AS TO THE ADMISSIBILITY OF

                      Application No. 34486/97

                      by Michael McHugh

                      against Ireland

      The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 6 September 1993

by Michael McHugh against Ireland and registered on 14 January 1997

under file No. 34486/97;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is an Irish national, born in 1966 and currently

serving a sentence in Portlaoise prison, Ireland. The facts of the

case, as submitted by the applicant, can be summarised as follows.

A.     Particular circumstances of the case

      The applicant was arrested on 27 June 1985. He alleges that he

was severely beaten on arrest and later in the police station, that a

policeman tried to murder him later in hospital and that he was framed

and arrested on the basis of false charges.

      He was tried in 1985 by the Special Criminal Court, convicted of

capital murder (of a policeman) and sentenced to death in December

1985. The applicant did not, at that stage, apply to the Special

Criminal Court for leave to appeal to the Court of Criminal Appeal. His

sentence was later commuted by the President to 40 years imprisonment

to be served without remission.

      The applicant had non-contact visits with both of his parents in

July 1985 and December 1986. His father died in December 1988 and the

applicant was refused permission to attend the funeral. His mother is

72 years old and lives in Crossmaglen, Co. Armagh. The round trip

between Crossmaglen and Portlaoise prison is 225 miles approximately.

He last saw his mother in December 1989 (during an open visit in

Portlaoise) when she was driven down by a cousin. The applicant claims

that his mother is now unfit to make this journey and she has submitted

a medical certificate dated 28 August 1996 from Crossmaglen Health

Centre which states that "she is unfit to cope with making the long

journey to Portlaoise to visit her son in prison".

      On 22 March 1991 the applicant's representative applied to the

Special Criminal Court for a Certificate of Leave to Appeal against

conviction. The application was refused although legal aid was granted

for it.

      It appears that the applicant (with the assistance of his

solicitor) subsequently attempted to renew an application for leave to

appeal and to obtain documents he considered relevant in this respect.

By letter dated 30 June 1992 the applicant's solicitor confirmed that

the Criminal Appeals Office had indicated that the transcript of the

trial proceedings should be available by the end of July that year, at

which stage they would be ready to set in train the appeal process.

Letters from the applicant's solicitor dated 22 September 1994 and

13 July 1995 demonstrate continuing attempts made by that solicitor to

obtain access to documentation (relating to the applicant's trial) from

the Chief State Solicitor. The applicant claims that the failure by the

authorities to give his solicitors access to certain trial documents

has frustrated these latter appeal attempts.

      In order to obtain an escorted visit to see his mother, the

applicant applied to the High Court for leave to issue an order of

mandamus by way of judicial review. On 12 February 1996 the High Court

refused his application, stating that "temporary release for this

purpose is entirely a matter within the discretion of the Minister and

this Court has no jurisdiction to intervene". The applicant appealed

to the Supreme Court which court, on 20 May 1996, requested the

attendance of the applicant. The applicant was brought under escort in

June 1996 before the Supreme Court to be heard by that court. On

7 June 1996 the Supreme Court rejected the appeal.

      Having reviewed Section 2 of the Criminal Justice Act 1960 and

Rule 3 of the Prisoners (Temporary Release) Rules 1960 (S.I. No. 167

of 1960), the Supreme Court found that the applicant's application

touched the question of temporary release and that no distinction fell

to be made between temporary release (in the generally understood

meaning of that term) and any form of release under escort - both were

considered to be exclusively a matter within the Minister's discretion.

B.    Relevant domestic law and practice

(a)   Temporary release

      Section 2 of the Criminal Justice Act 1960 provides that the

Minister may make rules providing for temporary release (subject to

such conditions, if any, as may be imposed in each particular case) of

persons serving a sentence of penal servitude or imprisonment. The

rules made under section 2 are contained in the Prisoners (Temporary

Release) Rules, 1960; S.I. No. 167 of 1960. Rule 3(1) thereof provides:

      "The Governor or other officer in charge for the time being of

      a prison may, subject to the directions of the Minister and

      subject to any exceptions which may be specified in the

      directions of the Minister, release temporarily for a specified

      period a person serving a sentence of penal servitude or

      imprisonment in that prison."

      The Sentence Review Group is a non-statutory body established in

1989 in order to advise the Minister for Justice in relation to the

administration of long term sentences. In considering whether to

recommend temporary release, or other concessions, the Sentence Review

Group has to have regard to the interests of the public as a whole and

to the interests of the prisoner and therefore applies the following

criteria:

      i.   Would a release constitute a threat to the community?

      ii.  Is it reasonable to grant temporary release at this

           particular stage in view of the nature of the crime and the

           offender's previous criminal record?

      iii. Does the offender merit temporary release having regard to

           his behaviour while in prison?

      iv.  Are there any compassionate grounds which warrant special

           consideration?

(b)   Section 63 of the Prison Rules 1947

      The rules for the government of prisons are contained in the

Prison Rules 1947 ("the 1947 Rules") and were enacted by the Minister

for Justice by way of Statutory Instrument 320 of 1947. Rule 63 is

entitled "Prisoners' letters" and it reads as follows:

      "Every letter to or from a prisoner shall be read by the

      Governor, or other responsible officer deputed by the Governor,

      and initialled by him; and if the contents are objectionable, it

      shall not be forwarded, or the objectionable part shall be

      erased, according to discretion. The Governor shall use his

           discretion in communicating to or withholding from a

           prisoner at any time the contents of any letter addressed

           to the prisoner, but shall note in his journal every case

           in which he thinks it proper to withhold a letter which,

           according to the rules, might be communicated to or written

           by a prisoner."

(c)   Relevant constitutional rights

      Article 40(3) of the Constitution reads as follows:

      "1. The State guarantees in its laws to respect, and, as far as

      practicable, by its laws to defend and vindicate the personal

      rights of the citizen.

      2. The State shall, in particular, by its laws protect as best

      it may from unjust attack and, in the case of injustice done,

      vindicate the life, person, good name, and property rights of

      every citizen."

      The domestic courts recognise the existence of further personal

rights which are protected by Article 40(3) of the Constitution either

as rights ancillary or corollary to those expressly mentioned in

Article 40(3)(2) or as latent in the expression "personal rights" in

Article 40(3)(1). One of these recognised "unenumerated rights" is the

right to communicate (Attorney General v. Paperlink Limited [1984] ILRM

343 and McKenna v. An Taoiseach, High Court, 8 June 1992) and it may

be that a right of a prisoner to communicate with a member of his/her

family is also to be derived from Article 40(3) (the State (Murray) v.

Governor of Limerick prison, High Court, 2 August 1978). In addition,

certain other rights relating to the family can also be derived from

Article 40(3) (Murray v. Ireland [1985] IR 532).

      The domestic courts also recognise that an inevitable practical

and legal consequence of imprisonment is that a great many of the

constitutional personal rights of the prisoner are for the period of

imprisonment suspended or placed in abeyance (The State (Richardson)

v. the Governor of Mountjoy Prison [1980] ILRM 82). Accordingly, (and

apart from breaches of constitutional rights of such a nature as to

affect the lawfulness of detention for which a habeas corpus action

would be appropriate), the domestic courts recognise the prisoner's

right of access to court to complain of an interference with

constitutional rights which is not necessary to give effect to the

sentence of the court (The State (Fagan) v. Governor of Mountjoy

Prison, High Court, 6 March 1978).

(d)   Relevant case-law regarding prisoners' correspondence

      The High Court in the Kearney case (Kearney v. the Minister for

Justice [1986] IR 116), considered, inter alia, the constitutionality

of Rule 63 of the 1947 Rules further to a plenary summons seeking,

inter alia, a declaration that Rule 63 of the 1947 Rules was

unconstitutional. The plaintiff's principal objection was that his

letters to and from his solicitor were read by the Governor or his

deputy - he submitted that the power to interfere with his right of

communication with his solicitor, relatives and friends could only be

interfered with in exceptional circumstances (for example, proven

security issues) and in such cases he should be present when letters

were opened for inspection.

      The High Court held that the constitutional right to communicate

could be regulated by law and that prisoners retained only those

constitutionally protected rights which did not depend on a person's

liberty and which were compatible "with the reasonable requirements of

the place in which he is imprisoned". The High Court found that the

evidence in the case established that the restriction on the right to

communicate which involved reading all letters to and from prisoners

(including legal correspondence) could reasonably be justified on the

grounds of security and was not therefore unconstitutional. In reaching

this conclusion the High Court noted that in the case of legal

correspondence addressed to and from the prison, "staff are instructed

to read the letter only to the extent necessary to ensure that it

relates to the prisoner's legal affairs. Staff are expected to treat

as confidential all information obtained as a result of the operation

of Rule 63". Moreover, the High Court considered the plaintiff's

suggestion that a prisoner should be present every time his

correspondence was opened as "unreasonably burdensome".

      As regards the Golder and Silver judgments of the European Court

of Human Rights to which the High Court was referred "in passing"

(Eur. Court HR, Golder v. the United Kingdom judgment of

21 February 1975, Series A no. 18 and Silver and Others v. the United

Kingdom judgment of 25 March 1983, Series A no. 61), the High Court

noted that the facts of those cases were very different from those of

the Kearney case. The High Court noted, however, that both cases made

clear that some interference with prisoner's correspondence was

permitted according to the ordinary and reasonable requirements of

imprisonment. Since, however, it was established that certain

correspondence had not been passed on to the prisoner, in breach of

Rule 63, the plaintiff was awarded £25 nominal damages against the

State in that latter respect. The plaintiff did not pursue an appeal

to the Supreme Court.

      The Supreme Court in the case of Hutchinson v. the Department of

Justice and the Governor of Mountjoy Prison (a judicial review

application) was faced with allegations of suppression and censorship

of mail in circumstances where no indication had been given by the

Governor of what mail had been so suppressed or censored and why. The

court pointed out in its judgment of 16 October 1992 that a prisoner

serving a sentence must not be incommunicado and had a general right,

subject to prison discipline, to communicate with persons outside the

prison. It followed that the prisoner was entitled, at least, to

information about what letters had been withheld and why. Accordingly,

the plaintiff was accorded liberty to apply for an order of mandamus

directing the Governor to inform the plaintiff of any letter which had

not been transmitted or censored and to supply short reasons for the

same.

      The Supreme Court in the case of Holland v. the Minister for

Justice and Others also considered a judicial review application for

an order of mandamus based on allegations that a letter written in

February 1993 by the plaintiff on behalf of a fellow prisoner had been

returned to him by the prison authorities. The court, in its judgment

of 9 July 1993, referred to both the above-cited Kearney judgment of

the High Court and its own judgment (cited above) in the Hutchinson

case and went on to point out that the justification for Rule 63 of the

1947 Rules was to ensure that nothing was done to undermine the

security or good discipline of the prison through correspondence.

However, the plaintiff was given leave to apply to the High Court for

an order of mandamus requesting reasons for the failure to transmit the

letter. That application was subsequently rejected by the High Court

on 28 January 1994 and, on appeal, by the Supreme Court on 13 May 1994

because the relevant letter had, by then, been transmitted by the

prison authorities. No further point was taken as regards the delay in

transmission of that letter by either court.

COMPLAINTS

1.    The applicant complains about the refusal of the authorities to

allow him an escorted visit to Dundalk to see his mother whom he has

not seen since December 1989 and who is unfit to make the journey to

his prison. He invokes Articles 8 and 11 of the Convention.

      He also submits that other prisoners in the same position as he

obtain temporary leave and escorted visits and that he is, contrary to

Article 14 of the Convention in conjunction with Article 8, being

singled out for unfair treatment in this respect.

      The applicant also complains about interference with his

correspondence by the prison authorities.

2.    The applicant also complains that a "tribunal" complying with the

requirements of Article 6 para. 1 of the Convention should have decided

the question of his visit entitlements. He complains that he had no

legal aid for his application in this respect.

3.    The applicant alleges that he was beaten on arrest in June 1985

and immediately thereafter. He also claims that a policeman tried to

murder him in hospital when recovering from the injuries the police had

allegedly inflicted on him during his arrest.

      He also complains that his trial was a farce, that fabricated

statements formed the basis of his conviction, that his lawyers were

part of the conspiracy and that he was framed. He considers that the

Special Criminal Court is not a real court.

THE LAW

1.    The applicant complains about the refusal by the authorities to

allow him an escorted visit outside of the prison to see his mother.

He invokes Articles 8 and 11 (Art. 8, 11) of the Convention. The

Commission considers that this complaint falls to be considered under

Article 8 (Art. 8) of the Convention.

      The applicant submits that his mother is too ill to make the long

trip to Portlaoise, that he has only served approximately 13 years of

a 40 year sentence, that he last saw his mother in December 1989 and

that his mother is already 72 years old. He would accept an escorted

visit (even in handcuffs) to a large military barracks in Dundalk which

is just before the border with Northern Ireland and which is not too

far from where his mother lives. This would respond to the authorities'

alleged concern about Irish policemen crossing the border into Northern

Ireland. He points out that he was brought before the Supreme Court in

Dublin in June 1996 from Portlaoise (which is approximately half the

distance of the trip to Dundalk) and that there is no justification for

not bringing him approximately 60 miles further to Dundalk to see his

mother.

      He also complains under Article 14 (Art. 14) of the Convention

that other prisoners in the same position as him have obtained the

necessary facilities to allow such visits and even longer periods of

unescorted temporary release.

      He further complains about interference with his correspondence,

without invoking in particular any Article of the Convention. Many of

the applicant's letters to the Commission, together with certain copy

letters from his solicitors which he has submitted, are stamped

"Censored". The Commission considers that this complaint also falls to

be considered under Article 8 (Art. 8) of the Convention, which

Article, insofar as relevant, reads as follows:

      "1. Everyone has the right to respect for his private and family

      life, ... and his correspondence.

      2. There shall be no interference by a public authority with the

      exercise of this right except such as is in accordance with the

      law and is necessary in a democratic society ... for the

      prevention of disorder or crime, ... or for the protection of the

      rights and freedoms of others."

      Article 14 (Art. 14), insofar as relevant, reads as follows:

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

      Convention shall be secured without discrimination on any ground

      ..."

      The Commission is not required to decide whether or not the facts

alleged by the applicant, in respect of these complaints, disclose any

appearance of a violation of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

      In this respect, the Commission notes that the Supreme Court

considered that the applicant's request for an escorted visit fell

within the scope of Section 2 of the Criminal Justice Act 1960 and

Rule 3 of the Prisoners (Temporary Release) Rules 1960 (S.I. No. 167

of 1960) and further that a refusal of such a visit was exclusively a

matter within the Minister's discretion. The Commission further notes

that all correspondence to and from a prisoner must be opened and read

pursuant to section 63 of the 1947 Rules and that the suppression and

censorship of correspondence is also foreseen by that Rule.

      Accordingly, insofar as the applicant challenges the refusal of

temporary release and the interference with his correspondence falling

within the scope of the relevant applicable domestic rules, the

Commission recalls that in a legal system which provides constitutional

protection for fundamental rights, it is incumbent on the aggrieved

individual to test the extent of that protection and, in a common law

system, to allow the domestic courts to develop those rights by way of

interpretation (No. 18670/91, Dec. 1.12.93, unpublished). In this

respect, it is recalled that a declaratory action before the High

Court, with a possibility of an appeal to the Supreme Court,

constitutes the most appropriate method under Irish law of seeking to

assert and vindicate constitutional rights (No. 15141/89, Dec. 15.2.90,

D.R. 64, p. 203; No. 23156/94, Dec. 31.8.94, unpublished and

No. 28154/95, Dec. 2.7.97, unpublished).

      In the present case, the Commission notes that the applicant has

taken no declaratory action by way of Plenary Summons joining the

Attorney General claiming that the refusal of escorted visits in his

circumstances and that interferences with his correspondence pursuant

to Rule 63 of the 1947 Rules violate his constitutional rights.

      As to the effectiveness of the proposed constitutional action as

regards interference with correspondence, the Commission notes the

judgment of the High Court in the Kearney case. However, the Commission

also notes that the Supreme Court did not pronounce on the issue in

that case and has not yet ruled on the constitutionality of Rule 63 of

the 1947 Rules. It is further noted that the Kearney judgment was

handed down more than 12 years ago. Furthermore, the Hutchinson and

Holland judgments of the Supreme Court (16 October 1992 and

9 July 1993, respectively) were proceedings for judicial review.

Accordingly, any observations of the Supreme Court on the

constitutionality of Rule 63 of the 1947 Rules in those judicial review

cases would have been obiter dicta and would not, therefore, be binding

on any subsequent Supreme Court before which the constitutionality of

Rule 63 was raised in properly constituted constitutional proceedings.

      Moreover, while the Irish courts cannot directly apply the

judgments of the European Court of Human Rights since the Convention

has not been incorporated into domestic law, the Commission notes the

reference to certain case-law of that Court in the High Court judgment

in the Kearney case. In this respect, the Commission recalls that since

that judgment there have been further developments in the jurisprudence

under the Convention and refers, in particular, to the Campbell

judgment decided six years after the Kearney case (Eur. Court HR,

Campbell v. the United Kingdom judgment, loc. cit.) and specifically

to paragraphs 44-54 thereof.

      Insofar as the applicant alleges interferences with his

correspondence which were not authorised by Rule 63 of the 1947 Rules,

the Commission observes that judicial review proceedings were available

to him to challenge such interferences and, insofar as reasons were not

given for stopping or censoring correspondence, to obtain such reasons

(Hutchinson v. the Department of Justice and the Governor of Mountjoy

Prison, loc. cit.). The applicant has not issued any such proceedings.

      It is true that in carrying out their obligations under Rule 63

of the 1947 Rules, the prison authorities have access to prisoners'

legal correspondence. However, in view of the purpose of constitutional

proceedings and since the nature of those proceedings would lead to

submissions of a mainly legal character, the Commission does not

consider that the fact that the authorities have access to his legal

correspondence would render a constitutional action ineffective. As to

whether the judicial review proceedings could be considered ineffective

for the same reason, the Commission notes the successful judicial

review proceedings of Mr. Holland outlined above (judgment of the

Supreme Court of 9 July 1993) in a case where the authorities similarly

had access to Mr. Holland's legal correspondence (No. 24827/94,

Dec.14.4.98, not yet published).

      Moreover, the Commission does not consider that there exist any

special circumstances in the present case which would, in accordance

with the generally recognised rules of international law, absolve the

applicant from the obligation to exhaust a domestic remedy

(No. 14556/89, Dec. 5.3.91, D.R. 69, p. 261). The present case can be

distinguished from the O'Reilly case against Ireland (No. 24196/94,

Dec. 22.1.96, D.R. 84-A, p. 72), the O'Reilly case concerning a

complaint under Article 5 para. 5 (Art. 5-5) and a choice which Mrs

O'Reilly "reasonably" made between different domestic remedies open to

her.

      Accordingly, the Commission considers that the applicant's

complaints as regards the refusal of an escorted visit outside of the

prison to see his mother together with his complaint in relation to

interferences with his correspondence are inadmissible pursuant to

Article 27 para. 3 (Art. 27-3) of the Convention on grounds of non-

exhaustion of domestic remedies as required by Article 26 (Art. 26) of

the Convention.

2.    The applicant also complains that a "tribunal" complying with the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention should

have decided the question of his visit entitlements. He also submits

that he should have had legal aid for applications as regards visit

entitlements.

      Article 6 para. 1 (Art. 6-1), insofar as relevant, reads as

follows:

      "1. In the determination of his civil rights ... or of any

      criminal charge against him, everyone is entitled to a fair and

      public hearing within a reasonable time by an independent and

      impartial tribunal established by law. ..."

      The Commission considers, as did the domestic court, that the

applicant's request for an escorted visit amounted to a request for

temporary release.

      However, the Commission recalls its constant case-law according

to which proceedings concerning the execution of a sentence imposed by

a competent court, including proceedings on the grant of conditional

release, do not fall within the scope of Article 6 para. 1 (Art. 6-1)

of the Convention. They concern neither the determination of "a

criminal charge" nor the determination of "civil rights and

obligations" within the meaning of this provision (see, for example,

No. 16266/90, Dec. 7.5.90, D.R. 65, p. 337). Even assuming that for the

purposes of this complaint the applicant's allegations as regards the

Special Criminal Court (made in relation to the proceedings before that

court and outlined below) can be considered in this context, bearing

in mind the date of his trial and of the introduction of his

application, the Commission considers that the applicant has not

demonstrated that the Special Criminal Court constituted anything other

than a competent court for these purposes (No. 8299/78, Dec. 10.10.80,

D.R. 22, p. 51 and No. 12839/87, Dec. 9.12.88, D.R. 59, p. 212).

      The Commission therefore finds that these complaints do not fall

within the ambit of Article 6 para. 1 (Art. 6-1) and they must be

rejected, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention,

as incompatible ratione materiae with the provisions of the Convention.

3.    The applicant alleges that he was beaten on arrest in June 1985

and immediately thereafter. He alleges that a policeman tried to murder

him in hospital when recovering from those injuries earlier inflicted

by the police. The applicant also makes a number of vague and general

allegations as regards the conduct of his trial - he submits that his

trial was a farce, that fabricated statements formed the basis of his

conviction, that his lawyers were part of the conspiracy and that he

was framed. He also submits that the Special Criminal Court before

which he was convicted is "not a real court" and that it was set up to

"smash republicanism".

      The Commission notes that the applicant did not apply for leave

to appeal against his conviction until 1991. It further notes that the

applicant has submitted material to the Commission relating to the

consideration of further appeal proceedings after 1991 and that the

applicant submits that he has not been able to pursue a further appeal

application due to the authorities' failure to provide access to

certain relevant documents.

      However, even assuming that the applicant had no effective

domestic remedy to exhaust as regards the alleged assaults and his

trial, the Commission considers that these complaints have been

introduced outside the six-month time-limit set down by Article 26

(Art. 26) of the Convention since the applicant refers to the assaults

and his trial as having taken place in 1985 and his application was not

introduced before the Commission until September 1993.

      Accordingly, the Commission considers that these complaints are

inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

      M.F. BUQUICCHIO                          M.P. PELLONPÄÄ

         Secretary                                President

   to the First Chamber                     of the First Chamber