CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 novembre 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. 23995/94                       by Elizabeth DOWD and Bridget McKENNA                       against the United Kingdom        The European Commission of Human Rights sitting in private on 28 November 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS                  F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              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 11 February 1994 by Elizabeth DOWD and Bridget McKENNA against the United Kingdom and registered on 28 April 1994 under file No. 23995/94;        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 have had a previous application before the Commission, No. 21596/92, declared inadmissible on 1 September 1993.        The applicants are represented before the Commission by Ms. Mairin Higgins of the Irish Prisoners' Support Group, London.        The facts as submitted by the applicants, and as may be deduced from the documents, may be summarised as follows.   a.    Particular circumstances of the case        The first applicant is the mother and the second applicant the sister of Brendan Dowd who was arrested in 1975 in England and convicted in relation to 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 almost all reside in Ireland.        This request for transfer was refused by the Secretary of State on 12 February 1992 on the ground that Brendan Dowd 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 response dated 9 April 1992, Brendan Dowd was again refused on the basis that he had no links with Northern Ireland and had no intention of settling there. Brendan Dowd made further requests for transfer in March 1993        By letter dated 5 July 1994, the Home Office informed Brendan Dowd that his request for permanent or temporary transfer to Northern Ireland was refused on the basis that his family was not resident there and that he would benefit on transfer from a substantial reduction in the time served in prison.        The first applicant is now 80 years old and suffers, inter alia, from diabetes, arthritis and a leg ulcer which renders her unable to walk without difficulty.   She has suffered 30% loss of eyesight and 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 of transferring Republican prisoners regularly and without notice from prison to prison throughout the British mainland. Brendan Dowd has been transferred 13 times.   b.    Relevant domestic law and practice        Following an interdepartmental review, a report was issued on 23 November 1992 concerning the issue of transfers of prisoners to Northern Ireland prisons. Its recommendations, which were accepted and submitted to Parliament, stated that a system of extended temporary transfers would be instituted.        Since late 1993, a number of prisoners who previously lived in Northern Ireland, including those of Category A classification, have been transferred on a temporary basis from prison in mainland United Kingdom to prison in Northern Ireland.   COMPLAINTS   1.    The applicants complain of the refusal to transfer Brendan Dowd to a prison in Northern Ireland. Almost all his family reside in Ireland and the cost and difficulty of travelling to mainland United Kingdom is prohibitive. Visitors have to travel over 1000 miles, find accommodation and transport to the prison which, if remote and inaccessible, requires the use of taxis. No State assistance is given for prison visits to England to see Brendan Dowd. The estimated cost of a visit by the first applicant was £500.   The trip for the first applicant was arduous and gruelling and now it is unlikely that she will see her son again while he is held in mainland United Kingdom.        The applicants submit that there is no reasonable justification for the refusal of transfer: there is plenty of accommodation in Northern Irish prisons; in view of recent transfers of Category A prisoners, security considerations cannot justify refusing transfer Brendan Dowd and if he was transferred he would not benefit from the different rules of remission since he is a life prisoner.        The applicants invokes Article 8 of the Convention in respect of the above.   2.    The applicants complain of discriminatory treatment on the ground of Brendan Dowd's status as an Irish Republican prisoner. They submit that there have often been transfers of Category A prisoners who are not Republicans and the use of Category A is constant in the case of Repubicans. The constant amendment of the applicable transfer criteria discloses a policy of blanket refusal of transfers for Republicans.   3.    The applicants complain that the refusal of transfer is an additional punishment above the sentence imposed by the courts and amounts to inhuman and degrading treatment contrary to Article 3 of the Convention.   4.    The applicants finally invoke Article 13 of the Convention, alleging that they have no effective remedy in respect of their complaints.   THE LAW   1.    The applicants complain of the refusal to transfer Brendan Dowd, their son and brother respectively, to a prison in Northern Ireland which would facilitate their visits and the maintenance of their family relationships. They invoke Article 8 (Art. 8) of the Convention which 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 recalls that it considered a previous complaint by the applicants in No. 21956/93 which related to the refusal of transfer. In its decision dated 1 September 1993, the applicants' complaints under Articles 8 (Art. 8) of the Convention were rejected as manifestly ill-founded. However, pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention, the Commission must reject any petition which is substantially the same as a matter which has already been examined unless it contains relevant, new information.        The Commission notes that the applicants make the same complaints and rely on the same facts as contained in the earlier application. Other additional facts and arguments are also included, in particular, the recent adoption of a policy of transferring prisoners, even of Category A security classification, to Northern Ireland on a temporary basis. The applicants argue, inter alia, that this indicates that the alleged security justification for refusing transfers to Irish Republican prisoners cannot be maintained, and point out that temporary transfers involve moving the prisoners there and back.        The Commission finds however that the matters raised by the applicants do not constitute relevant, new information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention having regard to the grounds on which the Commission declared the applicants' previous complaints inadmissible.        It follows that the applicants' complaints must be rejected as substantially the same pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.   2.    The applicants complains of discriminatory treatment as relatives of a Republican prisoner.        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 recalls that it dismissed a previous complaint under this provision in the applicants' earlier application (No. 21596/93). As above, the applicants have referred to alleged new facts and arguments challenging the reasoning in the Commission's previous decision which referred to security considerations in finding that Brendan Dowd could not be considered in an analogous position to other prisoners for the purposes of Article 14 (Art. 14) of the Convention.        The applicants complain that as a Republican prisoner Brendan Dowd, and thereby themselves as his relatives, have been punished as regards the policy of transfers. It is alleged that, save for rare and special cases, there was a blanket refusal on transfers of Republican prisoners whereas non-Republican prisoners, even of Category A status, would generally be granted transfers to and from Northern Ireland.        The Commission notes that these allegations were made in substance in the applicants' previous application.   In these circumstances, the Commission is not satisfied that the applicants' arguments concerning discrimination constitute relevant, new information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.        It follows that the part of the application must be rejected as being substantially the same pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.   3.    The applicants complain that the refusal to transfer amounts to inhuman and degrading treatment contrary to 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 a inhuman. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment 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 Commission has examined the complaint as submitted by the applicants. It finds that it fails to disclose treatment of such severity as to fall within the scope of Article 3 (Art. 3) of the Convention. It follows that this part of the applicantion must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicants also invoke Article 13 (Art. 13) of the Convention, which provides that :        "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."        The Commission recalls however that Article 13 (Art. 13) 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 finds that the applicants cannot be said, in light of its findings above to have an "arguable claim" of a violation of their Convention rights.        It follows that this complaint must be dismissed 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 Commission        President to the Commission            (M. DE SALVIA)                         (C.A. NØRGAARD)