury were minor abrasions to his wrists.   COMPLAINTS         The applicant complains of the constant transfers to which he has been subjected. He submits that this disrupted his correspondence and that he was unable to pursue an educational correspondence course.         The applicant complains that the special cell in which he was held in Lincoln was, contrary to Prison Rules, not equipped with a call bell which permitted a prisoner to communicate with staff.         The applicant further complains of the use of ratchet handcuffs on body belts which he submits are inhuman and dangerous.         The applicant invokes Article 3 of the Convention in respect of the above.   THE LAW         The applicant complains of aspects of his treatment in prison. He complains of the repeated transfers between prisons, the use of ratchet handcuffs and the lack of a call bell in a special cell. He invokes Article 3 (Art. 3) of the Convention which provides:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."         The case-law of the Convention organs establishes that ill- treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention. Further, the Court has held that the suffering occasioned must attain a certain level before treatment can be classified as inhuman. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment, its purpose and its physical or mental effects (see eg. Eur. Court H.R., Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).         The applicant complains that he has been subject to a series of transfers from prison to prison, which practice he states has been criticised in official reports and may have psychological effects similar to those of long term isolation. He has also on occasion been restrained in ratchet handcuffs attached to a belt, the use of which he submits is inhuman and dangerous. He also refers to the failure to provide a special cell with a call bell with which he could communicate with prison staff, such bells being necessary since the cells are soundproofed and there is no other means of effectively attracting attention.         The Commission notes with regard to the transfers that according to the Home Office explanation to a Member of Parliament the frequency was the result of the applicant's violent behaviour and his failure to co-operate with the prison regime. The Commission notes that a number of the transfers were at the applicant's own request or with his agreement. It notes that the applicant makes no complaint as to any possible ill-effects on his physical or mental health as a result of the transfers in his case.         As regards the use of ratchet handcuffs on the applicant, the Commission notes that this was in response to incidents in which the applicant was, even on his own account, violent and threatening. The Commission recalls that counsel advised that the use of the handcuffs was in accordance with the prison rules and that since there was no significant mental or physical damage caused, no action for negligence would succeed. The Commission would   comment that the use of mechanical restraints of this type must be subject to strict controls limiting their use to when unavoidable and controlling the duration of use. Having regard to the relatively short duration of the use and the absence of any more than minimal ill-effects in this case, the Commission finds no indication that the restraints were used in a manner which was abusive or otherwise incompatible with the requirements of the Article 3 (Art. 3) of the Convention.         In respect of the applicant's complaint about the lack of a call bell in a special cell, the Commission notes that the authorities acknowledged that this was a fault on their part and have taken steps to remedy it. While the applicant was detained in the cell for several days without a bell, it is not apparent that he as a result suffered any long term ill-effects.         The Commission concludes that the applicant's complaints fail to disclose treatment of such severity as to fall within the scope of Article 3 (Art. 3) of the Convention.         The Commission notes that the applicant complains also that his frequent transfers from prison to prison disrupted his correspondence and affected his ability to pursue a correspondence course. The Commission has examined these complaints under Article 8 (Art. 8) of the Convention (freedom of correspondence) and Article 2 of Protocol No. 1 (P1-2) (right to education) but finds no issue arising under those provisions.         It follows that the application must 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 unanimously   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)