CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 34486/97                       by Michael McHugh                       against Ireland           The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs    M. HION            Mr     R. NICOLINI              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 6 September 1993 by Michael McHugh against Ireland and registered on 14 January 1997 under file No. 34486/97;         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 an Irish national, born in 1966 and currently serving a sentence in Portlaoise prison, Ireland. The facts of the case, as submitted by the applicant, can be summarised as follows.   A.      Particular circumstances of the case         The applicant was arrested on 27 June 1985. He alleges that he was severely beaten on arrest and later in the police station, that a policeman tried to murder him later in hospital and that he was framed and arrested on the basis of false charges.         He was tried in 1985 by the Special Criminal Court, convicted of capital murder (of a policeman) and sentenced to death in December 1985. The applicant did not, at that stage, apply to the Special Criminal Court for leave to appeal to the Court of Criminal Appeal. His sentence was later commuted by the President to 40 years imprisonment to be served without remission.         The applicant had non-contact visits with both of his parents in July 1985 and December 1986. His father died in December 1988 and the applicant was refused permission to attend the funeral. His mother is 72 years old and lives in Crossmaglen, Co. Armagh. The round trip between Crossmaglen and Portlaoise prison is 225 miles approximately. He last saw his mother in December 1989 (during an open visit in Portlaoise) when she was driven down by a cousin. The applicant claims that his mother is now unfit to make this journey and she has submitted a medical certificate dated 28 August 1996 from Crossmaglen Health Centre which states that "she is unfit to cope with making the long journey to Portlaoise to visit her son in prison".         On 22 March 1991 the applicant's representative applied to the Special Criminal Court for a Certificate of Leave to Appeal against conviction. The application was refused although legal aid was granted for it.         It appears that the applicant (with the assistance of his solicitor) subsequently attempted to renew an application for leave to appeal and to obtain documents he considered relevant in this respect. By letter dated 30 June 1992 the applicant's solicitor confirmed that the Criminal Appeals Office had indicated that the transcript of the trial proceedings should be available by the end of July that year, at which stage they would be ready to set in train the appeal process. Letters from the applicant's solicitor dated 22 September 1994 and 13 July 1995 demonstrate continuing attempts made by that solicitor to obtain access to documentation (relating to the applicant's trial) from the Chief State Solicitor. The applicant claims that the failure by the authorities to give his solicitors access to certain trial documents has frustrated these latter appeal attempts.         In order to obtain an escorted visit to see his mother, the applicant applied to the High Court for leave to issue an order of mandamus by way of judicial review. On 12 February 1996 the High Court refused his application, stating that "temporary release for this purpose is entirely a matter within the discretion of the Minister and this Court has no jurisdiction to intervene". The applicant appealed to the Supreme Court which court, on 20 May 1996, requested the attendance of the applicant. The applicant was brought under escort in June 1996 before the Supreme Court to be heard by that court. On 7 June 1996 the Supreme Court rejected the appeal.         Having reviewed Section 2 of the Criminal Justice Act 1960 and Rule 3 of the Prisoners (Temporary Release) Rules 1960 (S.I. No. 167 of 1960), the Supreme Court found that the applicant's application touched the question of temporary release and that no distinction fell to be made between temporary release (in the generally understood meaning of that term) and any form of release under escort - both were considered to be exclusively a matter within the Minister's discretion.   B.     Relevant domestic law and practice   (a)    Temporary release         Section 2 of the Criminal Justice Act 1960 provides that the Minister may make rules providing for temporary release (subject to such conditions, if any, as may be imposed in each particular case) of persons serving a sentence of penal servitude or imprisonment. The rules made under section 2 are contained in the Prisoners (Temporary Release) Rules, 1960; S.I. No. 167 of 1960. Rule 3(1) thereof provides:         "The Governor or other officer in charge for the time being of       a prison may, subject to the directions of the Minister and       subject to any exceptions which may be specified in the       directions of the Minister, release temporarily for a specified       period a person serving a sentence of penal servitude or       imprisonment in that prison."         The Sentence Review Group is a non-statutory body established in 1989 in order to advise the Minister for Justice in relation to the administration of long term sentences. In considering whether to recommend temporary release, or other concessions, the Sentence Review Group has to have regard to the interests of the public as a whole and to the interests of the prisoner and therefore applies the following criteria:         i.    Would a release constitute a threat to the community?         ii.   Is it reasonable to grant temporary release at this            particular stage in view of the nature of the crime and the            offender's previous criminal record?         iii. Does the offender merit temporary release having regard to            his behaviour while in prison?         iv.   Are there any compassionate grounds which warrant special            consideration?   (b)    Section 63 of the Prison Rules 1947         The rules for the government of prisons are contained in the Prison Rules 1947 ("the 1947 Rules") and were enacted by the Minister for Justice by way of Statutory Instrument 320 of 1947. Rule 63 is entitled "Prisoners' letters" and it reads as follows:         "Every letter to or from a prisoner shall be read by the       Governor, or other responsible officer deputed by the Governor,       and initialled by him; and if the contents are objectionable, it       shall not be forwarded, or the objectionable part shall be       erased, according to discretion. The Governor shall use his            discretion in communicating to or withholding from a            prisoner at any time the contents of any letter addressed            to the prisoner, but shall note in his journal every case            in which he thinks it proper to withhold a letter which,            according to the rules, might be communicated to or written            by a prisoner."   (c)    Relevant constitutional rights         Article 40(3) of the Constitution reads as follows:         "1. The State guarantees in its laws to respect, and, as far as       practicable, by its laws to defend and vindicate the personal       rights of the citizen.         2. The State shall, in particular, by its laws protect as best       it may from unjust attack and, in the case of injustice done,       vindicate the life, person, good name, and property rights of       every citizen."         The domestic courts recognise the existence of further personal rights which are protected by Article 40(3) of the Constitution either as rights ancillary or corollary to those expressly mentioned in Article 40(3)(2) or as latent in the expression "personal rights" in Article 40(3)(1). One of these recognised "unenumerated rights" is the right to communicate (Attorney General v. Paperlink Limited [1984] ILRM 343 and McKenna v. An Taoiseach, High Court, 8 June 1992) and it may be that a right of a prisoner to communicate with a member of his/her family is also to be derived from Article 40(3) (the State (Murray) v. Governor of Limerick prison, High Court, 2 August 1978). In addition, certain other rights relating to the family can also be derived from Article 40(3) (Murray v. Ireland [1985] IR 532).         The domestic courts also recognise that an inevitable practical and legal consequence of imprisonment is that a great many of the constitutional personal rights of the prisoner are for the period of imprisonment suspended or placed in abeyance (The State (Richardson) v. the Governor of Mountjoy Prison [1980] ILRM 82). Accordingly, (and apart from breaches of constitutional rights of such a nature as to affect the lawfulness of detention for which a habeas corpus action would be appropriate), the domestic courts recognise the prisoner's right of access to court to complain of an interference with constitutional rights which is not necessary to give effect to the sentence of the court (The State (Fagan) v. Governor of Mountjoy Prison, High Court, 6 March 1978).   (d)    Relevant case-law regarding prisoners' correspondence         The High Court in the Kearney case (Kearney v. the Minister for Justice [1986] IR 116), considered, inter alia, the constitutionality of Rule 63 of the 1947 Rules further to a plenary summons seeking, inter alia, a declaration that Rule 63 of the 1947 Rules was unconstitutional. The plaintiff's principal objection was that his letters to and from his solicitor were read by the Governor or his deputy - he submitted that the power to interfere with his right of communication with his solicitor, relatives and friends could only be interfered with in exceptional circumstances (for example, proven security issues) and in such cases he should be present when letters were opened for inspection.         The High Court held that the constitutional right to communicate could be regulated by law and that prisoners retained only those constitutionally protected rights which did not depend on a person's liberty and which were compatible "with the reasonable requirements of the place in which he is imprisoned". The High Court found that the evidence in the case established that the restriction on the right to communicate which involved reading all letters to and from prisoners (including legal correspondence) could reasonably be justified on the grounds of security and was not therefore unconstitutional. In reaching this conclusion the High Court noted that in the case of legal correspondence addressed to and from the prison, "staff are instructed to read the letter only to the extent necessary to ensure that it relates to the prisoner's legal affairs. Staff are expected to treat as confidential all information obtained as a result of the operation of Rule 63". Moreover, the High Court considered the plaintiff's suggestion that a prisoner should be present every time his correspondence was opened as "unreasonably burdensome".         As regards the Golder and Silver judgments of the European Court of Human Rights to which the High Court was referred "in passing" (Eur. Court HR, Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18 and Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61), the High Court noted that the facts of those cases were very different from those of the Kearney case. The High Court noted, however, that both cases made clear that some interference with prisoner's correspondence was permitted according to the ordinary and reasonable requirements of imprisonment. Since, however, it was established that certain correspondence had not been passed on to the prisoner, in breach of Rule 63, the plaintiff was awarded £25 nominal damages against the State in that latter respect. The plaintiff did not pursue an appeal to the Supreme Court.         The Supreme Court in the case of Hutchinson v. the Department of Justice and the Governor of Mountjoy Prison (a judicial review application) was faced with allegations of suppression and censorship of mail in circumstances where no indication had been given by the Governor of what mail had been so suppressed or censored and why. The court pointed out in its judgment of 16 October 1992 that a prisoner serving a sentence must not be incommunicado and had a general right, subject to prison discipline, to communicate with persons outside the prison. It followed that the prisoner was entitled, at least, to information about what letters had been withheld and why. Accordingly, the plaintiff was accorded liberty to apply for an order of mandamus directing the Governor to inform the plaintiff of any letter which had not been transmitted or censored and to supply short reasons for the same.         The Supreme Court in the case of Holland v. the Minister for Justice and Others also considered a judicial review application for an order of mandamus based on allegations that a letter written in February 1993 by the plaintiff on behalf of a fellow prisoner had been returned to him by the prison authorities. The court, in its judgment of 9 July 1993, referred to both the above-cited Kearney judgment of the High Court and its own judgment (cited above) in the Hutchinson case and went on to point out that the justification for Rule 63 of the 1947 Rules was to ensure that nothing was done to undermine the security or good discipline of the prison through correspondence. However, the plaintiff was given leave to apply to the High Court for an order of mandamus requesting reasons for the failure to transmit the letter. That application was subsequently rejected by the High Court on 28 January 1994 and, on appeal, by the Supreme Court on 13 May 1994 because the relevant letter had, by then, been transmitted by the prison authorities. No further point was taken as regards the delay in transmission of that letter by either court.     COMPLAINTS   1.     The applicant complains about the refusal of the authorities to allow him an escorted visit to Dundalk to see his mother whom he has not seen since December 1989 and who is unfit to make the journey to his prison. He invokes Articles 8 and 11 of the Convention.         He also submits that other prisoners in the same position as he obtain temporary leave and escorted visits and that he is, contrary to Article 14 of the Convention in conjunction with Article 8, being singled out for unfair treatment in this respect.         The applicant also complains about interference with his correspondence by the prison authorities.   2.     The applicant also complains that a "tribunal" complying with the requirements of Article 6 para. 1 of the Convention should have decided the question of his visit entitlements. He complains that he had no legal aid for his application in this respect.   3.     The applicant alleges that he was beaten on arrest in June 1985 and immediately thereafter. He also claims that a policeman tried to murder him in hospital when recovering from the injuries the police had allegedly inflicted on him during his arrest.         He also complains that his trial was a farce, that fabricated statements formed the basis of his conviction, that his lawyers were part of the conspiracy and that he was framed. He considers that the Special Criminal Court is not a real court.     THE LAW   1.     The applicant complains about the refusal by the authorities to allow him an escorted visit outside of the prison to see his mother. He invokes Articles 8 and 11 (Art. 8, 11) of the Convention. The Commission considers that this complaint falls to be considered under Article 8 (Art. 8) of the Convention.         The applicant submits that his mother is too ill to make the long trip to Portlaoise, that he has only served approximately 13 years of a 40 year sentence, that he last saw his mother in December 1989 and that his mother is already 72 years old. He would accept an escorted visit (even in handcuffs) to a large military barracks in Dundalk which is just before the border with Northern Ireland and which is not too far from where his mother lives. This would respond to the authorities' alleged concern about Irish policemen crossing the border into Northern Ireland. He points out that he was brought before the Supreme Court in Dublin in June 1996 from Portlaoise (which is approximately half the distance of the trip to Dundalk) and that there is no justification for not bringing him approximately 60 miles further to Dundalk to see his mother.         He also complains under Article 14 (Art. 14) of the Convention that other prisoners in the same position as him have obtained the necessary facilities to allow such visits and even longer periods of unescorted temporary release.         He further complains about interference with his correspondence, without invoking in particular any Article of the Convention. Many of the applicant's letters to the Commission, together with certain copy letters from his solicitors which he has submitted, are stamped "Censored". The Commission considers that this complaint also falls to be considered under Article 8 (Art. 8) of the Convention, which Article, insofar as relevant, reads as follows:         "1. Everyone has the right to respect for his private and family       life, ... 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 ... for the       prevention of disorder or crime, ... or for the protection of the       rights and freedoms of others."         Article 14 (Art. 14), insofar as relevant, reads as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       ..."         The Commission is not required to decide whether or not the facts alleged by the applicant, in respect of these complaints, disclose any appearance of a violation of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.         In this respect, the Commission notes that the Supreme Court considered that the applicant's request for an escorted visit fell within the scope of Section 2 of the Criminal Justice Act 1960 and Rule 3 of the Prisoners (Temporary Release) Rules 1960 (S.I. No. 167 of 1960) and further that a refusal of such a visit was exclusively a matter within the Minister's discretion. The Commission further notes that all correspondence to and from a prisoner must be opened and read pursuant to section 63 of the 1947 Rules and that the suppression and censorship of correspondence is also foreseen by that Rule.         Accordingly, insofar as the applicant challenges the refusal of temporary release and the interference with his correspondence falling within the scope of the relevant applicable domestic rules, the Commission recalls that in a legal system which provides constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation (No. 18670/91, Dec. 1.12.93, unpublished). In this respect, it is recalled that a declaratory action before the High Court, with a possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights (No. 15141/89, Dec. 15.2.90, D.R. 64, p. 203; No. 23156/94, Dec. 31.8.94, unpublished and No. 28154/95, Dec. 2.7.97, unpublished).         In the present case, the Commission notes that the applicant has taken no declaratory action by way of Plenary Summons joining the Attorney General claiming that the refusal of escorted visits in his circumstances and that interferences with his correspondence pursuant to Rule 63 of the 1947 Rules violate his constitutional rights.         As to the effectiveness of the proposed constitutional action as regards interference with correspondence, the Commission notes the judgment of the High Court in the Kearney case. However, the Commission also notes that the Supreme Court did not pronounce on the issue in that case and has not yet ruled on the constitutionality of Rule 63 of the 1947 Rules. It is further noted that the Kearney judgment was handed down more than 12 years ago. Furthermore, the Hutchinson and Holland judgments of the Supreme Court (16 October 1992 and 9 July 1993, respectively) were proceedings for judicial review. Accordingly, any observations of the Supreme Court on the constitutionality of Rule 63 of the 1947 Rules in those judicial review cases would have been obiter dicta and would not, therefore, be binding on any subsequent Supreme Court before which the constitutionality of Rule 63 was raised in properly constituted constitutional proceedings.         Moreover, while the Irish courts cannot directly apply the judgments of the European Court of Human Rights since the Convention has not been incorporated into domestic law, the Commission notes the reference to certain case-law of that Court in the High Court judgment in the Kearney case. In this respect, the Commission recalls that since that judgment there have been further developments in the jurisprudence under the Convention and refers, in particular, to the Campbell judgment decided six years after the Kearney case (Eur. Court HR, Campbell v. the United Kingdom judgment, loc. cit.) and specifically to paragraphs 44-54 thereof.         Insofar as the applicant alleges interferences with his correspondence which were not authorised by Rule 63 of the 1947 Rules, the Commission observes that judicial review proceedings were available to him to challenge such interferences and, insofar as reasons were not given for stopping or censoring correspondence, to obtain such reasons (Hutchinson v. the Department of Justice and the Governor of Mountjoy Prison, loc. cit.). The applicant has not issued any such proceedings.         It is true that in carrying out their obligations under Rule 63 of the 1947 Rules, the prison authorities have access to prisoners' legal correspondence. However, in view of the purpose of constitutional proceedings and since the nature of those proceedings would lead to submissions of a mainly legal character, the Commission does not consider that the fact that the authorities have access to his legal correspondence would render a constitutional action ineffective. As to whether the judicial review proceedings could be considered ineffective for the same reason, the Commission notes the successful judicial review proceedings of Mr. Holland outlined above (judgment of the Supreme Court of 9 July 1993) in a case where the authorities similarly had access to Mr. Holland's legal correspondence (No. 24827/94, Dec.14.4.98, not yet published).         Moreover, the Commission does not consider that there exist any special circumstances in the present case which would, in accordance with the generally recognised rules of international law, absolve the applicant from the obligation to exhaust a domestic remedy (No. 14556/89, Dec. 5.3.91, D.R. 69, p. 261). The present case can be distinguished from the O'Reilly case against Ireland (No. 24196/94, Dec. 22.1.96, D.R. 84-A, p. 72), the O'Reilly case concerning a complaint under Article 5 para. 5 (Art. 5-5) and a choice which Mrs O'Reilly "reasonably" made between different domestic remedies open to her.         Accordingly, the Commission considers that the applicant's complaints as regards the refusal of an escorted visit outside of the prison to see his mother together with his complaint in relation to interferences with his correspondence are inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention on grounds of non- exhaustion of domestic remedies as required by Article 26 (Art. 26) of the Convention.   2.     The applicant also complains that a "tribunal" complying with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention should have decided the question of his visit entitlements. He also submits that he should have had legal aid for applications as regards visit entitlements.         Article 6 para. 1 (Art. 6-1), insofar as relevant, reads as follows:         "1. In the determination of his civil rights ... or of any       criminal charge against him, everyone is entitled to a fair and       public hearing within a reasonable time by an independent and       impartial tribunal established by law. ..."         The Commission considers, as did the domestic court, that the applicant's request for an escorted visit amounted to a request for temporary release.         However, the Commission recalls its constant case-law according to which proceedings concerning the execution of a sentence imposed by a competent court, including proceedings on the grant of conditional release, do not fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention. They concern neither the determination of "a criminal charge" nor the determination of "civil rights and obligations" within the meaning of this provision (see, for example, No. 16266/90, Dec. 7.5.90, D.R. 65, p. 337). Even assuming that for the purposes of this complaint the applicant's allegations as regards the Special Criminal Court (made in relation to the proceedings before that court and outlined below) can be considered in this context, bearing in mind the date of his trial and of the introduction of his application, the Commission considers that the applicant has not demonstrated that the Special Criminal Court constituted anything other than a competent court for these purposes (No. 8299/78, Dec. 10.10.80, D.R. 22, p. 51 and No. 12839/87, Dec. 9.12.88, D.R. 59, p. 212).         The Commission therefore finds that these complaints do not fall within the ambit of Article 6 para. 1 (Art. 6-1) and they must be rejected, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention, as incompatible ratione materiae with the provisions of the Convention.   3.     The applicant alleges that he was beaten on arrest in June 1985 and immediately thereafter. He alleges that a policeman tried to murder him in hospital when recovering from those injuries earlier inflicted by the police. The applicant also makes a number of vague and general allegations as regards the conduct of his trial - he submits that his trial was a farce, that fabricated statements formed the basis of his conviction, that his lawyers were part of the conspiracy and that he was framed. He also submits that the Special Criminal Court before which he was convicted is "not a real court" and that it was set up to "smash republicanism".         The Commission notes that the applicant did not apply for leave to appeal against his conviction until 1991. It further notes that the applicant has submitted material to the Commission relating to the consideration of further appeal proceedings after 1991 and that the applicant submits that he has not been able to pursue a further appeal application due to the authorities' failure to provide access to certain relevant documents.         However, even assuming that the applicant had no effective domestic remedy to exhaust as regards the alleged assaults and his trial, the Commission considers that these complaints have been introduced outside the six-month time-limit set down by Article 26 (Art. 26) of the Convention since the applicant refers to the assaults and his trial as having taken place in 1985 and his application was not introduced before the Commission until September 1993.         Accordingly, the Commission considers that these complaints are inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.         M.F. BUQUICCHIO                           M.P. PELLONPÄÄ          Secretary                                 President    to the First Chamber                      of the First Chamber