Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27847/95

by Brian HOSIE

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 23 March 1995 by

Brian Hosie against the United Kingdom and registered on 11 July 1995

under file No. 27847/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

30 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1950, is a British national residing in

Perth. He is currently serving a sentence of life imprisonment in

Scotland. Before the Commission he is represented by

Mr Douglas Thomson, a solicitor practising in Fife.

At the time of introducing his application the applicant was

detained at Perth Prison. The present application concerns the

conditions of his detention at Shotts Prison, where he was previously

detained.

The facts of the case, as submitted by the parties, may be

summarised as follows.

From September 1987 until October 1989 the applicant was detained

at Shotts Prison, A Hall.

Following a serious disturbance at the prison on

7 September 1988, in the course of which the prisoners took over the

Textile Workshop and caused £50,000 worth of damage, the prison

authorities placed the prison on a lockdown regime in order to regain

total control of the prison. This involved a removal of normal

association for the prisoners, who were confined to their cells. Food

was delivered to cells instead of the communal dining room, and

attendance of prisoners at work, recreation and education activities

ceased. The prison authorities aimed to restore the prison to normal

by instituting a system of progressively more relaxed regimes in the

different halls. The prisoners posing the least problems were placed

in C Hall, where life was returned to normal as quickly as possible,

with limited association introduced almost immediately. D Hall had a

regime not quite as advanced as C, but was also being returned to

normal, while in B Hall there was a more restricted regime for those

prisoners about whose intents and behaviour there were still

considerable doubts. A Hall was used to house those prisoners who had

been involved in the disruption or who were suspected of incitement or

other subversive activity. Within A Hall there was a sub-division into

three levels or "flats" with slightly differing degrees of restriction.

Prisoners in A Hall were transferred between the flats and eventually

to another more progressive hall as their behaviour or attitude were

seen as improving.

The applicant had been detained in the bottom flat in A Hall

prior to the events of 7 September 1988 and the imposition of the

lockdown regime thereafter.

The applicant was not, however, considered to be involved in the

disruption or in any incitement or subversive activities. He was

therefore suitable to be upgraded to the more relaxed regime in B Hall.

Attempts appear to have been made by the prison authorities to

persuade him to move to B Hall, but they were declined. In particular,

it appears from a minute dated 22 May 1989 by Mr Smith, a prison

officer, to the Governor of Shotts Prison that, between 20 October 1988

and 22 May 1989, the prison authorities offered the applicant the

chance of transferring to B Hall on 8 occasions, but the applicant

declined all of those offers. He continued to do so throughout the

whole period he was detained at Shotts Prison.

As regards exercise, the lack of suitable facilities for

exercising prisoners in small groups resulted in the authorities

offering indoor exercise in the wing corridor (an area of 29 by

2 metres) in groups of 2-3 per day to prisoners in A Hall. As the

regime was relaxed, exercise was given in groups of 3-5 prisoners. No

complete prison records remain of the exercise periods afforded to the

applicant.

The applicant submits that during the lockdown period he was not

allowed to have exercise for more than thirty minutes a day.

A minute for the period 1 January to 22 May 1989 shows that the

applicant was offered inside exercise daily but refused this on

14 occasions. Outside exercise recommenced for A Hall on 22 May 1989

and was offered on a daily basis.

During the lockdown period, food was delivered at meal times to

the prisoners in their cells. The applicant contends that the food was

barely fit for human consumption. The Government admit that there were

initially many complaints about food arriving cold, but heated food

trolleys arrived in late 1988 and the vast majority of complaints

ceased.

On 21 July 1989, as a result of assaults on staff and

disturbances, special arrangements as to the delivery of the food in

A Hall were introduced. The applicant alleges that officers were

obliged to wear protective clothing when entering the cell areas. In

order to receive food, the prisoners had to face the bars of their cell

and place their hands on the bars whilst prison officers entered in

riot gear and placed the food in the cell. Considering these

requirements humiliating, the applicant refused to comply with them.

Consequently, between 21 and 24 July 1989, the applicant did not

receive any food at all. The special food delivery regime ceased on

24 July 1989.

Throughout the whole period of the restricted regime, visiting

time was reduced from one hour to thirty minutes and was limited to two

visits per month.

According to the prison records, the applicant only received

three visits during the whole of this period and this appears to have

been his choice.

During the lockdown period two prisoners in B Hall committed

suicide.

The applicant contends that these events as well as the

restrictions to which he was submitted, caused him insomnia,

irritability, anger and "preoccupation with his own mortality".

In January 1991 the applicant submitted a claim for damages to

Hamilton Sheriff Court in respect of the physical and mental discomfort

which he allegedly suffered as a result of the 'intolerable conditions'

to which he was subjected during the lockdown period between

7 September 1988 and 2 October 1989.

On 9 January 1995 the Sheriff dismissed the applicant's claim.

Insofar as the applicant was claiming damages for the deterioration of

his physical condition, the judge pointed out that the applicant had

not suffered any physical injury, but only claimed to have suffered

discomfort. The judge also noted that the applicant refused on a number

of occasions to comply with the prison officers' requirements as to the

delivery of food in the cell; therefore, between 21 and 24 July 1989,

the prison authorities were not in a position to deliver food to the

applicant. The judge considered further that the applicant had not only

failed to provide any particulars of his mental condition, but had also

failed to show that the effects upon his physical and mental condition

of restricted exercise, food and visits were serious. As to the effects

of the suicides of some prisoners on his mental condition, the judge

noted that there was no proof that the applicant was suffering from a

psychiatric illness.

In a psychiatric report dated 5 April 1993, Dr. J.J. Shaw, after

an interview with the applicant on 29 March 1993, stated that,

following the period of segregation at Shotts Prison, the applicant had

indeed suffered some minor psychological symptoms, but these were

short-lived and had had no longstanding effect on his personality

development or psychological wellbeing.

COMPLAINTS

The applicant complains that the system of lockdown to which he

was subjected constitutes inhuman treatment and is therefore contrary

to Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 March 1995 and registered

on 11 July 1995.

On 16 October 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

30 January 1997, after an extension of the time-limit fixed for that

purpose. The applicant did not submit observations.

THE LAW

The applicant complains that the system of lockdown to which he

was subjected constitutes inhuman treatment and is therefore contrary

to Article 3 (Art. 3) of the Convention, which provides as follows:

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

treatment or punishment."

The Government submit in the first place that the applicant has

failed to exhaust domestic remedies as required by Article 26 (Art. 26)

of the Convention, since he did not avail himself of the offer to move

to another hall. Furthermore, he did not use the internal channels of

complaint such as a complaint to the prison Governor, the Visiting

Committee, a visiting officer of the Secretary of State or the

Secretary of State himself. The Government submit that the applicant

could have made a complaint to the Parliamentary Commissioner for

Administration. He could also have taken judicial review proceedings

against the Secretary of State or the prison authorities or have

appealed against the 9 January 1995 decision to the Court of Session

and from there to the House of Lords. However, the Government consider

that such an appeal might have been unsuccessful, having regard to

certain aspects of the applicant's case.

As regards the merits, the Government admit that during the

period from 7 September 1988 until 22 May 1989, although the applicant

was entitled to one hour's exercise per day in the open air in clement

weather, the prison authorities failed to give him his full

entitlement. They point out that this was due to logistical problems,

as prisoners could only safely be exercised two or three at a time, and

the daily routine of mealtimes etc. allowed only a period of

approximately two hours in the morning and the same in the afternoon

when the exercise could take place. Consequently, the main outside yard

could be used to exercise only between eight and twelve persons per

day. The Government point out also that there were occasions when the

applicant did not avail himself of the opportunity for such exercise

as was offered to him in that period.

The Commission recalls that Article 26 (Art. 26) of the

Convention requires only the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach. It is furthermore established that the burden of

proving the existence of available and sufficient domestic remedies

lies upon the State invoking the rule (cf. Eur. Court HR, De Jong,

Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984,

Series A no. 77, p. 18, para. 36, and Nos. 14116/88 and 14117/88,

Sargin and Yagci v. Turkey, Dec. 11.5.89, D.R. 61, pp. 250, 262).

The Commission further points out that where there is a choice

of various domestic remedies open to the applicant, Article 26

(Art. 26) must be applied to reflect the practical realities of his

position in order to ensure the effective protection of the rights

guaranteed (No. 9118/80, Dec. 9.3.83, D.R. 32, p. 159). In addition,

an applicant who has used a remedy which is apparently effective and

sufficient cannot be required to try others,, which are available, but

probably ineffective (No. 9248/81, Dec. 10.10.83, D.R. 34, p. 78; No.

12609/86, Dec. 8.3.90, D.R. 64, p.84).

The Commission takes the view that in this case the applicant,

by submitting a claim for damages to Hamilton Sheriff Court in respect

of his alleged physical and mental discomfort, has satisfied the

exhaustion of domestic remedies condition according to the generally

recognised rules of international law.

As regards the Government's submission that the applicant failed

to accept offers of a move to another hall, the Commission considers

that this cannot be relied on as a ground of non-exhaustion, although

it is relevant to the substance of the applicant's complaint.

In these circumstances, the Commission finds that the application

cannot be declared inadmissible for non-exhaustion of domestic remedies

under Article 27 para. 3 (Art. 27-3) of the Convention.

The Commission must therefore examine the substance of the

applicant's complaint regarding the conditions of his detention during

the lockdown regime.

The Commission recalls in the first place the interpretation of

the concept of inhuman or degrading treatment by both the Commission

and the European Court of Human Rights.

According to the established case-law of the Court, "ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3)" and "the assessment of this

minimum is, in the nature of things, relative ..." (Eur. Court HR,

Ireland v. the United Kingdom judgment of 18 January 1978, Series A no.

25, p. 65, para. 162). As regards degrading treatment the Court was of

the view that "in order for a punishment to be 'degrading' and in

breach of Article 3 (Art. 3), the humiliation or debasement involved

must attain a particular level and must in any event be other than the

usual element of humiliation" associated with imprisonment after a

criminal conviction. An examination of such matters, being relative,

"depends on all the circumstances of the case and, in particular, on

the nature and context of the punishment itself and the manner and

method of its execution" (Eur. Court HR, Tyrer v. the United Kingdom

judgment of 25 April 1978, Series A no. 26, p. 15, para. 30).

The Commission also recalls in this context that the segregation

of a prisoner from the prison community does not in itself constitute

a form of inhuman or degrading treatment. Whilst prolonged removal from

association with others is undesirable, whether such a measure falls

within the ambit of Article 3 (Art. 3) of the Convention depends on the

particular conditions, the stringency of the measure, its duration, the

objective pursued and its effects on the person concerned. The removal

of a prisoner from association with fellow inmates for security,

disciplinary or protective reasons does not normally amount to inhuman

treatment or punishment (cf. e.g. Bouajila v. Switzerland, Comm. Report

1.7.93, paras. 102-104; No. 20560/92, Dec. 30.8.94, unpublished).

The Commission recalls that it found that the lockdown regime

introduced in September 1988 at Shotts Prison did not amount to

treatment contrary to Article 3 (Art. 3) of the Convention in respect

of the applicant in that case (see No. 18942/91, Dec. 6.4.93,

unpublished), whose conditions did not substantially differ from the

ones at issue in the present case.

In the present case, the Commission notes that between September

1988 and October 1989 the applicant was held in a lockdown regime,

being subjected to restrictive measures, as were all other inmates of

A Hall.

The Commission finds that the lockdown regime as described above

was of a stringent nature. It notes however that it was necessitated

by a series of disruptions in the prison, culminating in a riot on

7 September 1988 which posed grave problems of disorder and disruption

and which resurfaced in July 1989. The prison instituted a progressive

system aimed at bringing the prison back to a normal routine and the

regime in A Hall improved during the applicant's detention there. The

Government have placed weight on the fact that the applicant refused

offers to move to other less restrictive parts of the prison. The

applicant has not denied this. The Commission has examined the report

by the psychologist who saw the applicant after his detention under the

lockdown conditions. There is no indication that the restrictions to

which the applicant was subject have caused serious damage to his

physical or mental health. As regards the period during which the

applicant did not receive any food (between 21 and 24 July 1989), the

Commission notes, on the one hand, that the applicant does not allege

that he was not offered food at all and, on the other hand, that this

situation was created by the applicant himself, as he refused to comply

with the requirements as to the delivery of food. Furthermore, the

Commission considers that the above-mentioned measures were necessary

following an incident in which prisoners had assaulted prison officers.

The Commission also notes that the applicant's complaints about

the conditions are weakened by his own refusal to accept a move away

from them. Furthermore, it observes that the applicant continued to

receive visits and a limited daily exercise period with other prisoners

and was not denied contact with other inmates.

Having regard to the above elements, the Commission finds that

the conditions which the applicant experienced did not attain the level

of ill-treatment proscribed by Article 3 (Art. 3) of the Convention.

It follows that the application must be rejected as being

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

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HOSIE v. THE UNITED KINGDOM

HOSIE v. THE UNITED KINGDOM

LEXI