Lexploria

Application No. 9511/81

Michael McCALLUM

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 4 May 1989)

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9511/81

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-18) ............................ 1-3

A. The application (paras. 2-4) ...................... 1

B. The proceedings (paras. 5-13) ..................... 1-2

C. The present Report (paras. 14-18) ................. 2-3

II. ESTABLISHMENT OF THE FACTS (paras. 19-26) ............. 4-6

A. The particular circumstances of the case

(paras. 19-23) .................................... 4-5

B. The relevant domestic law and practice

(paras. 24-26) .................................... 5-6

III. SUBMISSIONS OF THE PARTIES (paras. 27-41) ............. 7-9

A. The applicant (paras. 27-30) ...................... 7

B. The Government (paras. 31-41) ..................... 7-9

IV. OPINION OF THE COMMISSION (paras. 42-85) .............. 10-20

A. Points at issue (para. 42) ........................ 10

B. Article 8 of the Convention

(paras. 43-62) .................................... 10-14

General considerations (paras. 43-48) ............. 10-12

The present case (paras. 49-61) ................... 12-14

i) Letter of 5 October 1981

(paras. 52-53) ............................ 12

ii) Letter of 18 December 1981

(paras. 54-56) ............................ 12-13

iii) Letters of 20 February and 23 February 1982

(paras. 57-59) ............................ 13

iv) Letters of 4 June and 22 June 1982

(paras. 60-61) ............................ 13-14

Conclusion (para. 62) ............................. 14

C. Article 10 of the Convention

(para. 63) ........................................ 14

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9511/81

page

D. Article 13 of the Convention (paras. 64-84) ....... 15-19

General considerations (paras. 64-66) ............. 15-16

The present case (paras. 67-83) ................... 16-19

Conclusion (para. 84) ............................. 19

E. Recapitulation (para. 85) ......................... 19-20

Dissenting opinion of Mr. Danelius joined by MM. Jörundsson,

Vandenberghe, Sir Basil Hall and Mr. Martinez ................. 21

APPENDIX I History of the proceedings

before the Commission ......................... 22

APPENDIX II Partial Decision on the admissibility

of the application ............................ 23-39

APPENDIX III Final Decision on the admissibility

of the application ............................ 40-50

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 applicant is Michael McCallum, a British citizen, born in

1950 and resident in Helensburgh.

3. The applicant is represented before the Commission by McCann

Fordyce, solicitors practising in Helensburgh. The Government are

represented by their Agent, Mr. Michael Wood of the Foreign and

Commonwealth Office, London.

4. The case concerns the stopping by the prison authorities of

various letters written by the applicant when he was in prison and the

disciplinary award imposed on the applicant which included a 28 day

restriction of his right to correspond. The case also concerns the

applicant's complaints that he has no effective remedy in respect of

these matters or in respect of his complaints under Article 3 of the

Convention concerning conditions of detention in the Inverness

Segregation Unit. Issues accordingly arise under Articles 8 and 13 of

the Convention.

B. The proceedings

5. The application was introduced on 31 August 1981 and registered

on 16 September 1981.

6. On 4 October 1983, the Commission decided that notice of the

application should be given to the respondent Government, pursuant to

Rule 42 para. 2 (b) of the Commission's Rules of Procedure, and that

they should be invited to submit before 16 December 1983 their written

observations on the admissibility and merits of the applicant's

complaints under Articles 3 and 13.

7. The Government sent their written observations on 24 January

1984 after an extension in the time-limit and the applicant's

observations in reply were received on 24 April 1984 also after an

extension in the time-limit.

8. On 16 March 1984, the applicant was granted legal aid under

the Addendum to the Commission's Rules of Procedure.

9. The Commission considered the application again on 9 July 1984

and decided to adjourn its consideration of the applicant's complaints

under Articles 8, 10 and 13 of the Convention relating to interference

with his correspondence and remedies therefor, as well as the

complaint under Article 13 insofar as it related to his complaint

under Article 3 of the Convention. It declared the remainder of the

application inadmissible.

10. The Commission also requested supplementary observations on

the admissibility and merits of the adjourned complaints. The

observations of the respondent Government were submitted on 3 December

1984 and the applicant's observations in reply were submitted on

2 April 1985.

11. On 10 July 1985, the Commission declared the application

admissible as regards the applicant's complaints under Articles 8,

10 and 13 of the Convention and decided to adjourn the further

examination of the application pending its decision in the cases of

Boyle and Rice.

12. On 14 July 1986, the Commission decided to adjourn further

consideration of the merits pending the outcome of Boyle and Rice v.

the United Kingdom before the European Court of Human Rights.

13. Following the decision of the Court in Boyle and Rice on 27

April 1988 (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,

Series A no. 131), the parties were invited to submit any additional

observations on the merits of the application. The parties made no

further observations. The Commission, acting in accordance with

Article 28 para. b of the Convention, also placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. In the light of the parties' reactions, the Commission

now finds that there is no basis on which a friendly settlement can be

effected.

C. The present Report

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

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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

4 May 1989 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

16. 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.

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

the Commission is attached hereto as Appendix I. The Commission's

partial decision on the admissibility of the application is attached

as Appendix II, the Commission's final decision on the admissibility

of the application as Appendix III.

18. 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

19. On 11 March 1980, the applicant was convicted of assault and

robbery and sentenced to six years' imprisonment to run from 26 November

1979.

20. During two periods, from 22 November 1980 to 27 January 1981

and from 30 June 1981 to 15 October 1981, the applicant was detained

in solitary confinement in the Inverness Segregation Unit, a special

"control unit" introduced in 1965-1966 for the accommodation of

troublesome prisoners.

21. During 1981-1982, the applicant's correspondence was subject

to the following restrictions:

- Two letters dated 24 June 1981 to the applicant's solicitor

and to a Member of Parliament were stopped. The letter to

the solicitor was stopped in accordance with Standing Order

Ic 1(3)d which prohibits complaints concerning prison

treatment. The letter to the Member of Parliament was stopped

in accordance with Standing Order Ic 3(6)a on the ground that

it contained complaints about prison treatment which had not

been channelled through the appropriate procedure, namely a

petition to the Secretary of State or other official means.

- A letter of 5 October 1981 to the editor of the Daily Record

was stopped. It was considered by the prison authorities

not to conform to Standing Orders but there is no record of

the grounds for this view. In this letter, the applicant

requested that a copy of an article in the newspaper

concerning himself ("Cage Man Euro Court Plea") be sent to

him and also asked to be informed if two previous letters

had been received.

- A letter dated 18 December 1981 to the Procurator Fiscal was

stopped because it contained allegations of assault on other

prisoners. The letter was considered objectionable in terms

of Standing Order Ic 1(3)d as containing complaints of

prison treatment. Those prisoners had not themselves made

complaints through any channel, internal or external. It was

also considered that to allow letters complaining on behalf of

other prisoners would be contrary to good order and

discipline. The applicant was allowed to write another letter

containing allegations of assault concerning himself alone.

- A letter dated 19 January 1982 to Miss Hampson of Dundee

University was stopped on the grounds that she was not a

previous correspondent of the applicant, nor a legal adviser

for purposes of his petition to the Commission. Under

Standing Order Ic 4(12) correspondence with persons other

than existing friends and relations was at the discretion

of the Governor.

- Letters dated 20 and 23 February 1982 to the applicant's

representative Mr Godwin were delayed and eventually posted

on 18 March 1982. It was agreed that the applicant could

correspond with Mr Godwin in relation to his application to

the Commission pursuant to Standing Order Ic 3(10)(g)i, which

entitles prisoners to correspond with their legal advisers and

other persons in relation to the preparation of an application

to the Commission. This was done on the understanding that Mr

Godwin would abide by the Commission's rules of

confidentiality concerning applications. Some particulars of

the applicant's complaints had been published in the press and

the Scottish Home and Health Department had sought an

assurance from him that he would abide by the rules of

confidentiality.

- Copies of letters that had been written by Mr Godwin to

the Secretary of State (22 June 1982) and Mr Allan at the

Prison Service Headquaters (4 June 1982) were stopped from

being issued to the applicant under Standing Order Ic 4(12)b,

which gives the Governor a discretion to forbid letters on the

grounds of security or good order and discipline or in the

interests of the prevention or discouragement of crime. These

letters suggested that there had been a breakdown of

discipline on the part of the staff at Peterhead prison and

predicted there would be disturbances among prisoners. The

letter of 22 June 1982 implied that staff might have been

responsible for causing a fire in the applicant's cell. The

prison Governor considered these letters objectionable on the

grounds of good order and discipline in the prison. In

particular, it was feared that if they got into the hands of

prisoners they might be encouraged to make the disturbances

predicted in the letters.

22. On 22 December 1982, a disciplinary award was imposed on the

applicant by the Visiting Committee of Barlinnie Prison, which

included a 28 day restriction on the applicant's correspondence,

pursuant to Rule 74(2) of the Prison (Scotland) Rules 1952 which

provides that the intervals at which prisoners are allowed to write

and receive letters may be extended as punishment for misconduct. The

applicant complains that during this period he was refused permission

to write to the Commission, his Member of Parliament, a solicitor, the

Procurator Fiscal, the Scottish Council for Civil Liberties and the

Howard League for Penal Reform.

23. The applicant was released from prison on a date unspecified

in 1985.

B. The relevant domestic law

a) Prison rules

24. Rule 74(1)-(5) of the Prison (Scotland) Rules 1952 regulates

the right of prisoners to correspond with others and the censorship or

stoppage of such correspondence. The discretion of prison governors to

stop letters under this Rule was, at the material time, exercised in

accordance with administrative instructions of the Secretary of State

for Scotland contained in Standing Orders Ic 1 to Ic 4 of the Prisons

(Scotland) Standing Orders. Since 1 August 1983 the Standing Orders

have changed to take account of the Commission's Report and the

judgment of the Court in the case of Silver and Others. The new

regulations are now found in Section Ma of the Prison (Scotland)

Standing Orders.

25. The Prison (Scotland) Act 1952 and the Prison Rules apply to

the Inverness Unit as they apply to other prisons. Most provisions of

the Standing Orders also apply. Administrative instructions

particular to the unit are, however, set out in the Inverness Prison

Unit Regulations.

b) Channels of complaint

26. The following channels of complaint exist:

- The principal internal channel of complaint is to petition the

Secretary of State for Scotland in accordance with Rule 50(4) of the

Prison (Scotland) Rules 1952.

- A visiting committee set up by virtue of Section 7 of the 1952

Act is empowered to hear and investigate any application or complaint

made by prisoners.

- Section 15 of the 1952 Act provides that a Sheriff or Justice

of the Peace may visit any prison and may examine the condition of the

prison and of the prisoners. This means of complaint is seldom, if

ever, used.

- The Parliamentary Commissioner for Administration is empowered

to investigate complaints of maladministration made by prisoners.

- A prisoner detained in the Inverness Unit would have the

additional possibility of complaining to the Inverness Unit Review

Board. The purpose of the Board is to review the case of each

prisoner detained in the Unit and, if appropriate, to make

recommendations to the Secretary of State for the return of a prisoner

to a normal prison location.

- It would also have been open to a prisoner to direct a

complaint to the Standing Committee on Difficult Prisoners whose

purpose is to advise the Secretary of State for Scotland on the

allocation and management of difficult prisoners.

- The exercise by public authorities of statutory powers and

duties are reviewable in the courts. The operation of a statutory

power would be open to challenge on the grounds that it had been

exercised arbitrarily, unreasonably or for an improper purpose.

Insofar as the 1952 Act and the Rules made under it confer rights

on prisoners, such rights would be enforceable by an action for

Declarator.

III. SUBMISSIONS OF THE PARTIES

A. The applicant

27. The applicant complains that the restrictions on his

correspondence and the stopping of his letters constitute an

unjustified interference with his right to respect for his

correspondence contrary to Article 8 of the Convention.

28. While the relevant rules have since been changed, the

applicant submits that the new Standing Orders contain restrictions

and limitations on prisoners' rights which are not necessary in a

democratic society for the prevention of disorder and constitute a

clear breach of the provisions of the Convention. He considers that

the new rules confer excessive discretion on the Governor in stopping

communications. For example, while Order 2.1(d) states that "no

prisoner may be deprived by disciplinary award or otherwise of writing

a statutory letter", the Governor of the Visiting Committee could, as

a disciplinary punishment, impose restrictions on a prisoner's

entitlement to additional letters. Such a restriction constitutes an

excessive use of power by a prison governor and is incompatible with

the Convention. Similarly, if a prisoner has no funds of his own

available to meet the cost of posting, the governor under Order 2.1(g)

may refuse to allow the letter to be sent at public expense. He

provides further examples of Standing Orders which grant wide

discretion on the governor to impose restrictions on a prisoner's

correspondence. He considers these restrictions to constitute

breaches of the Convention.

29. Accordingly, he submits that the changes that have occurred

in the Standing Orders since the bringing of his application do not

satisfy the complaints which are at the basis of his application.

30. He further contends that he did not have an effective remedy

as required by Article 13 of the Convention in respect of his

correspondence complaints or his complaints under Article 3 concerning

the conditions of his detention in the Inverness Segregation Unit.

B. The Government

Article 8 of the Convention

Letters dated 24 June 1981 to the applicant's

solicitor and a Member of Parliament

following the case of Silver and Others

31. The Government concede that the stopping of the two letters

was contrary to Article 8 of the Convention.

Letter dated 5 October 1981 to the Daily Record

32. Since the Government do not have the necessary information

regarding the grounds for stopping this letter, they are unable to say

whether the stopping was justifiable under Article 8.

Letter dated 18 December 1981 to the Procurator Fiscal

33. It is submitted that the stopping of the letter was justified

under Article 8 para. 2 of the Convention. It would be contrary to

the maintenance of prison order if a prisoner were allowed to raise

with the prosecuting authorities allegations of assault by prison

staff on behalf of other prisoners who have not raised any such

complaint themselves.

Letter dated 19 January 1982 to Miss Hampson

34. It is conceded that the stopping of this letter was contrary

to Article 8 of the Convention.

Letters dated 20 and 23 February 1982 to Mr Godwin

35. The Government had agreed that the applicant could correspond

with Mr. Godwin, in relation to his application to the Commission,

without censorship, on the understanding that Mr. Godwin would abide

by the Commission's rule of confidentiality. Some particulars of the

applicant's complaints had appeared in the press and the Government

were unwilling to allow further letters under the arrangement without

an assurance from Mr. Godwin that he would abide by the Commission's

rules in the future. Following Mr. Godwin's reply of 5 March 1982 to

their letter of 24 February 1982 seeking such an assurance, the

letters which had been stopped were then posted.

Stopping of copies of letters dated 4 and 22 June 1982

36. The stopping of these letters is justified under Article 8

para. 2 of the Convention. It would be contrary to the maintenance of

prison order to permit prisoners to obtain letters which alleged a

breakdown of discipline among prison staff and which, in the present

case, suggested that there might have been criminal conduct by prison

staff, and predicted consequent disorder by prisoners.

37. Finally, as regards the disciplinary award of 22 December 1982

the Government concede that this award was contrary to Article 8,

having regard to the case of Silver and Others.

Article 13 of the Convention

38. As regards the complaint under Article 13 relating to

correspondence, it is submitted that where there has been no violation

of Article 8, there has been no violation of Article 13 either.

39. As regards the applicant's complaint under Article 13 in

relation to Article 3, the aggregate of domestic remedies as

summarised above is adequate to comply with Article 13. The case of

Raymond v. Honde (1982) 2 WLR 465 shows that the courts may adjudicate

on the lawfulness of a prisoner's treatment in the light of the

statutory powers and duties of the prison authorities.

40. The applicant might also complain of the decision to transfer

him to the Inverness Unit to the Parliamentary Commissioner for

Administration. He would examine whether or not such a decision

involved maladministration. However, Article 13 does not require a

remedy in respect of the decision to transfer. What matters is the

existence of remedies in respect of treatment while a prisoner is in

the Unit.

41. If a prisoner were detained in the Unit for an excessive period

of time, the case could be reviewed by the Parliamentary Commissioner

for Administration or the prisoner could petition the Secretary of

State. Since the Secretary of State has recommended specified periods

for detention in the Unit, such a complaint would be likely to be

upheld.

IV. OPINION OF THE COMMISSION

A. Points at issue

42. The principal issues to be determined are:

Article 8 (Art. 8)

a) Whether there has been a violation of Article 8 (Art. 8) of the

Convention as a result of:

- the stopping of the two letters of 24 June 1981 from the

applicant to the applicant's lawyer and a Member of Parliament;

- the stopping of the applicant's letter of 5 October 1981 to

the Daily Record;

- the stopping of the applicant's letter of 18 December 1981

to the Procurator Fiscal ;

- the stopping of the applicant's letter of 19 January 1982

to Miss Hampson of Dundee University ;

- the delaying of the letters of 20 February and 23 February

1982 to the applicant's representative ;

- the stopping of the issue to the applicant of copies of

letters written by the applicant's representative to the Secretary of

State and Prison Service Headquarters (dated 4 June 1982 and 22 June

1982) ;

- the 28 day restriction on the applicant's correspondence

imposed by a disciplinary award on 22 December 1982.

Article 10 (Art. 10)

b) Whether the above matters also constituted a violation of

Article 10 (Art. 10) of the Convention.

Article 13 (Art. 13)

c) Whether the applicant had an effective remedy within the

meaning of Article 13 (Art. 13) of the Convention as regards his

complaints concerning his correspondence.

d) Whether the applicant had an effective remedy within the

meaning of Article 13 (Art. 13) of the Convention as regards his

complaints under Article 3 (Art. 3) of the Convention concerning the

conditions of his detention.

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

General considerations

43. The relevant part of Article 8 (Art. 8) of the Convention reads 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 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."

44. In the Commission's opinion in the case of Silver and Others

v. the United Kingdom (Comm. Report 11.10.80) it held as follows:

"... 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) ...

The Commission considers, therefore, that the right under

Article 8 para. 1 (Art. 8-1) to respect for correspondence envisages

a free flow of such communications, subject only to the

limitations prescribed by Article 8 para. 2 (Art. 8-2).

The Commission concludes that the censorship of prisoners'

correspondence by prison authorities, in principle,

constitutes an interference with the right of prisoners to

respect for their correspondence under Article 8 para. 1."

(Art. 8-1) (paras. 269-271)

"Article 8 para. 2 (Art. 8-2) of the Convention requires that any

interference with a person's right to respect for

correspondence be firstly in accordance with the law ...

The Commission considers that phrase ... is not

merely a reference to the State's domestic law, but also

a reference to the rule of law, or the principle of legal

certainty, which is common to democratic societies and

the heritage of member States of the Council of Europe."

(paras. 277 and 281)

45. The Commission noted that this entailed two requirements -

that the law must be adequately accessible and foreseeable (Eur. Court

H.R., Sunday Times judgment of 26 April 1979, Series A No. 30, p. 29

para. 49). Whilst the Prison Rules 1964, as amended, satisfied the

requirement of accessibility, the same could not be said of the

management guidelines unless they could be reasonably deduced from the

Rules.

46. As regards the second element of Article 8 para. 2 (Art. 8-2),

"necessary in a democratic society", the Commission found that

restrictions imposed on a prisoner's right to respect for

correspondence must be necessary and proportionate to meet a

legitimate governmental aim. Thus a balance must be struck, for

example, between the need to rehabilitate a prisoner and the interests

of public order and security (paras. 286-290).

47. As regards the substantive issues, the principal justification

that could be put forward for the censorship of prisoners'

correspondence was the need to prevent disorder. However, the

Commission noted that many of the management guidelines concerning

the contents and addressee of prisoners' letters were overbroad

restrictions, which were not "necessary in a democratic society ...

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

2 (Art. 8-2) of the Convention (paras. 294-426).

48. This opinion of the Commission was not substantially contested

by the respondent Government before the European Court of Human

Rights, which confirmed most of the Commission's conclusions (Eur.

Court H.R., Silver and Others judgment of 25.3.83, Series A No. 61,

pp. 32-41, paras. 83-105).

The present case

49. As regards the facts of the present case, the Commission first

notes that the Government do not contest that, in light of the Silver

case, the stopping of the two letters of 24 June 1981 and the letter

of 19 January 1982 and the imposition of the 28 day restriction on

correspondence were not "necessary in a democratic society for the

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

(Art. 8-2) and accordingly admit that these actions were contrary to

Article 8 (Art. 8) of the Convention. In view of these circumstances,

the Commission finds that these restrictions constituted violations of

Article 8 (Art. 8) of the Convention.

50. Since August 1983 there has been a substantial reform of the

relevant management guidelines. The applicant complains that these

changes however still impose excessive restrictions. These new

regulations were not in force at the material time and it is not the

Commission's task to examine the compatibility with the Convention of

the new regulations in the present case.

51. The Commission will however deal in turn with each of the

applicant's remaining correspondence complaints in light of the

principles and case-law outlined above.

i) Letter of 5 October 1981 to the Daily Record

52. The Government have confirmed that this letter was stopped on

the grounds that it did not conform to Standing Orders but have no

record of the grounds for this view. The Commission recalls that in

this letter the applicant requested the newspaper to send a copy of an

article concerning the applicant and to acknowledge receipt of

previous correspondence.

53. The Commission is unable to discern any relevant or sufficient

reason which might have justified the stopping of the applicant's

letter as being "necessary in a democratic society" for any of the

purposes provided for in Article 8 para. 2 (Art. 8-2) of the Convention.

ii) Letter of 18 December 1981 to the Procurator Fiscal

54. The Government have submitted that this letter to the

Procurator Fiscal was stopped since it contained allegations of

assault on other prisoners. It is stated that the letter was

objectionable in terms of the Standing Orders as containing complaints

of prison treatment and that it was considered that to allow letters

complaining on behalf of other prisoners would be contrary to good

order and discipline.

55. In the Silver case (loc. cit., paras. 385-389), the Commission

considered that an imprecise and overbroad restriction was not

justified in terms of Article 8 para. 2 (Art. 8-2) of the Convention.

Similarly the Commission found that a prohibition which takes no

account of the addressee or the likely effect of the material in

question constituted an overbroad and unjustifiable restriction

(paras. 357-358).

56. In the present case, the Commission notes that the letter was

addressed to the Procurator Fiscal and is unable to discern how such a

letter could have adverse effects on prison order and discipline. The

Commission finds therefore no sufficient reason which might have

justified the stopping of the letter as being "necessary in a

democratic society ... for the prevention of disorder" within the

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

iii) Letters of 20 February and 23 February 1982

57. The Commission recalls that these two letters from the

applicant to his representative Mr. Godwin were delayed and not

posted until 18 March 1982.

58. The Commission refers to its previous case-law to the effect

that the supervision of prisoners' correspondence, while an

interference with their right to respect for correspondence, is in

general justified under the provisions of Article 8 para. 2 (Art.

8-2). Such supervision may reasonably extend, in difficult cases, to

the referral by a prison governor of a prisoner's correspondence to

the Secretary of State for further consideration (e.g. Silver case,

loc. cit. paras. 423-426). In the Silver case for example, the

Commission found that a three weeks delay in the posting of a letter

did not constitute a violation of Article 8 (Art. 8) of the Convention

for this reason.

59. The Commission recalls that in the present case the letters

were delayed while the Scottish Home and Health Department contacted

Mr. Godwin seeking an assurance that he would comply, as he had

agreed, with rules of confidentiality attaching to applications to the

Commission. The Commission finds that the delay in the posting of the

letters interfered with the applicant's right to respect for his

correspondence but also finds, in the circumstances of the present

case, that the interference was justified under Article 8 para. 2

(Art. 8-2) of the Convention as necessary for the protection of the

rights and freedoms of others.

iv) Copies of letters of 4 June and 22 June 1982

written by the applicant's representative

60. The Commission recalls that these letters, copies of letters

from Mr. Godwin to the Secretary of State and Mr. R. Allan of the

Scottish Prison Service, were stopped from being issued to the

applicant on the grounds of security and good order and the prevention

and discouragement of crime.

61. The Commission notes that the letters had been sent by

Mr. Godwin to the Secretary of State and Mr. R. Allan making

representations on the applicant's behalf and that accordingly the

applicant had a legitimate interest in receiving copies of these

letters. While the Commission notes that the letters referred to

alleged provocative acts by prison officers and the state of tension

in the prison, these matters, which included the incident of an

outbreak of fire in the applicant's cell, must already have been known

to the applicant and many other of the prisoners. The Commission

therefore cannot discern how these letters, if issued to the

applicant, could have adverse effects on prison order and discipline

or be construed as encouraging disturbances. The Commission

consequently finds no sufficient reason justifying the stopping of

these letters as being "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.

Conclusion

62. The Commission concludes unanimously :

a) that there has been a violation of Article 8 (Art. 8) of the

Convention in respect of the stopping of the two letters of 24 June

1981 (para. 49) ;

b) that there has been a violation of Article 8 (Art. 8) of the

Convention in respect of the stopping of the letter of 5 October 1981

(paras. 52-53) ;

c) that there has been a violation of Article 8 (Art. 8) of the

Convention in respect of the stopping of the letter of 18 December

1981 (paras. 54-56) ;

d) that there has been a violation of Article 8 (Art. 8) of the

Convention in respect of the stopping of the letter of 19 January 1982

(para. 49) ;

e) that there has been a violation of Article 8 (Art. 8) of the

Convention in respect of the stopping of the issue of the copies of

the letters dated 4 and 22 June 1982 to the applicant (paras. 60-61) ;

f) that there has been a violation of Article 8 (Art. 8) of the

Convention in respect of the disciplinary award of a 28 day

restriction on the applicant's correspondence (para. 49) ;

g) that there has been no violation of Article 8 (Art. 8) of the

Convention in respect of the delaying of the letters of 20 and

23 February 1982 (paras. 57-59).

C. Article 10 (Art. 10) of the Convention

63. The applicant has also complained that the stopping and

delaying of his correspondence constituted a violation of Article 10

(Art. 10) of the Convention. The Commission considers however that

where interference is alleged in the communication of information by

correspondence, Article 8 (Art. 8) is the lex specialis and no

separate issues arise under Article 10 (Art. 10). The Commission

therefore finds it unnecessary to pursue a further examination of the

matter in light of Article 10 (Art. 10) of the Convention.

D. Article 13 (Art. 13) of the Convention

General considerations

64. Article 13 (Art. 13) of the Convention reads:

"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."

65. Article 13 (Art. 13) of the Convention does not, however, require a

remedy under domestic law in respect of any alleged violation of the

Convention. It only applies if an individual can be said to have an

"arguable claim" of a violation of the Convention (Eur. Court H.R.,

Klass and Others judgment of 6 September 1978, Series A no. 28, p. 29

para. 64 and Eur. Court H.R., Boyle and Rice judgment of 27 April

1988, Series A no. 131, para. 52). The scope of the notion of

"arguable claim" was considered by the European Court of Human Rights

in the case of Boyle and Rice (loc. cit.), in particular, its

relationship with a complaint which is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. The Court

stated:

"As the Court pointed out in its Airey judgment of

9 October 1979, rejection of a complaint as 'manifestly

ill-founded' amounts to a decision that 'there is not

even a prima facie case against the respondent State'

(Series A no. 32, p. 10, para. 18). On the ordinary

meaning of the words, it is difficult to conceive how

a claim that is 'manifestly ill-founded' can

nevertheless be 'arguable', and vice versa.

This does not mean, however, that the Court must hold

a claim to be excluded from the operation of Article

13 (Art. 13) if the Commission has previously declared it

manifestly ill-founded under the substantive Article.

The Commission's decision declaring an application

admissible determines the scope of the case brought

before the Court (see the Ireland v. the United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 63

para. 157). The Court is precluded from reviewing on

their merits under the relevant Article the complaints

rejected as manifestly ill-founded, but empowered to

entertain those complaints which the Commission has

declared admissible and which have been duly referred

to it. The Court is thus competent to take cognisance

of all questions of fact and of law arising in the context

of the complaints before it under Article 13 (Art. 13) (ibid.),

including the arguability or not of the claims of violation

of the substantive provisions. In this connection, the

Commission's decision on the admissibility of the underlying

claims and the reasoning therein, whilst not being decisive,

provide significant pointers as to the arguable character of

the claims for the purposes of Article 13 (Art. 13).

The Court does not think that it should give an abstract

definition of the notion of arguability. Rather it must

be determined, in the light of the particular facts and the

nature of the legal issue or issues raised, whether each

individual claim of violation forming the basis of a complaint

under Article 13 (Art. 13) was arguable and, if so, whether the

requirements of Article 13 (Art. 13) were met in relation thereto"

(Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,

paras. 52-55).

Availability of remedies for prisoners' correspondence

complaints

66. As regards the availability of effective remedies in respect

of complaints concerning prisoners' correspondence, the Commission

recalls that in the case of Silver (loc. cit.) the Commission and the

Court were of the opinion that the applicants did not have access to

effective domestic remedies, as envisaged by Article 13 (Art. 13) of the

Convention, for the alleged breaches of their right to respect for

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

Moreover, the Commission and the Court considered that the possible

channels for prisoners' complaints, i.e. the English courts, the

Parliamentary Commissioner for Administration, the Board of Visitors

and the Home Secretary, were inadequate for the purposes of Article 13

(Art. 13). In particular, while a petition to the Secretary of State

might be effective when a complaint was directed against the

misapplication of one of his directives, it would not be so when the

complaint concerned the validity of the directive itself (Comm.

Report paras. 435-453; Eur. Court H.R., Silver judgment of 25 March

1983, Series A No. 61, pp. 42-44, paras. 111-119).

The present case

Article 13 in conjunction with Article 8 (Art. 13+8) of the

Convention

67. The Commission recalls that it has declared admissible all the

applicant's complaints under Article 8 (Art. 8) and found a violation in

respect of the stopping of the letters of 24 June 1981, 5 October

1981, 18 December 1981, 19 January 1982 and the copies of letters of 4

and 22 June 1982 and in respect of the disciplinary award. The

Commission considers that in respect of all his complaints under

Article 8 (Art. 8) the applicant has an arguable claim for the purposes of

Article 13 (Art. 13) of the Convention.

68. The Commission must therefore examine the effectiveness of the

remedies available in respect of these complaints. As in the Silver

case (loc. cit.), the remedies advanced by the respondent Government

are the Parliamentary Commissioner, the Board of Visitors, the Courts

and the Secretary of State. As found by both the Commission and the

Court in the Silver case, the first three do not constitute an

effective remedy in respect of this type of correspondence complaints.

Whether the Secretary of State could do so depends on the nature of

the complaint. If it concerns the application or implementation of the

prison norm, the Secretary of State provides an effective remedy. If,

on the other hand, it concerns the validity of the norm itself the

Secretary of State cannot be considered a sufficient remedy as

required by Article 13 (Art. 13).

69. As regards the applicant's complaints of the stopping of the

letters of 24 June 1981 and 18 December 1981, the Commission recalls

that these letters were stopped, under Standing Orders Ic 1(3)d and

Ic 3(6)a which prohibited as objectionable complaints of prison

treatment. The Commission finds that these complaints are directed

against the compatibility of the directives themselves with the

Convention rather than their implementation. Accordingly there was no

effective remedy available.

70. As regards the letters of 19 January 1982 and the copies of

letters dated 4 and 22 June 1982, the Commission recalls that the

first was stopped under Standing Order Ic 4(12) which gives the

Governor a discretion to stop letters to persons who are not friends

or relatives of the prisoner and the second under Standing Order Ic

4(12)b which gives the Governor a discretion to stop letters on the

ground of security, good order and discipline and the interests of the

prevention and discouragement of crime. The Commission finds that

these complaints are directed towards the exercise of the Government's

discretion in these cases and therefore concern the implementation and

application of these prison norms. In respect of these letters the

Commission finds that there was a remedy available.

71. The Government have not given any reason for the stopping of

the letter of 5 October 1981 to the Daily Record. Against this

background the Commission finds that the decision to stop this letter

would not appear to fall under the Standing Orders. The Commission

takes the view, in these circumstances, that it would have been

possible for the applicant to challenge the decision on the grounds

that it was not covered by any of the Standing Orders. Similarly, as

regards the delay in the sending of the letters of 20 and 23 February

1982 the applicant was entitled under the Standing Orders 3(10)(g)i to

correspond with his legal adviser and other persons in connection with

the preparation of his petition to the Commission. The Commission

therefore finds that the delaying of these letters raised issues of

the application of this provision which could have been referred to

the Secretary of State, who would have constituted an effective remedy

in this respect.

72. Lastly, as concerns the disciplinary award of 28 days

restriction on correspondence which was imposed by the Board of

Visitors on 22 December 1982 the Commission recalls that this

punishment was imposed under Rule 74(2) of the Prison (Scotland) Rules

1952. The Commission considers that this matter concerns the norm

itself rather than its application and that accordingly recourse to

the Secretary of State would not have constituted an effective remedy.

Conclusion

73. The Commission concludes unanimously that there has been a

violation of Article 13 (Art. 13) in relation to the applicant's

complaints under Article 8 (Art. 8) of the Convention concerning the

stopping of the letters of 24 June 1981 and 18 December 1981 and the

disciplinary award of 22 December 1982 of a 28 day restriction on the

applicant's correspondence.

74. The Commission concludes unanimously that there has been no

violation of Article 13 (Art. 13) in relation to the applicant's complaints

under Article 8 (Art. 8) of the Convention concerning the letters of 5

October 1981, 19 January 1982, 20 and 23 February 1982 and the copies

of letters dated 4 and 22 June 1982.

Article 13 in conjunction with Article 3 (Art. 13+3)

75. The Commission recalls that the applicant complains that he

has no effective remedy in relation to his complaints under Article 3

(Art. 3) of the Convention of the conditions of his detention in the

Inverness Segregation Unit. The Commission must first consider

whether the applicant has an arguable claim of a violation of a breach

of Article 3 (Art. 3) of the Convention.

76. The Commission notes that according to the Government the

Inverness Unit was set up to provide a secure place of segregation for

those prisoners, who through violent, subversive or recalcitrant

behaviour were seriously disrupting order in the institutions in which

they were detained, who had not responded to the treatment provided in

those establishments and had refused to cooperate with normal prison

routine. The applicant complained inter alia of this unit that it was

"soul destroying" and oppressive. While letters and visits were

allowed on a regular basis, the Commission recalls that prisoners in

the unit were kept in single cells which had a barred security grill

separating the entrance lobby of the cell from the area in which the

prisoner was confined, that they were not permitted to associate with

other prisoners and kept locked up except for exercise periods and

going to the toilet. While the Commission found in its Partial

Decision on Admissibility that the actual conditions and treatment

complained of did not constitute inhuman or degrading treatment within

the meaning of Article 3 (Art. 3) of the Convention, it did consider

that the regime was exceedingly rigorous in nature.

77. Article 3 (Art. 3) of the Convention provides for no legitimate

exception to its requirements. As the Commission and the Court have

held in other cases, the borderline between harsh treatment on the one

hand and a violation of Article 3 (Art. 3) on the other is sometimes

difficult to establish (see e.g. Eur. Court H.R., Ireland v. the

United Kingdom judgment of 18 January 1978, Series A no. 25, pp.

65-72, paras. 162-187 and Application No. 8463/78, Comm. Rep.

16.12.82, D.R. 34, p. 24). It is especially in these situations that

the guarantee of Article 13 (Art. 13) becomes important to ensure on a

national level that violations of Article 3 (Art. 3) can be examined.

78. In light of the particular circumstances of this case and the

serious nature of the issues raised, the Commission finds that the

applicant's complaints must be considered to raise an arguable claim

for the purposes of Article 13 (Art. 13) of the Convention.

79. The Commission must next determine whether the applicant had

an effective remedy under Article 13 (Art. 13) of the Convention in

respect of these complaints. The applicant submits that he has not,

whereas the Government contend that there is an aggregate of

satisfactory remedies available for the applicant's complaints against

the regime in the Inverness Unit: petition to the Secretary of State

for Scotland, complaints to the Visiting Committee, to the

Parliamentary Commissioner for Administration and civil action in the

courts. The Government also refer to the possibility of complaint to

a Sheriff or Justice of the Peace, the Inverness Unit Review Board and

the Standing Committee on Difficult Prisoners.

80. The Commission notes however of the latter possibilities that

while the Inverness Unit Review Board and the Standing Committee on

Difficult Prisoners may entertain complaints, their function is only

to give advice to the Secretary of State: they do not have any power

to make any binding recommendations. As regards the possibility of

complaining to a Sheriff or Justice of the Peace, it appears that this

means of complaint is seldom, if ever, used.

81. The Commission has examined the remaining channels of

complaint open to the applicant. As found in the Silver case (loc.

cit.) however, the Parliamentary Commissioner for Administration and

the Visiting Committee do not constitute an "effective remedy",

neither being able to enforce their decisions. As regards the

efficacy of petitioning the Secretary of State, the Commission recalls

that the applicant's complaints are directed against the conditions

in the Inverness Unit which are regulated by the administrative

instructions (e.g. Inverness Prison Unit Regulations) issued by the

Secretary of State. Since his complaints concern the compatibility of

these regulations with the Convention rather than the manner of their

implementation the Commission finds that the Secretary of State cannot

be considered an effective remedy.

82. The Government have submitted that the applicant would have

the possibility of bringing an action before the courts on the basis

that the exercise by public authorities of statutory powers and duties

is reviewable in the courts. The Commission notes however that the

scope of review is limited to determining whether the power or duty

has been exercised arbitrarily, unreasonably or for an improper

purpose. The Government have cited no previous cases in which a

prisoner has been able to secure a remedy in the courts in respect of

the conditions of detention imposed by the Secretary of State in

exercise of his statutory powers.

83. The Commission accordingly finds that none of the above

remedies could provide adequate redress for the applicant's complaints

under Article 3 (Art. 3) of the Convention. The lack of effectiveness

of each remedy, considered in isolation, is not cured by considering

the aggregate of remedies as a whole, since the imperfections which

taint each single remedy remain. The Commission finds therefore that

the applicant did not have an effective remedy within the meaning of

Article 13 (Art. 13) of the Convention.

Conclusion

84. The Commission concludes, by nine votes to six, that there has

been a violation of Article 13 of the Convention in conjunction with

Article 3 (Art. 13+3).

E. Recapitulation

85. The Commission concludes :