Application No. 12395/86

by Peter CHESTER

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 17 May 1990)

                        TABLE OF CONTENTS

                                                               Pages

I.      INTRODUCTION

        (paras. 1 - 14) ......................................  1-3

        A.  The application

            (paras. 2 - 4) ...................................   1

        B.  The proceedings

            (paras. 5 - 9) ...................................  1-2

        C.  The present Report

            (paras. 10 - 14) .................................  2-3

II.     ESTABLISHMENT OF THE FACTS

        (paras. 15 - 35) .....................................  4-8

        A.  The particular circumstances of the case

            (paras. 15 - 32) .................................  4-7

            a)  The simultaneous ventilation rule

                (paras. 15 - 17) .............................  4-5

            b)  Letter quotas

                (paras. 18 - 20) .............................   5

            c)  The simultaneous ventilation rule: lawyers

                (para. 21) ...................................   5

            d)  Christmas card quotas

                (paras. 22 - 24) .............................   6

            e)  Correspondance with other prisoners

                (paras. 25 - 29) .............................  6-7

            f)  Further examples of letter quota restrictions

                (paras. 30 - 32) .............................   7

        B.  The relevant domestic law and practice

            (paras. 33 - 35) .................................  7-8

III.    OPINION OF THE COMMISSION

        (paras. 36 - 67) .....................................  9-15

        A.  Points at issue

            (para. 36) .......................................   9

        B.  As regards Article 8 of the Convention

            (paras. 37 - 61) .................................  9-14

            a)  Interference under Article 8 para. 1

                of the Convention

                (paras. 39 - 40) .............................   10

            b)  Justification under Article 8 para. 2

                of the Convention

                (paras. 41 - 61) ............................. 10-14

                aa)  "in accordance with the law"

                     (paras. 42 - 44) ........................ 10-11

                bb)  "necessary in a democratic society"

                     (paras. 45 - 61) ........................ 11-14

                     (i)    The simultaneous ventilation rule

                            (paras. 47 - 51) .................   12

                            Conclusions

                            (paras. 50 - 51) .................   12

                     (ii)   Letter and card quotas

                            (paras. 52 - 58) ................. 12-13

                            Conclusions

                            (paras. 56 - 58) .................   13

                     (iii)  Correspondence with other prisoners

                            (paras. 59 - 61) .................   14

                            Conclusion

                            (para. 61) .......................   14

        C.  Recapitulation

            (paras. 62 - 67) .................................  14-15

Partly dissenting opinion of Mr.  Trechsel ....................   16

Partly dissenting opinion of Mr.  Rozakis,

joined by Mr.  Vandenberghe ...................................   17

APPENDIX I  : History of the proceedings

              before the Commission ..........................  18-19

APPENDIX II : Decision of the Commission

              on the admissibility of the application ........  20-30

I.      INTRODUCTION

1.      The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.      The application

2.      The application is brought by Mr.  Peter Chester, a United

Kingdom citizen, born in 1954.  At the time of lodging the application

he was detained at H. M. Prison Frankland, Durham.  He is at present

detained at H. M. Prison Greetwell Road, Lincoln.  He is serving a

sentence of life imprisonment.  The applicant was unrepresented before

the Commission, apart from a brief period in 1988 when he was

represented by Messrs.  Catterall, Pell & Moxon, solicitors, Wakefield,

and similarly in 1989 by Messrs.  Andrew & Co., solicitors, Lincoln.

3.      The application is directed against the United Kingdom.  The

respondent Government were represented by their Agent, Mr.  Michael

Wood, of the Foreign and Commonwealth Office.

4.      The application concerns the censorship of the applicant's

correspondence in prison, including limitations on the numbers of

letters and Christmas cards which the applicant was allowed to send.

It raises issues under Article 8 of the Convention.

B.      The proceedings

5.      The application was introduced on 10 March 1986 and registered

on 19 September 1986.

6.      On 13 May 1987, after making a preliminary examination of the

case, the Rapporteur requested the Government, pursuant to Rule 40

para. 2 (a) of the Commission's Rules of Procedure, to provide

information regarding the censorship practices and incidents described

by the applicant.  Information was provided by the Government on

3 July 1987, to which the applicant replied on 3 August 1987.

7.      On 3 May 1988 the Commission examined the admissibility of the

application.  It decided to give notice of the case to the respondent

Government, pursuant to Rule 42 para. 2 (b) of the Rules of Procedure,

and to invite the parties to submit their observations on the

admissibility and merits of the application.  The Government submitted

their observations on 18 July 1988.  The applicant was invited to

submit his reply to those observations before 16 September 1988.  This

time limit was suspended pending the applicant's legal aid application

to the Commission and the instruction of solicitors.  The solicitors

appointed by the applicant, Messrs.  Catterall, Pell & Moxon, informed

the Commission on 5 January 1989 that the applicant had withdrawn his

instructions.  The applicant was then invited to submit his

observations before 17 March 1989.  They were submitted on 20 February

1989.

8.      On 10 July 1989 the Commission declared the application

partially admissible in respect of the applicant's complaints

concerning the simultaneous ventilation rule, mail quotas and

correspondence with a fellow prisoner.  The remainder of the

application was declared inadmissible.  On 22 August 1989 the parties

were sent the text of the Commission's decision on admissibility and

they were invited to submit any written conclusions on the merits of

the case which they had.  The Government were also requested to

provide further information concerning the applicant's correspondence

with a fellow prisoner.  The Government submitted their reply to this

invitation on 6 November 1989.  The applicant commented on the

Government's further observations on 18 November 1989.

9.      After declaring the case partially admissible the Commission,

acting in accordance with Article 28 para. 1 (b) of the Convention,

also placed itself at the disposal of the parties with a view to

securing a friendly settlement.  In the light of the parties'

reactions the Commission now finds that there is no basis on which

such a settlement can be effected.

C.      The present Report

10.     The present Report has been drawn up by the Commission in

pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes, the following members being present:

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H. DANELIUS

                     G. BATLINER

                     J. CAMPINOS

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

11.     The text of this Report was adopted by the Commission on

17 May 1990 and is now transmitted to the Committee of Ministers of

the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

12.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

        1)   to establish the facts, and

        2)   to state an opinion as to whether the facts found

             disclose a breach by the State concerned of its

             obligations under the Convention.

13.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

14.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.     ESTABLISHMENT OF THE FACTS

A.      The particular circumstances of the case

        a)  The simultaneous ventilation rule

15.     On 6 March 1986, whilst the applicant was detained in H. M.

Prison Parkhurst, he was involved in certain disturbances and placed

in the punishment block of the prison.  Following these disturbances

he was allowed to write to his Member of Parliament, but a letter

dated 9 March 1986 to Mr.  D. Speakman was stopped because it contained

complaints which had not been put to the prison Governor or the

Secretary of State.  He was given an opportunity to rewrite the letter

omitting the offending passages.

16.     The Government informed the Commission that, for the

protection of prison staff, prisoners were generally required to air

any complaints about prison treatment or staff misconduct through

internal channels before or at the same time as they complained

externally.  (This restriction, known as the simultaneous ventilation

rule, did not apply to correspondence with solicitors at the material

time and has since been abolished altogether.)  The prescribed

procedures were set out in Standing Order 5B, which is published and

available to inmates.  Standing Order 5B 34(j) prohibited

correspondence containing certain types of complaint:

        "Complaints about prison treatment which the inmate has not

        yet raised through the prescribed procedures unless the

        complaints are about a matter already decided at region

        headquarters or the complaints are about a matter which

        does not require investigation or on which no corrective

        or remedial action is possible, such as complaints of a

        general nature about conditions, e.g. about overcrowding

        or poor facilities, which are basically descriptive of

        the conditions the inmate is experiencing and his feelings

        about them.  As soon as a complaint about prison treatment

        has been made through the prescribed procedures it may be

        mentioned in correspondence.  The prescribed procedures are:

        i.   with respect to an adjudication, by petition to the

        Secretary of State;

        ii.  with respect to an allegation of misconduct or

        impropriety by a member of staff, in writing to the

        Governor, or by petition to the Secretary of State;

        iii. in relation to any other matter, by petition to the

        Secretary of State or by application to the Board of

        Visitors or by application to a visiting officer of the

        Secretary of State.

        Statements about prison treatment are not treated as

        complaints when they are matters of fact e.g. that an inmate

        has suffered injury, or that he has been punished for an

        offence against prison discipline, or that he is in the

        process of making a complaint through the proper channels."

17.     Records at Parkhurst Prison showed that the applicant's letter

of 6 March to Mr.  Speakman was stopped because it contained

allegations of incompetence on the part of senior management at that

prison.  It was posted two days later on 11 March 1986 as soon as the

applicant petitioned the Secretary of State in accordance with

Standing Order 5B 34j(ii).  The applicant claimed that his letter

contained factual statements and not allegations of staff misconduct.

        b)  Letter quotas

18.     The applicant was then transferred to H.M. Prison Frankland in

April 1986.  There restrictions were placed on the number of letters

he could write, whereas he had corresponded without such restrictions

at Parkhurst.  He complained to the Home Office about the disparity in

prison censorship practices.  The Secretary of State refused to take

any action regarding this complaint (petition reply dated 22 July

1986).

19.     A prisoner's entitlement to letters is set out in Standing

Order 5B 7 and is applicable to all prisons in England and Wales:

        "(1)  All convicted prisoners are entitled under Prison Rule

        34 to one statutory letter a week on which postage is paid

        at public expense....

        (3)   .... inmates may send, in addition to the statutory

        letter at public expense, at least one letter a week on

        which postage is paid from earnings.  The Governor should

        allow additional letters paid from earnings so far as is

        practicable, taking into account the need to examine and

        read correspondence and the staff resources available.

        Inmates are generally allowed to receive as many letters

        as they are allowed to send."

20.     The number of letters allowed varies according to the

establishment, and is at the discretion of the prison Governor.  Over

12 million incoming and outgoing letters are handled by the prison

authorities of England and Wales annually.  At Frankland Prison a

prisoner's allowance is normally three per week, over and above the

weekly statutory letter at public expense, although more may be

permitted in exceptional cases.  During the period covered by this

application, namely from 7 March 1986 until 1 October 1987, the

applicant wrote over 600 letters which were sent out, an average of

just over 8 per week.  Some weeks he sent out over 30 letters.

        c)  The simultaneous ventilation rule: lawyers

21.     On 22 July 1986 a letter of complaint to the applicant's

solicitor was stopped for failing to put the complaint before the

Governor, even though the applicant claimed to have done so.  The

applicant petitioned the Home Office about the stopping of the letter.

The Secretary of State rejected the complaint on 15 December 1986 on

the grounds that the letter had been correctly stopped under Rule 37

(A) of the Prison Rules 1964.  On 3 July 1987 the Government informed

the Commission that this letter had in fact been stopped in error and

an apology had now been made to the applicant (cf. para. 16 above).

        d)  Christmas card quotas

22.     The applicant alleged that Circular Instruction 63/66

unjustifiably limits prisoners' purchase and use of cards, e.g. only

24 cards may be sent or handed out at Christmas.  The use of circular

instructions denies prisoners necessary information as to censorship

practices.

23.     The Government responded to this allegation that the number of

Christmas cards prisoners may send is set out in Standing Order 5B 13,

which provides that:

        "At Christmas a convicted inmate will be allowed to send an

        additional letter to be paid for from his prison earnings;

        and the Governor has discretion to allow more....

        In addition up to 12 cards with stamps may be bought from

        the prison canteen out of prison earnings or private cash."

24.     In recognition of the special needs of long-term prisoners as

many as 24 cards may be sent by inmates in certain prisons, including

Frankland.  The restriction on the number of cards which may be sent

is necessary to avoid placing too great a burden on the censor's

offices.  Inmates are only allowed to send cards bought in the prison

canteen - which may include charity cards - to avoid the necessity of

searching each one.  The applicant was allowed to send Christmas cards

in accordance with the aforementioned guidelines.

        e)  Correspondence with other prisoners

25.     The applicant alleged that correspondence with a fellow inmate

at Frankland Prison had been stopped.  The censorship was upheld by

the Secretary of State (petition reply 17 December 1986).

26.     The Government acknowledged that, whilst the applicant was

removed from association with other inmates for reasons of good order

and discipline, pursuant to Rule 43 of the Prison Rules 1964, as

amended, correspondence with a fellow inmate was prohibited.

27.     Standing Order 5B 26 deals with correspondence between

prisoners:

        "Correspondence with another convicted inmate requires the

        approval of both Governors, except where the inmates are

        close relatives as described in Standing Order 5B 28 below

        or where they were co-defendants at their trial and the

        correspondence relates to their conviction or sentence.

        Subject to the provisions of Orders 5B 24-30 approval

        should be given unless there is reason to believe that such

        correspondence will seriously impede the rehabilitation

        of either, or where it would be desirable, in the interests

        of security or good order and discipline, that the inmates

        should be separated from each other, or prevented from

        communicating with each other."

28.     In exercise of the discretion conferred by this guideline, the

Governor of Frankland Prison took the view that correspondence between

the applicant and the other prisoner was not conducive to the good

order and discipline of the establishment whilst the former was

removed from association.  For this reason, after an exchange of

letters between the two prisoners about a forthcoming adjudication,

the Governor decided that correspondence between them should be

stopped until the applicant returned to normal location.

29.     The applicant stated that at the relevant time he had refused

to leave the segregation unit after serving a disciplinary punishment

and, therefore, the "good order and discipline" rule was applied to

him to justify his continued presence there.  However he claimed that

there were no reasons of good order and discipline to stop his

correspondence with the other prisoner as their correspondence was on

purely personal matters.

        f)  Further examples of letter quota restrictions

30.     The applicant was then transferred to H.M. Prison Long Lartin.

There certain of his letters were held up:  The first was dated

12 March 1987 and was addressed to the Clerk of Public Petitions,

House of Commons.  (Public petitions may be put orally or in writing

by a Member of Parliament before the House of Commons, whereupon the

competent Government minister may enter a reply to the problem

raised.)  The second and third letters which were delayed were dated

16 March 1987 and addressed respectively to Mrs.  T. Bailey and the

Reverend B. Greenaway.

31.     According to the Government these letters were held up

pursuant to Standing Order 5B 7 (para. 19 above).  At Long Lartin

Prison this Standing Order concerning letter quotas is enforced by

issuing prisoners with standard prison letter forms.  Where a letter

is not written on such official paper, it must be submitted for

posting with a postal authority slip so that the number of letters

sent can be recorded.  These slips are available from the prison

censor's office.  The three letters were stopped because they were not

accompanied by such slips, which the applicant subsequently obtained.

The letters were then sent in their original form.

32.     The applicant was then transferred to H.M. Prison Wakefield.

From there a letter (on or about 8 September 1987) to Mrs.  S.

Rutkowski and a letter dated 1 October 1987 to the Rt.  Hon.  Tony Benn,

MP, were stopped because the applicant had exceeded his letter

allowance, contrary to Standing Order 5B 7.  He had already written

four outgoing letters during each of the weeks in question.

B.      The relevant domestic law and practice

33.     By virtue of the Prison Act 1952 the Home Secretary is

responsible for prisoners and may make rules "for the regulation and

management of prisons ... and for the classification, treatment,

employment, discipline and control of persons required to be detained

therein" (Section 47 (1) Prison Act 1952).  Such rules are contained

in statutory instruments laid before Parliament, presently the Prison

Rules 1964, as amended.

34.     Rule 33 (1) of those Rules states the Home Secretary's

discretion to control prisoners' communications, either generally or

in a particular case, for the maintenance of discipline and good

order, the prevention of crime or the protection of the interests of

any person.  It is only with the Home Secretary's leave that a

prisoner may communicate with the outside world, the prison Governor

or authorised prison officer having the power to examine

correspondence and stop any which is "objectionable" (Rule 33 (2) and

(3)).  Rule 34 (2) entitles a convicted prisoner "to send and receive

a letter on his reception to prison and thereafter once a week".  Rule

34 (3) enables the prison Governor to "allow a prisoner an additional

letter ... where necessary for his welfare or that of his family".

Rule 34 (7) enables the Secretary of State to "allow additional

letters ... in relation to any prisoner or class of prisoners".  Rule

34 (8) prohibits communications "with any person in connection with

any legal or other business, or with any person other than a relative

or friend, except with the leave of the Secretary of State".  This is

attenuated in respect of legal letters by Rule 37 A which provides

that correspondence between a solicitor and a prisoner who is a party

to legal proceedings should not usually be read or stopped unless the

prison Governor has reason to suppose that any such correspondence

contains material unrelated to the proceedings.

35.     With a view to securing uniformity of practice throughout

prison establishments, the Secretary of State also issues to prison

Governors management guidelines in the form of Standing Orders or

Circular Instructions.  The Standing Orders on censorship of

prisoners' correspondence are public (since December 1981) and

prisoners are provided with information about them.  At the material

time, the Standing Orders further delimited prisoners' rights to

correspond, the following examples being relevant to the present case:

        -  the obligation to comply with the simultaneous

           ventilation rule (Standing Order 5B 34(j),

           para. 16 above);

        -  letter and card quotas (Standing Order 5B 7 and 13,

           paras. 19 and 23 above);

        -  a closer control of letters between prisoners

           (Standing Order 5B 26, para. 27 above).

III.    OPINION OF THE COMMISSION

A.      Points at issue

36.     The points at issue in the present application are whether, in

several instances, there has been an unjustified interference by

prison authorities with the applicant's right to respect for

correspondence ensured by Article 8 (Art. 8) of the Convention, in

particular as regards the following aspects of the case:

     -  the stopping of a letter dated 9 March 1986 to Mr.  D.

        Speakman, the applicant not having observed the

        simultaneous ventilation rule;

     -  the stopping of a letter dated 22 July 1986 to the

        applicant's solicitor, the simultaneous ventilation

        rule again not having been observed;

     -  the imposition of letter and Christmas card quota

        restrictions, the former restriction including the delay

        in posting a letter dated 12 March 1987 to the Clerk of

        Public Petitions, House of Commons, and the stopping of

        a letter dated 1 October 1987 to the Rt. Hon. Tony Benn, MP;

     -  the interruption of the applicant's correspondence with a

        fellow prisoner for a period when the applicant was in the

        segregation unit at H.M. Prison Frankland.

B.      As regards Article 8 (Art. 8) of the Convention

37.     For the present case the relevant part of Article 8 (Art. 8)

of the Convention is as follows:

        "1.  Everyone has the right to respect for .... 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 ...."

38.     The applicant contended that the interference with his

correspondence was neither in accordance with the law nor necessary in

a democratic society for the prevention of disorder or crime, within

the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.  The

Government conceded an interference with the applicant's right to

respect for correspondence in certain instances, such as the stopping

or delaying of certain letters in excess of the applicant's weekly

letter allowance, but contended that the interference was in

accordance with the law and necessary for the prevention of disorder

or crime. Insofar as errors were committed by the prison

administration, as with the mistaken censorship of the applicant's

letter of 22 July 1986 to his solicitor (para. 21 above), the

Government have offered an apology.

        a)  Interference under Article 8 para. 1 (Art. 8-1) of the Convention

39.     The Commission refers to its constant case-law that a prisoner

has the same right as a person at liberty to respect for his

correspondence, the ordinary and reasonable requirements of

imprisonment being of relevance in assessing the justification for any

interference with that right under the exceptions permitted by Article

8 para. 2 (Art. 8-2) of the Convention.  Any stopping, reading,

screening or delay of prisoners' correspondence by prison authorities,

in principle, constitutes an interference with prisoners' right to

respect for correspondence (Silver and Others v. the United Kingdom,

Comm.  Report 11.10.80, Eur. Court H.R., Series B no. 51, paras

269-271 and 423-426).

40.     The Commission found in its decision on admissibility of

10 July 1989 in the present case (Annex II p. 15 below) that there had

been an interference by the prison authorities with the applicant's

right to respect for correspondence as follows:

-       insofar as his letters dated 9 March 1986 to Mr.  Speakman

(para. 15 above) and dated 22 July 1986 to his solicitor (para. 21

above) were respectively delayed and stopped for failing to observe

the simultaneous ventilation rule;

-       insofar as three of the applicant's letters were delayed and

two stopped for exceeding the weekly letter quota (delayed letters

dated 12 March 1987 to the Clerk of Public Petitions, 16 March 1987 to

Mrs.  T. Bailey, 16 March 1987 to the Rev.  B. Greenaway, and stopped

letters dated 8 September 1987 to Mrs.  S. Rutkowski and 1 October 1987

to the Rt.  Hon.  Tony Benn, MP - cf. paras. 30-32 above);

-       generally insofar as a weekly letter quota (para. 18 above)

and a Christmas card quota (para. 22 above) were imposed on the

applicant; and

-       insofar as there was a prohibition on the applicant's

correspondence with a fellow inmate during the applicant's placement

in the segregation unit at H.M. Prison Frankland (para. 25 above).

        b)  Justification under Article 8 para. 2 (Art. 8-2) of the

Convention

41.     The Commission must now proceed to examine firstly whether

this interference, established under Article 8 para. 1 (Art. 8-1) of the

Convention, was in accordance with the law, and, secondly, whether it

was necessary for one or more of the reasons specified in Article 8

para. 2 (Art. 8-2).

            aa)  "in accordance with the law"

42.     The Commission has had occasion in several cases concerning

British prisoners to analyse whether the Prison Rules, supplemented by

Standing Orders and applied to censor correspondence, are in

accordance with the law within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.  The Commission has found that, in

principle, where censorship is specifically provided for in the Prison

Rules 1964, as amended, or may be said to flow clearly from the

Secretary of State's powers under Rule 33 (1) of those Rules "with a

view to securing good order and discipline", such restrictions are in

accordance with the law within the meaning of Article 8 para. 2

(Art. 8-2) aforementioned Silver and Others Report paras. 281-285,

336-338, 376-377).  Furthermore, whilst Standing Order 5 on the

censorship of correspondence does not have the force of law, it has

been made public and is available to prisoners.  In the Commission's

opinion, the censorship practices contained in that Order and grounded

in the legal authority of Rules 33, 34 or 37 of the Prison Rules, in

principle, satisfy the requirements of the rule of law (accessibility

and foreseeability), embodied in the phrase "in accordance with the

law" in Article 8 para. 2 (Art. 8-2)( cf. Grace v. the United Kingdom,

Comm. Report 15.12.88, para. 86).

43.     The Commission notes that the restrictions imposed on the

applicant's correspondence concerned the simultaneous ventilation rule

(Standing Order 5B 34(j) - para. 16 above), letter and card quotas

(Standing Orders 5B 7 and 13 - paras. 19 and 23 above), and controls

on correspondence between prisoners (Standing Order 5B 26 - para. 27

above).  The Commission has previously accepted that the simultaneous

ventilation rule and the control of correspondence between prisoners,

since reforms in December 1981, may be said to be in accordance with

the law pursuant to Article 8 para. 2 (Art. 8-2) of the Convention, these

restrictions being anchored in the Secretary of State's powers under

Rules 33 (1) and 34 (8) of the Prison Rules 1964 (the aforementioned

Grace Report paras. 93 and 95).  Accordingly, the interference with

the applicant's correspondence based on such limitations may also be

said to be in accordance with the law within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

44.     As regards letter and card quotas, the Commission observes

that the Prison Rules are more restrictive than Standing Orders 5B 7

and 13, only one letter a week being envisaged by Rule 34 (2).  Rules

34 (3) and (7) afford a discretion to prison Governors and the

Secretary of State to allow more.  The fact that the Secretary of

State has exercised his discretion through the Standing Order to

authorise at least one other weekly letter and from 12 to 24 Christmas

cards (postage to be paid by the prisoner) may be said to be based on

his powers under Rule 34 (7) of the Prison Rules.  Accordingly the

Commission finds that the interference with the applicant's

correspondence for exceeding correspondence quotas was in accordance

with the law within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

            bb)  "necessary in a democratic society"

45.     The Commission now turns to the question whether the

interference with the applicant's right to respect for correspondence

was necessary under Article 8 para. 2 (Art. 8-2) of the Convention.  The

principal justification that can be put forward for the censorship of

prisoners' correspondence is the prevention of disorder or crime, with

a balance being struck between the legitimate interests of public

order and security and that of the rehabilitation of prisoners

(aforementioned Silver and Others Report, paras. 289-290).  Moreover,

the Court has confirmed that, in assessing whether an interference

with a prisoner's right to respect for correspondence was necessary

under Article 8 para. 2 (Art. 8-2) of the Convention, regard must be

paid to the ordinary and reasonable requirements of imprisonment,

for some measure of control over prisoners' correspondence will be

called for and is not of itself incompatible with the Convention (Eur.

Court H.R., judgment of Silver and Others of 25 March 1983, Series A

no. 61, para. 98).

46.     The Commission will examine the necessity of the various

interferences with correspondence of which the applicant has

complained in the light of these considerations.

            (i)  The simultaneous ventilation rule

47.     Two of the applicant's letters were stopped because they

contained complaints which had not been put at the same time to the

prison Governor or the Secretary of State, contrary to Standing Order

5B 34(j).  The first letter dated 9 March 1986 was addressed to Mr.  D.

Speakman (para. 15 above), the second letter dated 22 July 1986 was

addressed to the applicant's solicitor.  Nearly a year later the

Government apologised to the applicant for an error in having stopped

the second letter (para. 21 above).

48.     The Commission refers to the case of Grace v. the United

Kingdom (Comm.  Report 15.12.88, paras. 93-94) in which it found that

the simultaneous ventilation rule may in certain circumstances be

necessary in a democratic society for the prevention of disorder in

respect of prisoners' general correspondence, with the exception of

prisoners' correspondence with lawyers:

        "Whilst recognising the importance of a system of internal

        inquiry into prisoners' complaints about their treatment

        or conditions in prison, the Commission confirms its

        opinion in the case of Silver and Others that prisoners'

        correspondence with lawyers is of a privileged nature

        and, in principle, should be unhindered."

49.     The Commission finds no factual elements in the present case

to detract from these considerations.  Accordingly it is of the

opinion that the stopping of the letter to Mr.  Speakman was

justifiable as "necessary in a democratic society ... for the

prevention of disorder", within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention, whereas the stopping of the applicant's

letter to his solicitor was not necessary.  As regards the latter, the

Commission welcomes the Government's apology to the applicant, but

this cannot preclude the Commission expressing an opinion as to

whether or not there has been a violation of the Convention in respect

of the censorship of the letter in view of the lateness of the apology

which provided no practical remedy for the applicant.

        Conclusions

50.     The Commission concludes, by 18 votes to one, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's stopped letter dated 9 March 1986 to Mr. D. Speakman.

51.     The Commission concludes, by a unanimous vote, that there has

been a violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's stopped letter dated 22 July 1986 to his solicitor.

            (ii)  Letter and card quotas

52.     Letter and Christmas card quotas, embodied in Standing Orders

5B 7 and 13, restricted the amount of correspondence the applicant

could issue.  As a result of the letter quota three of the applicant's

letters were delayed in March 1987 to ensure the applicant's

compliance with the administrative procedures controlling the number

of letters sent (paras. 30 and 31 above).  Thereafter two of the

applicant's letters were stopped in September/October 1987 for

exceeding his letter allowance as he had already sent out four letters

during each of the weeks in question (para. 32 above).

53.     The Commission accepts that some limitations on the number of

letters sent by prisoners may be necessary in a democratic society for

the prevention of disorder or crime if some meaningful control of

possible escape plans and the like in prisoners' correspondence is to

be maintained.  This is particularly so in the case of prisoners like

the applicant serving long terms of imprisonment who, on the one hand,

may have stronger motives to seek escape or otherwise break Prison

Rules.  On the other hand, such prisoners need effective safety

valves, such as regular contacts with their families and the outside

world, in order to maintain the hope of returning to a normal life one

day.

54.     However, the Commission does not consider it necessary in the

present case to determine acceptable letter and card quotas for

different categories of prisoners because it is of the opinion that

such quotas have had little practical incidence on the applicant's

right to respect for correspondence.  It notes that during the period

covered by this application the applicant wrote over 600 letters which

were sent out, an average of just over eight per week.  Some weeks he

sent out over 30 letters (para. 20 above).  In these circumstances,

the Commission is of the opinion that the delay in posting three of

the applicant's letters one week in March 1987 and the stopping of two

letters in September and October 1987 for having exceeded letter

quotas was justifiable as "necessary in a democratic society ... for

the prevention of disorder", within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

55.     Insofar as the applicant was limited to sending 24 Christmas

cards (para. 22 above) the Commission considers that such a quota

cannot be said to be unreasonable.  Accordingly, it is of the opinion

that any restriction of the applicant's Christmas cards over and above

that quota was justifiable as "necessary in a democratic society ...

for the prevention of disorder", within the meaning of Article 8 para.

2 (Art. 8-2) of the Convention.

        Conclusions

56.     The Commission concludes, by 14 votes to five, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

imposition of letter and Christmas card quota restrictions on the

applicant's correspondence.

57.     The Commission concludes, by 12 votes to seven, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

delay in posting the applicant's letter dated 12 March 1987 to the

Clerk of Public Petitions.

58.     The Commission concludes, by 12 votes to seven, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's stopped letter dated 1 October 1987 to the Rt.  Hon.  Tony

Benn, MP.

            (iii)  Correspondence with other prisoners

59.     The applicant's correspondence with a fellow prisoner was

interrupted whilst he was removed from association with other

prisoners for reasons of good order and discipline (paras. 25, 26 and

28 above).  The Commission notes that this removal was precipitated by

the applicant's own refusal to leave the segregation unit after

serving a disciplinary punishment (para. 29 above).

60.     The Commission again refers to the case of Grace v. the United

Kingdom (Comm.  Report para. 95) in which it found that Standing Order

5B 26 (para. 27 above), generally permitting correspondence between

inmates unless the prison Governor considers such correspondence

disturbs good order or discipline, strikes the necessary balance

between the needs of prisoners and the prevention of disorder within

the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.  The

Commission finds no factual elements in the present case to detract

from this general consideration.  Accordingly it is of the opinion

that the interruption of correspondence between the applicant and a

fellow prisoner whilst the applicant was removed from association was

justifiable as "necessary in a democratic society ... for the

prevention of disorder", within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

        Conclusion

61.     The Commission concludes, by 14 votes to five, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

interruption of the applicant's correspondence with a fellow prisoner

for a certain period.

C.      Recapitulation

62.     The Commission concludes, by 18 votes to one, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's stopped letter dated 9 March 1986 to Mr.  D. Speakman

(para. 50 above).

63.     The Commission concludes, by a unanimous vote, that there has

been a violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's stopped letter dated 22 July 1986 to his solicitor (para.

51 above).

64.     The Commission concludes, by 14 votes to five, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

imposition of letter and Christmas card quota restrictions on the

applicant's correspondence (para. 56 above).

65.     The Commission concludes, by 12 votes to seven, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

delay in posting the applicant's letter dated 12 March 1987 to the

Clerk of Public Petitions (para. 57 above).

66.     The Commission concludes, by 12 votes to seven, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

applicant's stopped letter dated 1 October 1987 to the Rt. Hon. Tony

Benn, MP (para. 58 above).

67.     The Commission concludes, by 14 votes to five, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

interruption of the applicant's correspondence with a fellow prisoner

for a certain period (para. 61 above).

     Secretary to the Commission          President of the Commission

            (H.C. KRÜGER)                       (C.A. NØRGAARD)

                Partly dissenting opinion of Mr.  Trechsel

        On all the issues decided in the present case I have voted in

favour of finding a violation of the applicant's right to respect for

his correspondence, ensured by Article 8 of the Convention.

        In my view, the correspondence of prisoners may only be

stopped, exceptionally, in order to prevent crime or evasion.  It may

be inspected for ascertaining whether a reason for stopping exists.

Any other interference leads to a violation of Article 8 of the

Convention.

                Partly dissenting opinion of Mr. Rozakis,

                joined by Mr. Vandenberghe

        While I have voted in favor of a non-violation in respect of a

number of complaints by the applicant, I find myself unable to follow

the majority of the Commission in some others.  More particularly, I

would like to stress my disagreement with the position of the

Commission in two instances: the case of the delaying or stopping of

letters because of quotas imposed by the prison authorities and the

case of the stopping of a letter addressed to a Member of Parliament.

        Insofar as the letter quota is concerned, I am unable to

follow the reasoning of the Commission that limitations on the number

of letters sent by prisoners is necessary in a democratic society for

the prevention of disorder or crime.  Although I accept, with some

difficulty, the general proposition that the State and society at

large have an interest in controlling letters for this purpose, I

believe that this interest should not necessarily be served at the

expense of a protected human right, the right to correspondence.  In

balancing the interests of society and the protected right, one may go

as far as accepting some control of the content of letters, but that

control cannot be extended to the quantity of correspondence, which,

as such, is irrelevant to the aim purportedly pursued.  If the

authorities want to exercise some control - in the interests of

society - they should find means which do not further limit prisoners'

rights; and one obvious way of not further limiting them is to provide

prisons with the necessary staff and infrastructure to cope with the

needs of prisoners' correspondence.  The contrary practice of imposing

letter quotas on correspondence does seem not to serve the interests

of society or the fair balance between those interests and the human

right; rather it serves the convenience of the State and of the prison

authorities.

        Insofar as one of the applicant's letters to a parliamentarian

is concerned, I fail to see the grounds upon which a distinction has

been made in the prison regulations between other governmental

authorities (i.e. of the executive) and parliamentarians, who, to my

mind, are the most natural persons through whom protests against the

State may be channelled by its citizens.

Appendix I

HISTORY OF THE PROCEEDINGS

     Date                                  Item

________________________________________________________________

10.03.86                        Introduction of the application

19.09.86                        Registration of the application

Examination of admissibility

13.05.87                        Rapporteur's request for information

                                from the Government

03.07.87                        Information provided by the Government

03.08.87                        Applicant's comments on that

                                information

03.05.88                        Commission's deliberations and

                                decision to invite the parties to

                                submit their observations on the

                                admissibility and merits of the

                                application

18.07.88                        Government's observations

20.02.89                        Applicant's reply

10.07.89                        Commission's deliberations and

                                decisions to declare the application

                                partially admissible and partially

                                inadmissible and to invite the

                                Government to submit further

                                information about one aspect of the

                                case

Examination of the merits

06.11.89                        Information provided by Government

18.11.89                        Applicant's comments in reply

09.12.89                        Commission's consideration of state

                                of proceedings

08.05.90                        Commission's deliberations on the

                                merits and final votes

17.05.90                        Adoption of Report