Lexploria

The European Commission of Human Rights sitting in private on 4 March

1986, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. H. C. KRÃœGER Secretary to the Commission

Having regard to Art. 25 of the Convention (Art. 25) for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 October 1984 by

W.M and Others against the United Kingdom and

registered on 23 October 1984 under file N° 11208/84;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants were, at the time of the lodging of their application,

serving prison sentences at HM Prison Magilligan, Northern Ireland.

They had all taken part in an abortive hunger strike begun by a group

of loyalist prisoners to achieve segregation from republican prisoners

which lasted from 19 August 1984 until 18 September 1984. The facts

of the application, some of which are in dispute between the parties,

may be summarised as follows:

The applicants are:

- William McQuiston, a citizen of the United Kingdom, born in

1956, who was sentenced to eight years' imprisonment on 4 October 1976

for inter alia firearms offences.

- William Ritchie, a citizen of the United Kingdom, born in

1961, who was sentenced to six years' imprisonment on 10 February 1983

for armed robbery.

- Thomas Harris, a citizen of the United Kingdom, born in 1953, who

was sentenced to ten years' imprisonment for armed robbery on 4 March

1980.- Elmer Stevenson, a citizen of the United Kingdom, born in

1953. On 9 June 1983 he was sentenced to four years' imprisonment for

possession of firearms and ammunition within intent.

- Alan McKenzie, a citizen of the United Kingdom, born in 1961.

On 15 May 1981 he was sentenced to seven years' imprisonment for

possession of firearms.

The applicants are represented by Mr. Richard Monteith, solicitor,

Portadown, Northern Ireland who has submitted powers of attorney to

this effect.

The applicants McQuiston, Harris and Stevenson were released from

prison early in 1985.

The applicants complain of the system of integrating republican and

loyalist prisoners at HM Prison Magilligan. They claim that they are

forced to remain in their cells for 23 hours per day since they fear

for their own safety if they leave their cells to go for meals, to

wash or to enjoy association with other prisoners.

The applicant McQuiston alleges that on 27 July 1984 he was ordered to

attend a canteen on C Wing H Block 3 (i.e. H3) after he had collected

his meal. He alleges that a republican prisoner threw a cup of hot

tea around him. The same prisoner pulled the applicant to the ground

and kicked him. The applicant received bruising to the head and

scalding to the right shoulder neck and right ear. A sedative was

prescribed to calm his nerves.

The applicant Ritchie alleges that he was attacked by two republican

prisoners while he was having a shower. The prisoners threw a bucket

at him and struck him around the head and body with a mop. He

received bruising to the left shoulder and head and received medical

treatment.

He states that he was also present on 27 July 1984 when the assault

took place on the applicant McQuiston. As a result he received

scalding to his left wrist and hand.

The applicant Harris alleges that he was in the shower unit attached

to C Wing H3, when an explosive device which had been planted by

republican prisoners exploded. He sustained shock and alleges that he

is still affected by periods of nervous shaking.

In May or June 1984 he claims to have been punched severely below the

left ear by a republican prisoner while he was carrying out a painting

duty. He states that there were three prison officers near the

applicant when he was attacked.

The applicant Stevenson alleges that he had to leave the exercise yard

in B Wing H3 after receiving death threats from 20 republican

prisoners who were present. He also alleges to have been threatened

with death if he should go to the workshop. He further claims that he

was attacked by four republican prisoners in the exercise yard. Two

days after this the same republican prisoner who had been involved in

this attack attacked the applicant again, causing him severe injury to

his left knee and leg.

On 27 August 1984 the applicant was told that he would be stabbed if

he went to the wood yard. He subsequently discovered that a knife had

been found in the wood yard on 23 August 1984.

The applicant McKenzie alleges that in May 1984 after drinking a cup

of tea he noticed some capsules in the bottom of his cup. He believes

that this was an attempt by republican prisoners to poison him. The

cup and its contents were taken away for analysis but he claims that

he was never informed of the result.

On 10 January 1985 the applicants McQuiston, Ritchie, Harris and

Stevenson initiated civil proceedings in the Londonderry County Court,

claiming damages for personal injuries, loss and damage sustained by

reason of the negligence of the prison authorities. Their actions

relate to the above-mentioned incidents.

COMPLAINTS

Article 2, para. 1 (Art. 2-1)

The applicants have all endured physical assaults and intimidation

from republican prisoners housed in the same prison wings. They all

claim that they fear for their personal safety and that the respondent

Government have failed to maintain adequate security and to provide

sufficient protection in breach of Art. 2, para. 1 of the Convention

(Art. 2-1).

Article 3 (Art. 3)

They complain that the policy of integrating the applicants with

republican prisoners and the relentless physical attacks which they

are subjected to amount to inhuman treatment.

In addition, they claim to be the victims of inhuman and degrading

treatment in that they have been compelled by the situation to remain

in their cells for 23 hours each day and to go on hunger strike.

Article 5, para. 1 (Art. 5-1)

They complain that their right to security of person has been

inadequately protected by the respondent Government, as shown by the

attacks they have endured.

Article 14 (Art. 14)

The applicants point out that in March 1984 a de facto separation of

loyalist and republican prisoners was permitted at HM Prison Maze.

They claim that at least 21 wings out of 30 in the eight H Blocks of

HM Prison Maze have been segregated. They maintain that they are thus

the victims of discrimination.

SUBMISSIONS OF THE PARTIES

The Respondent Government

Relevant domestic law

It is well established in the law of the United Kingdom that prison

authorities owe a common law duty of care to prisoners to take

reasonable care for their safety, and that this duty covers cases

where a prisoner's safety may be endangered by the risk of attack from

another prisoner (see Ellis v. Home Office <1953> 2 All ER 149). On

18 May 1984 a judge at Limavady Court awarded damages for personal

injuries to three prisoners in respect of an incident which had

occurred at Magilligan Prison on 31 October 1982. The plaintiffs,

loyalist prisoners, had been assaulted in the dining hall and the

judge found the Northern Ireland office negligent in failing to

provide adequate protection for them. Any prisoner, therefore, who

claims to have been assaulted by another prisoner and claims that the

assault arose out of a failure to take proper care on the part of the

prison authorities has a civil action in domestic law and, if

successful, is entitled to damages. Legal aid is available in such

proceedings.

Northern Ireland Prisons: background

Before the beginning of civil disturbance in 1968 the total prison

population in Northern Ireland was just over 600. By June 1973 it

stood at over 2,000.

Magilligan Prison was opened in May 1972 and at first consisted of

compound accommodation. Four compounds were replaced by three H

Blocks similar to those at Maze Prison. A fifth compound was

demolished and the remaining three are now used for training purposes.

The prison houses some 320 low and medium risk prisoners, many of whom

are in the final stages of their sentences.

In June 1972, in the face of a hunger strike involving a number of

prisoners, the Government introduced special category status for

prisoners involved with both republican and loyalist paramilitary

organisations. These prisoners were not required to work, could wear

their own clothes and were allowed additional privileges, including

extra visits and food parcels. It was subsequently found that the use

of compound accommodation gave rise to serious problems of security,

control and administration. The Gardiner Committee Report examined

the question of special category status and noted that in practice

discipline was exercised by compound leaders and for this reason

rehabilitation was impossible. It was also emphasized that, by

according special category status to criminals convicted of serious

crimes, support was being lent to their view that political motivation

justified their crimes. In November 1975 the Secretary of State

announced the Government's intention to phase out special category

status with effect from 1 March 1976.

This decision was staunchly resisted by republican prisoners in the

Maze Prison, leading to the "dirty" campaign and the hunger strikes

during 1980 and 1981.

Following the end of the republican hunger strikes after the death of

ten prisoners in 1981, republican prisoners who conformed with the

prison rules were housed with loyalist prisoners in the Maze Prison.

The loyalist prisoners claimed that they were subject to threats on

their lives as a result of the increasing number of republicans in the

block and began their own campaign for segregation. This campaign

reached its peak in the Maze Prison in October 1982 when they wrecked

the contents of over 1,200 cells and embarked on a "dirty" protest

which, for reasons of health and hygiene, resulted in their

segregation.

In February 1984 the loyalist prisoners ended their protest and

declared themsleves to conform fully with all aspects of the prison

rules. The prison authorities then mixed a small number of republican

and loyalist prisoners in one wing of the Maze Cellular Prison. This

action resulted in almost immediate violence. As a consequence,

integration of these groups was not forced and many prisoners in the

Maze Cellular Prison remain in practice segregated.

Situation in Magilligan Prison

Following the end of the protest in the Maze Prison, the focus of

attention switched to Magilligan Prison, where loyalist prisoners,

seeing that segregation on a de facto basis had been achieved by many

prisoners in the Maze, embarked on a hunger strike on 21 May 1984.

This ended on 2 June 1984. A second hunger strike, involving ten

prisoners (including the applicants) began on 19 August 1984. The

prisoners claimed that they were forced to go on hunger strike because

they feared for their safety. They resumed eating on 18 September

1984 when it was made clear that the Government were not prepared to

grant segregation, but would take steps to achieve a better balance

between loyalists and republican factions in prison. This was done at

the beginning of October by moving prisoners between Magilligan and

the Maze.

Throughout the protest action substantial numbers of Catholic and

Protestant prisoners lived together and shared common facilities

without difficulty.

All the prisoners in H1 and H2 including the ten former hunger

strikers, are now taking full advantage of the facilities offered and

are integrating fully for meals, work, exercise and association. In

H3 from 28 October 1984 the prisoners have operated a system agreed

between themselves of self-imposed segregation with association being

taken by loyalists and republicans on alternate days. The two

factions, however, work together. As at 1 May 1985 two wings are

fully conforming and mixing for meals, work, exercise and association.

Only the prisoners in the remaining two wings of the prison, H3B and

H3C, have continued to organise themselves not to share exercise and

association facilities. Since that date there has not been a single

sectarian incident.

Government policy on segregation in Northern Ireland Prisons

The Government have repeatedly made clear that they do not accept that

there are political prisoners or prisoners of war in Northern Ireland.

The attraction of segregation for those prisoners who see themselves

as "loyalist" or "republican" is that it gives support to their

contention that they are not ordinary criminals but political

prisoners.

The Government regard segregation as being divisive and contrary to

the overall aim of securing good order in prisons. Segregation is

sought after because it increases the power of the paramilitary

organisations. In segregated conditions, the paramilitary command

structure can operate more effectively because the organisation is

better able to enforce its wishes over prisoners living in segregated

conditions. Experience has shown that in segregated conditions great

pressure is exerted on staff and on individual prisoners whose

allegiance to the organisations may be waning. The power the

organisations hold over prisoners gives them some control of their

families outside, and thereby strenghtens the hand of the terrorist

organisations in the community. Moreover, the authority of the

Governor is undermined since all links between prison administration

and prisoners must be conducted through the paramilitary command

structure.

Facts relating to all applicants

The Government deny that loyalists are outnumbered by republicans by a

ratio of 2:1 in H3 Magilligan. In May 1984 A and B Wings each housed

17 Catholic prisoners and 13 Protestants (1), C Wing housed 16

Catholics and 12 Protestants and D Wing had 16 Catholics and 14

Protestants. As at 1 May 1985 H3 is composed as follows: A Wing - 11

Catholics and 13 Protestants, B Wing 15 Catholics and 15 Protestants,

C Wing 14 Catholics and 15 Protestants and D Wing 12 Catholics and 16

Protestants.

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(1) The prison authorities keep a record of the religious denomination

of each prisoner. The Government point out that only a rough

equivalence exists between the terms "republican" and "Catholic", on

the one hand, and "loyalist" and "Protestant" on the other.

-----------

On reception of each of the applicants into prison, the balance was as

follows:

- the applicant McQuiston was committed to H3 Wing C in May

1984. The balance of Catholics to other prisoners was 16:12;

- the applicant Ritchie was committed to H3 Wing C in June 1983.

The balance of Catholics to other prisoners was 20:16;

- the applicant Harris was committed to H3 Wing B in July 1983.

The balance of Catholics to other prisoners was 20:18;

- the applicant Stevenson was committed to H1 Wing A in January

1984. The balance of Catholics to other prisoners was 20:14;

- the applicant McKenzie was committed to H1 Wing B in December

1981. The balance of Catholics to other prisoners was 19:17.

The applicants, in their description of the daily routine, have not

made any reference to work. All five applicants worked from

approximately 09.00 hours to 12.00 hours and 14.15 hours to 16.00

hours on weekdays.

In H Blocks 1 and 2, both Protestant and Catholic prisoners exercise

in the normal way but in H3 Wings B and C loyalist prisoners take

exercise during one period and republican prisoners during another.

Similarly, in H1 and 2, and in H3 Wings A and D, from 17.30 hours

until 20.30 hours loyalist and republican prisoners mix together, play

games, watch television or attend evening education classes. This

occurred also in H3 until December 1982 when loyalist and republican

factions agreed to alternate their association period between them.

This arrangement continued until September 1983 when loyalist

prisoners in H3 refused any association. Since October 1984 prisoners

have reverted to alternating association for each group.

The Government refer to a letter found during a cell search from a

republican leader to his loyalist opposite number. The letter shows

that the loyalists' alleged fear for their lives is contrived in

order to further the claim for segregation. Moreover the letter shows

that both sides collude to stage violent incidents if and when they

consider this useful to their campaign.

During the association periods there are four members of staff in

every Wing. There is also a permanent "immediate reaction force" of

12 staff and a principal officer to render assistance in the event of

an incident. Prisoners are permitted on the Wing landing only in

controlled numbers which never exceed four at any one time. If

prisoners remain in their cells, the cell doors are locked so that

no-one can enter. When prisoners are in the dining hall they are

locked in so that there is no more movement than necessary.

Since the end of the loyalist hunger strikes all the applicants mixed

freely with Catholic prisoners at work, on their Wings, at football,

at education classes and in association in the dining halls at night.

They work in the company of prisoners from H1 and H2 and all prisoners

take visits in the common visits area. There is no indication of any

tension in these areas. Moreover, those hunger strikers housed in H1

or H2 Blocks have been able to associate and work with other prisoners

without apparent fear.

Applicant McQuiston

The Government confirm that on 27 July 1984 a mug of tea was thrown

over the applicant. There were two members of staff in the immediate

area of the incident and one of them removed the first applicant for

medical help. The prisoner responsible was later punished for the

offence with inter alia loss of 21 days of remission and three days'

cellular confinement.

The staff involved in this incident deny that the first applicant was

assaulted by any other prisoner. The incident occurred when the

applicant and three other prisoners were collecting their meals from

the dining hall. There were five members of staff present on the

landing to supervise the total number of four prisoners who would be

released from their cells at any one time to collect their meals.

Following the incident on 27 July the first applicant was seen by the

hospital officer and his injuries were dressed. On 30 July he was

seen by the prison doctor who noted blistering on his shoulder and on

the back of his neck.

On 3 August the doctor noted that the area of scalding had settled

down; that there was no sign of infection; and that there was no need

for further dressings. The first applicant did not mention to the

doctor any additional injuries to his head as a result of kicking.

In August 1984, after complaining of loss of memory and difficulties

of concentration, he was referred by the prison doctor to a

psychiatrist. He was subsequently seen by a psychiatrist on

3 September 1984 after he had begun a hunger strike. The psychiatrist

reported that he had no symptoms of any psychiatric illness. Following

the end of his hunger strike he was again seen by a psychiatrist and

medication was prescribed for a period of three to four weeks.

Applicant Ritchie

The Government state that on 12 May 1984 while the applicant Ritchie

was taking a shower a republican prisoner threw an empty mop bucket at

him. The prisoner was subsequently awarded 28 days' loss of remission

for the offence.

Following the incident the hospital officer who examined the applicant

noted a small mark on his left upper arm. He had no other complaints.

There was no injury to his head and no medical treatment was required.

On 4 May 1984 he complained of loss of sleep and nervousness.

Sedatives were subsequently prescribed.

On 27 July 1984 the applicant, who had been beside the applicant

McQuiston when he was scalded by hot tea, was reported to have

received a scald to his right wrist. It was found to be healed by the

prison doctor on 2 August 1984.

On 11 September 1984 when he had gone on hunger strike, he was seen by

the consultant psychiatrist who considered that there were no obvious

symptoms of psychiatric illness.

Applicant Harris

On 1 February 1984, in the washing area, a detonator exploded under a

device containing two ounces of commercial explosive. Six loyalist

prisoners, including the applicant, were in the vicinity. None of them

was physically injured, although they all appeared shocked and

distressed. The applicant was examined soon afterwards by the duty

doctor and again the next day. He was found to be well and not

suffering from shock. At no stage did he make any complaint to the

doctor about suffering from anxiety or nervousness. During the course

of his hunger strike he was examined by the consultant psychiatrist

who stated that he noted no symptoms of psychiatric illness.

On 6 June 1984, while the applicant was on painting duty, he was

punched from behind by a republican prisoner. The prisoner was

subsequently awarded 28 days' loss of remission and 90 days'

confinement to cell during the evening for this offence. There were

four officers on the wing at the time of the incident. The third

applicant was examined after the incident and a red mark was detected

below his left ear. He did not require any treatment.

Applicant Stevenson

In early January 1984 the applicant was seen talking to two republican

prisoners in the exercise yard. He did not make any complaint to the

prison authorities about their threats and in subsequent interviews

when he alleged that he had been threatened, he refused to name the

person who was threatening him. Nor did he mention any threat of

stabbing on 27 August 1984 and he went to the wood yard as usual on

that day. On 23 August 1984 a steel knife was found in a search at

the wood yard area. It is believed that it could have been used

against staff as handicraft tools had been used to murder a prison

officer less than a year before. However, it is unlikely that it was

intended for use to attack prisoners, since chisels, axes, hatchets

and saws were already available in the wood yard area.

On 24 April 1984 the applicant attacked and assaulted a republican

prisoner. He was subsequently awarded 28 days' loss of remission with

90 days' loss of evening association. On 25 April 1984 he attacked

and kicked the same republican prisoner. He was subsequently charged

with assault and again awarded 28 days' loss of remission and 90 days'

loss of evening association.

After he had ended his hunger strike in October 1984 he was moved to

the B Wing of H Block 1 where there were 14 Catholics and 10

Protestants. He mixed freely with Catholic prisoners until his

release on 15 February 1985. In addition, he continued working in the

wood yard with no apparent distress and no complaints about his

safety.

Applicant McKenzie

On 3 May 1984 the applicant complained that an attempt had been made

to poison him. He showed the hospital officer his mug in the bottom

of which were two partially dissolved tablets. He stated that the

tablets had come from the tea urn. The Government state that the

spout of the tea urn is so constructed that it is physically

impossible for two tablets to have passed through it. It is the

practice that prisoners fill their own mugs and return with them to

their cells so that a prisoner's mug never leaves his possession. The

Government state that it is difficult to see how the tablets could

have found their way into his mug unless he put them there himself.

The tablets were sent for forensic analysis and were found to be based

on theophylline - drug used in the treatment of asthmatics. It has

been established that only a large dose of this drug would cause ill

effects in a non-asthmatic. Two tablets would present no danger to

health.

At the end of the applicant's hunger strike he was eventually moved to

B Wing of H Block 1 where he is now detained. He mixes freely with

Catholic prisoners on the Wing and works alongside them in the prison

wood yard.

Following the report of the incident conerning the tablets, he was put

on special observation which involved his being observed every fifteen

minutes in his cell. No abnormal behaviour was noted.

Admissibility and merits

Article 26 (Art. 26) - exhaustion of domestic remedies

The applicants complain that they have suffered either mental or

physical injury as a result of the failure of the prison authorities

to take sufficient care for their safety in protecting them from

attacks from republican prisoners. Four of the five applicants have

issued civil bills claiming damages against the Secretary of State for

Northern Ireland in respect of the incidents invoked in the

application. In these circumstances the applicants cannot be said to

have exhausted their domestic remedies.

Civil Bills were issued on 10 January 1985 and are still pending

before the courts. The delay can be attributed to inaction on the

part of the applicants' solicitor. For a civil bill to be listed for

hearing, it is essential that the plaintiff's solicitor lodge the

original Civil Bill with the County Court Office fourteen days before

the date on which the County Court sittings commence. The applicants'

solicitor failed to lodge the original Civil Bills for the most recent

sitting of the court at Limavady which began on 11 October 1985.

Abuse of the right of petition

It is submitted that none of the applicants was ever at risk of

serious injury in any of the incidents complained of. Moreover, it is

clear from the letter discovered in a cell search that loyalist and

republican prisoners are able to co-operate with each other; that

self-imposed segregation does not derive from fear and is not

necessary on grounds of safety. The present application is part of an

orchestrated campaign for segregation and political status. It is

claimed that none of the applicants is genuinely concerned about

breaches of the Convention and that the application is intended to

achieve segregation. As such, it should be dismissed as an abuse of

the right of petition in accordance with Art. 27, para. 2 (Art. 27-2).

Article 2 (Art. 2)

The applicants have not adduced any evidence to show that the

authorities are failing in their duty to protect their right to life

and personal safety. During an association period there are four

members of staff in every Wing, one of whom is in the dining hall, the

other three on the landing. There is also an "immediate reaction

force" of 12 staff and a principal officer to render assistance in the

event of an incident. The incidents cited by the applicants show that

in every case staff reaction has been immediate and that assailants

have been dealt with promptly according to the prison rules. While

the authorities cannot eliminate every chance of prisoners assaulting

one another, every reasonable precaution was taken to protect the

applicants from harm.

Finally, it is submitted that none of the incidents or injuries

referred to by the applicants reveal a real threat to their lives.

Moreover the complaints of psychiatric illness are not borne out by

the medical records.

Article 3 (Art. 3)

The applicants complain that they are forced to alternate exercise and

association periods with republican prisoners because of fears for

their safety. The Government regard these fears as exaggerated, not

least because association takes place between republican and loyalist

prisoners at work without incident. At any event this regime is

self-imposed. Accordingly, the applicants have not been subjected to

any treatment which could be characterised as inhuman or degrading.

Article 5 (Art. 5)

It is submitted that the phrase "security of person" is to be read in

the context of the right to liberty. It provides a guarantee against

arbitrary interference with personal liberty. As such, in the present

case, no issue arises.

Article 14 (Art. 14)

It is the policy of the prison administration that all prisoners

should be treated equally. Insofar as the applicants suffer from any

discrimination, it is a result of the segregation which is

self-imposed. In fact, the applicants are seeking to institutionalise

a form of discrimination on religious and political grounds which they

wish the Government to impose. The de facto segregation which

continues in the Maze Prison came about as a result of the hunger

strikes and "dirty" protest between 1976 and 1982. It represents an

exception to the general basis on which prisons are administered in

Northern Ireland and progress has been made in phasing it out. Thus

in October 1984, nine wings were mixed, 15 were wholly republican and

5 wholly loyalist. It is the stated intention of the Government to

phase out segregation.

It is submitted that, in applying to prisoners in Magilligan the

standards which obtained throughout the rest of the United Kingdom,

they cannot be guilty of discrimination and that no issue arises under

this provision.

The applicants

As to Fact

The applicants state that they do not seek to be treated as political

prisoners or prisoners of war. Nor do they seek separation on

sectarian grounds. They do, however, seek separation from republican

prisoners who have sworn to kill and maim them.

They point out that the letter, referred to by the Government as

evidence of collusion between republican and loyalist groups,

post-dates the release from prison of applicants McQuiston, Harris and

Stevenson. Moreover, the letter was found in the cell of a prisoner

with known psychiatric history. They deny that there is any collusion

and suggest that it is highly improbable that prisoners would collude

to cause serious bodily injuries or provoke incidents resulting in

loss of remission.

They point out that after the hunger strike they were placed on Wings

where they did not regard the other prisoners as being republicans or

where the republican prisoners were in such small numbers as not to

pose a danger to the applicants. Moreover, they believe that the

prisoners housed in H Blocks 1 and 2 include few republicans who have

been sentenced for terrorist crimes, whereas prior to the hunger

strike they had been required to work with leading republican

prisoners who threatened them with attack.

The applicant McQuiston contends that the republican prisoner also

physically assaulted him as well as scalding him. He notes also that

the prison doctor considered it necessary to prescribe a sedative to

calm his nerves as a result of the injuries received.

The applicant Ritchie points out that he was at McQuiston's side when

he was scalded and that his injuries are consistent with a scald.

The applicant Harris maintains that the presence of commercial

explosives in HM Prison Magilligan shows that the respondent

Government is incapable of guaranteeing the applicants' safety. This

incident alone substantiates their allegations that they are at

serious physical risk.

The applicant Stevenson maintains his allegations that his life was

threatened. This claim is substantiated by the finding of the steel

knife. He points out that the tools in the wood yard are subject to

close supervision and could not be transferred to other parts of the

prison. In addition, he notes the doctor's report dated 25 April 1984

which records a left thigh injury "due to someone kicking him".

The applicant McKenzie concedes that the tablets could not have come

out of the tea urn but believes that they were introduced by a

republican orderly in the canteen area. He states that he had passed

the mug through the outer grill to the kitchen area staffed by

republican orderlies.

Admissibility and merits

Exhaustion of domestic remedies

The applicants contend that the remedies available to them before the

Northern Ireland courts are not sufficient and are not capable of

providing redress for their complaints. The courts cannot bring about

a change in Government policy concerning the integration of loyalist

and republican prisoners. Nor could the courts end the discrimination

that exists between the treatment of loyalist prisoners at HM Prison

Maze and at HM Prison Magilligan.

Finally, they point out that although the civil bills were issued on

10 January 1985 they have not yet come to trial. They contend that

such a lengthy delay renders this remedy ineffective.

The Government's assertions that the cases have to be re-listed are

incorrect. There is no need to further re-enter bills once they have

been listed for hearing. All four applicants who issued civil bills

had their case listed for "reserve day C".

Abuse of the right of petition

The applicants are genuinely concerned about the breaches of the

Convention and have taken all necessary steps to complain to the

Secretary of State for Northern Ireland, the prison Governor and the

courts. They have been at risk of serious injury and the respondent

Government have admitted the presence of an explosive device, a knife

and the various attacks alleged by the applicants.

Article 2 (Art. 2)

Article 2 (Art. 2) cannot be interpreted as excluding "any possible

violence". The applicants contend that the repeated assaults, the

scaldings, the attempted murder and the explosive device are totally

unacceptable levels of violence against the life of prisoners. They

claim that their right to life was inadequately proected by the prison

authorities.

The respondent Government have a duty under Art. 2 (Art. 2) to protect

the life of the applicants against attacks by other prisoners. The

Commission must consider the appropriateness and efficiency of the

measures taken by the prison authorities at HM Prison Magilligan (see

X. v. the United Kingdom, Dec. No. 9348/81).

Article 3 (Art. 3)

The applicants contend that they were exposed to "degrading

treatment". The culmination of physical and mental abuse from

republican prisoners aroused in each of them such feelings of fear and

anguish that they were driven to act against their will or conscience

by going on hunger strike as a last resort. The fact that four of

them had only a few months of their sentence to serve but still went

on hunger strike shows how desperate they were. In this respect they

refer to the decision of the European Court of Human Rights in the

case of Ireland v. the United Kingdom where degrading treatment was

stated to arouse in "their victims feelings of fear, anguish and

inferiority capable of humiliating and debasing them and possibly

breaking their phsyical and moral resistance" (Judgment of 18.1.78,

para. 167).

Article 5, para. 1 (Art. 5-1) (Right to security of person)

The applicants contend that their transfer from HM Prison Maze to HM

Prison Magilligan did not protect their right to security of person

since it is based on an arbitrary policy as regards which prisoners

will be moved, why they are moved and when they are moved.

Article 14 (Art. 14)

The applicants submit that there can be no objective justification for

the difference of treatment of prisoners serving their sentences in HM

Prison Maze and those serving their sentences at HM Prison Magilligan.

The prisoners at HM Prison Maze can enjoy their rights to security of

person and freedom from degrading treatment because the respondent

Government permits de facto separation of loyalist and republican

prisoners. At HM Prison Magilligan, however, there exists a policy of

integrating loyalist and republican prisoners which has resulted in

the applicants being exposed to assaults threatening their lives and

to degrading treatment.

THE LAW

1. The applicants who, at the time of the lodging of their

application were all detained in HM Prison Magilligan, Northern

Ireland, complain that the prison authorities failed to take

sufficient measures to protect them against violent attacks by

republican prisoners. They invoke Arts. 2 (Art. 2), 3 (Art. 3),

5 (Art. 5) and 14 (Art. 14) of the Convention.

2. The respondent Government submit firstly that the application

should be dismissed as an abuse of the right of petition and, in the

alternative, for failure to exhaust domestic remedies.

As regards abuse of the right of petition

3. The Government submit that the present application is part of

an orchestrated campaign for segregation and political status and that

none of the applicants is genuinely concerned about breaches of the

Convention.

4. The applicants, however, submit that they have all been at

risk of serious injury and have attempted, with no success, to seek

redress from the Northern Ireland courts and from the Secretary of

State.

5. The Commission has previously observed that a finding of abuse

might be made in such circumstances if it appeared that an application

was clearly unsupported by evidence or outside the scope of the

Convention (Dec. No. 8317/78, 15.5.80, D.R. 20, p. 44). However, in

the present case, the allegations made by the applicants that they had

been attacked by republican prisoners in Magilligan have been

substantiated to a certain extent by the observations of the

respondent Government. In such circumstances the Commission does not

consider the application to be an abuse of the right of petition.

As regards exhaustion of domestic remedies

6. The Government note that four of the applicants have brought

actions for damages before the Northern Ireland courts concerning the

attacks against them. Since these actions are still pending it is

submitted that the applicants have not exhausted the remedies at their

disposal.

7. The Commission recalls that under Art. 26 of the Convention

(Art. 26) an applicant is required to make "normal use" of remedies

likely to be effective and adequate to remedy the matters of which he

complains (see, for example, Decs. Nos. 5577-5583/72, 15.12.72,

D.R. 4, p. 64). It is furthermore settled that the burden of proving

the existence of adequate and effective remedies lies upon the State

(see Eur. Court H.R., Deweer case, judgment of 27.2.80, para. 26).

8. In the present case the applicants allege that the remedies

available under Northern Ireland law are insufficient in respect of

their complaints. They point out that a court could only award

damages for negligence whereas they seek segregation from republican

prisoners.

9. The Commission notes that the applicants complain firstly

under Art. 2 of the Convention (Art. 2) that the prison authorities

did not take sufficient measures in HM Prison Magilligan to protect

their lives against attack by republican prisoners. They contend that

the only effective protection would have been to segregate loyalist

and republican prisoners. The applicants also allege as part of their

complaint under Art. 3 (Art. 3) that the attacks on them amounted to

inhuman treatment.

10. However four of the applicants have initiated civil

proceedings for negligence before the Londonderry County Court

claiming that the authorities have failed in their duty to take proper

care to protect them against attack. In the Commission's view such a

claim raises in substance the same issues as the applicants' complaint

under Art. 2 (Art. 2) and that aspect of their complaint under Art. 3

(Art. 3) concerning the attacks against them.

11. The applicants further challenge the effectiveness of the

remedy pointing out that the civil bills were issued on 10 January

1985 and have not yet come to trial.

12. The respondent Government reply that the applicants themselves

are responsible for the delay since they have not complied with the

appropriate procedure to have the case listed for a hearing. The

applicants contest this point.

13. The Commission finds that it is not necessary to decide

whether or not the applicants have taken the necessary steps to have

their cases heard since, in its opinion, the delay in question is not

sufficient to render the remedy of a civil action ineffective.

Accordingly an examination of the case as it has been submitted does

not disclose the existence of any special circumstances which might

have absolved the applicants according to the generally recognised

rules of international law from exhausting the domestic remedies at

their disposal. This part of the application must therefore be

dismissed under Art. 27, para. 3 of the Convention (Art. 27-3) for

failure to exhaust domestic remedies.

14. The applicants further complain under Art. 3 of the Convention

(Art. 3) that they have been subjected to inhuman and degrading

treatment; that the prison authorities have failed to protect their

security of person as guaranteed by Art. 5, para. 1 (Art. 5-1), and

that they are victims of discrimination contrary to Art. 14 (Art. 14).

15. The Commission considers, however, that the respondent

Government have not shown that the law of Northern Ireland affords a

remedy in respect of these complaints. In this respect the provisions

of the Convention do not form part of the law of Northern Ireland and

thus it would not have been open to the applicants to have these

complaints considered by a Northern Ireland court. Accordingly these

complaints cannot be rejected for failure to exhaust domestic

remedies.

As regards Article 3 (Art. 3)

16. The applicants make the following complaints under this

provision:

- that the policy of integrating them with republican prisoners and

the attacks they have been subjected to, constitute inhuman treatment;

- that the situation in Magilligan was so grave that they were

compelled to remain in their cells for 23 hours each day and to embark

on a hunger strike. They submit that their action derives from the

policy of integration and is thus the responsibility of the

Government.

17. Art. 3 (Art. 3) states:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

18. The Commission has held that the notion of inhuman treatment

includes at least such treatment as deliberately causes severe

suffering, whether mental or physical, and that an individual's

treatment may be said to be degrading if it grossly humiliates him

before others or drives him to act against his own will or conscience

(see Ireland v the United Kingdom, Comm. Rep. 25.1.76, Yearbook 19,

pp. 745 and 752).

19. However the Court has stressed that "ill-treatment must attain

a minimum level of severity if it is to fall within the scope of

Article 3" (Art. 3). The assesment of this minimum is, in the nature of

things, relative, it depends on all the circumstances of the case,

such as the duration of the treatment, its physical or mental effects

and, in some cases, the sex, age and state of health of the victim

(Eur. Court H.R., Ireland v the United Kingdom, 18.1.78, para. 162).

20. With respect to the applicants' first complaint under this

head the Commission notes that the policy of integration of prisoners

in Northern Ireland was introduced following the withdrawal of special

category status pursuant to a recommendation from the Gardiner

Committee. This Committee had noted, in particular, that the housing

of prisoners in compounds gave rise to substantial problems of

security and discipline within the prison and favoured the

organisation and activities of both loyalist and republican

paramilitary groups (see above p. 6; see also, in this regard, the

Commission's comments in Dec. No. 8317/78, 15.5.80, D.R. 20, pp. 81

and 100).

21. Against this background the Commission cannot consider that

the policy of integration of loyalist and republican prisoners in

Northern Ireland is inherently inhuman or degrading. Nor does it

consider that the Convention guarantees, in principle, a right for

prisoners of different political persuasions to be detained in

segregated conditions (see mutatis mutandis, Dec. No. 8317/78, loc.

cit., pp. 77 and 80).

22. The applicants' second complaint under this head, however,

puts at issue the implementation of this policy in HM Prison

Magilligan. They allege that they were, in effect, compelled as a

measure of self-protection, to remain in their cells and to embark on

a hunger strike.

23. The Commission notes that, in fact, the applicants were not

confined to their cells for 23 hours each day as alleged. The

Government point out in their observations, and it has not been

contested by the applicants in their reply, that all the applicants

worked during week days in the mornings and afternoons. It appears,

however, that they chose to alternate exercise and association periods

with republican prisoners and that from September 1983 until October

1984 they refused all association opportunities.

24. In the Commission's view the applicants freely adopted the

above prison routine and chose to embark on a hunger strike by way of

protest against the policy of integration. The facts do not support

their contention that the situation was so dangerous that they were

compelled to protest in this way. Thus, contrary to their

allegations, the figures provided by the respondent Government

concerning the members of republican and loyalist prisoners in the H

blocks do not reveal a gross imbalance (see above p. 7). Nor is there

any indication that the H blocks were inadequately staffed. On the

contrary special precautions were taken both in terms of staff and

prison routine to guard against the outbreak of interfactional

violence (see above loc. cit.).

25. Moreover an examination of the facts does not reveal such a

general atmosphere of violence that the applicants could legitimately

fear for their lives. In this respect the Commission must have regard

to the common interest that both loyalist and republican prisoners

have, as evidenced by the campaigns for segregation and political

status waged in both the Maze and Magilligan prisons, in achieving

segregation. Indeed it appears that in most parts of the prison a

modus vivendi has been worked out between loyalist and republican

prisoners who apparently work and associate together in safety (see

above pp. 6 - 7). Seen against this background the attacks referred

to by the applicants - which in the cases of Stevenson and McKenzie

are contested by the Government - do not support the picture of

violence painted in their submissions to the Commission.

26. The Commission concludes, therefore, that the actions

undertaken by the applicants were of a voluntary nature for which they

alone are responsible. Their complaints under this provision must

therefore be rejected as manifestly ill-founded within the meaning of

Art. 27, para. 2, of the Convention (Art. 27-2).

As regards Article 5, para. 1 (Art. 5-1)

27. The applicants further complain that the policy of integration

is in violation of their right to security of person as guaranteed by

Art. 5, para. 1 (Art. 5-1), which states that "Everyone has the right

to liberty and security of person".

28. However the Commission has constantly held in its case-law

that the concept of "security of person" must be read in conjunction

with the word "liberty" and provides a guarantee against an arbitrary

interference with personal liberty. In particular, it guarantees that

individuals will be arrested and detained in accordance with the

procedural and substantive requirements of an existing law (Dec.

No. 7050/75, D.R. 19, p. 18). The applicants complain that the policy

of transferring loyalist prisoners to Magilligan is an arbitrary one

and, in this sense, breaches their right to security of person. It is

clear, however, that the transfer of prisoners falls outside the

concept of "security of person" as interpreted by the Commission.

Moreover the Commission has constantly held that the Convention does

not guarantee a right to be detained in a particular prison (see

Campbell and Fell case, Dec. Nos. 7819/77 and 7878/77, Comm. Report,

12.5.82, pp. 107 and 132).

29. It follows that this complaint must be rejected as

incompatible ratione materiæ with the Convention within the meaning of

Art. 27, para. 2, of the Convention (Art. 27-2).

As regards Article 14 (Art. 14)

30. The applicants claim that they are victims of discrimination

contrary to Art. 14 (Art. 14) since there exists de facto separation

of loyalist and republican prisoners in the Maze Cellular Prison.

31. Art. 14 (Art. 14) states:

"The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex,

race, colour, language, religion, political or other opinion, national

or social origin, association with a national minority, property,

birth or other status."

32. In so far as the applicants complain under this provision that

prisoners in Maze Prison are segregated while prisoners in Magilligan

are not, the Commission recalls its finding that the Convention does

not guarantee a right to be detained under segregated conditions (see

above, para. 21). Accordingly no issue of discrimination can arise in

this respect since this provision only provides that the rights set

forth in the Convention shall be secured without discrimination.

33. Finally in so far as the applicants complain that because of

the policy of integration in Magilligan prison they are exposed to a

greater risk of attack than prisoners in the Maze prison the

Commission considers that Art. 14 (Art. 14) does not oblige State

authorities to follow the same policy in dealing with prison disputes

in every prison. Prison authorities must remain free to decide which

measures are appropriate in a particular institution to protect the

lives and bodily integrity of its inmates (see mutatis mutandis Dec.

No. 8317/76, loc. cit. p. 101).

34. The prison authorities in Maze Prison decided not to force

integration of loyalist and republican prisoners because of the

violent response from both groups of prisoners and a history of bitter

and tragic protest since 1976 (see above p. 5).

While there have been episodic incidents of violence in Magilligan

prison the degree of violent reaction has been much less. The

Commission does not consider therefore that the situation in these

prisons is analagous and thus no question of discrimination arises

(see in this respect Eur. Court H.R., Van der Mussele case, judgment

of 23.11.83, para. 46).

35. It follows that this complaint must also be rejected as being

partly incompatible ratione materiæ with the Convention and partly

manifestly ill-founded within the meaning of Art. 27, para. 2, of the

Convention (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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M. AND OTHERS v. THE UNITED KINGDOM

M. AND OTHERS v. THE UNITED KINGDOM

LEXI