Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23995/94

by Elizabeth DOWD and Bridget McKENNA

against the United Kingdom

The European Commission of Human Rights sitting in private on

28 November 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. M. DE SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 February 1994

by Elizabeth DOWD and Bridget McKENNA against the United Kingdom and

registered on 28 April 1994 under file No. 23995/94;

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 first applicant is an Irish citizen born in 1914 and resident

in Kerry. The second applicant also an Irish citizen was born in 1952

and is resident in Kerry. The applicants have had a previous

application before the Commission, No. 21596/92, declared inadmissible

on 1 September 1993.

The applicants are represented before the Commission by Ms.

Mairin Higgins of the Irish Prisoners' Support Group, London.

The facts as submitted by the applicants, and as may be deduced

from the documents, may be summarised as follows.

a. Particular circumstances of the case

The first applicant is the mother and the second applicant the

sister of Brendan Dowd who was arrested in 1975 in England and

convicted in relation to Republican-associated offences for which he

received 3 discretionary life sentences. He is detained as a Category

A (High Risk) prisoner.

By petition dated 19 February 1991, Brendan Dowd, who was born

in Ireland, requested that he serve his prison sentence in Northern

Ireland in order to be near his family and friends who almost all

reside in Ireland.

This request for transfer was refused by the Secretary of State

on 12 February 1992 on the ground that Brendan Dowd fell outside the

requisite criteria for a transfer since he had no links with Northern

Ireland and did not intend to settle there on release.

Further petitions were made on 18 and 19 March 1992. By response

dated 9 April 1992, Brendan Dowd was again refused on the basis that

he had no links with Northern Ireland and had no intention of settling

there. Brendan Dowd made further requests for transfer in March 1993

By letter dated 5 July 1994, the Home Office informed Brendan

Dowd that his request for permanent or temporary transfer to Northern

Ireland was refused on the basis that his family was not resident there

and that he would benefit on transfer from a substantial reduction in

the time served in prison.

The first applicant is now 80 years old and suffers, inter alia,

from diabetes, arthritis and a leg ulcer which renders her unable to

walk without difficulty. She has suffered 30% loss of eyesight and

received medical advice that the journey to England to visit her son

would adversely affect her health. She continued nonetheless to visit

until, after a visit in July 1991, she was forced to accept that it was

no longer possible. The first applicant also received no financial

assistance for visits which cost approximately £500 each.

The second applicant has visited her brother in prison twice

since his arrest. She suffers from a severe form of travel sickness

which leaves her ill for days after an air or sea journey and therefore

renders her unable to visit save in the most compelling circumstances

as for example in 1981 after their father's death.

Problems with regard to visiting are exacerbated by the policy

of transferring Republican prisoners regularly and without notice from

prison to prison throughout the British mainland. Brendan Dowd has been

transferred 13 times.

b. Relevant domestic law and practice

Following an interdepartmental review, a report was issued on 23

November 1992 concerning the issue of transfers of prisoners to

Northern Ireland prisons. Its recommendations, which were accepted and

submitted to Parliament, stated that a system of extended temporary

transfers would be instituted.

Since late 1993, a number of prisoners who previously lived in

Northern Ireland, including those of Category A classification, have

been transferred on a temporary basis from prison in mainland United

Kingdom to prison in Northern Ireland.

COMPLAINTS

1. The applicants complain of the refusal to transfer Brendan Dowd

to a prison in Northern Ireland. Almost all his family reside in

Ireland and the cost and difficulty of travelling to mainland United

Kingdom is prohibitive. Visitors have to travel over 1000 miles, find

accommodation and transport to the prison which, if remote and

inaccessible, requires the use of taxis. No State assistance is given

for prison visits to England to see Brendan Dowd. The estimated cost

of a visit by the first applicant was £500. The trip for the first

applicant was arduous and gruelling and now it is unlikely that she

will see her son again while he is held in mainland United Kingdom.

The applicants submit that there is no reasonable justification

for the refusal of transfer: there is plenty of accommodation in

Northern Irish prisons; in view of recent transfers of Category A

prisoners, security considerations cannot justify refusing transfer

Brendan Dowd and if he was transferred he would not benefit from the

different rules of remission since he is a life prisoner.

The applicants invokes Article 8 of the Convention in respect of

the above.

2. The applicants complain of discriminatory treatment on the ground

of Brendan Dowd's status as an Irish Republican prisoner. They submit

that there have often been transfers of Category A prisoners who are

not Republicans and the use of Category A is constant in the case of

Repubicans. The constant amendment of the applicable transfer criteria

discloses a policy of blanket refusal of transfers for Republicans.

3. The applicants complain that the refusal of transfer is an

additional punishment above the sentence imposed by the courts and

amounts to inhuman and degrading treatment contrary to Article 3 of the

Convention.

4. The applicants finally invoke Article 13 of the Convention,

alleging that they have no effective remedy in respect of their

complaints.

THE LAW

1. The applicants complain of the refusal to transfer Brendan Dowd,

their son and brother respectively, to a prison in Northern Ireland

which would facilitate their visits and the maintenance of their family

relationships. They invoke Article 8 (Art. 8) of the Convention which

provides:

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

family life, his home 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 in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission recalls that it considered a previous complaint

by the applicants in No. 21956/93 which related to the refusal of

transfer. In its decision dated 1 September 1993, the applicants'

complaints under Articles 8 (Art. 8) of the Convention were rejected

as manifestly ill-founded. However, pursuant to Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention, the Commission must reject any

petition which is substantially the same as a matter which has already

been examined unless it contains relevant, new information.

The Commission notes that the applicants make the same complaints

and rely on the same facts as contained in the earlier application.

Other additional facts and arguments are also included, in particular,

the recent adoption of a policy of transferring prisoners, even of

Category A security classification, to Northern Ireland on a temporary

basis. The applicants argue, inter alia, that this indicates that the

alleged security justification for refusing transfers to Irish

Republican prisoners cannot be maintained, and point out that temporary

transfers involve moving the prisoners there and back.

The Commission finds however that the matters raised by the

applicants do not constitute relevant, new information within the

meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention

having regard to the grounds on which the Commission declared the

applicants' previous complaints inadmissible.

It follows that the applicants' complaints must be rejected as

substantially the same pursuant to Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention.

2. The applicants complains of discriminatory treatment as relatives

of a Republican prisoner.

Article 14 (Art. 14) of the Convention provides:

"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."

The Commission recalls that it dismissed a previous complaint

under this provision in the applicants' earlier application (No.

21596/93). As above, the applicants have referred to alleged new facts

and arguments challenging the reasoning in the Commission's previous

decision which referred to security considerations in finding that

Brendan Dowd could not be considered in an analogous position to other

prisoners for the purposes of Article 14 (Art. 14) of the Convention.

The applicants complain that as a Republican prisoner Brendan

Dowd, and thereby themselves as his relatives, have been punished as

regards the policy of transfers. It is alleged that, save for rare and

special cases, there was a blanket refusal on transfers of Republican

prisoners whereas non-Republican prisoners, even of Category A status,

would generally be granted transfers to and from Northern Ireland.

The Commission notes that these allegations were made in

substance in the applicants' previous application. In these

circumstances, the Commission is not satisfied that the applicants'

arguments concerning discrimination constitute relevant, new

information within the meaning of Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention.

It follows that the part of the application must be rejected as

being substantially the same pursuant to Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention.

3. The applicants complain that the refusal to transfer amounts to

inhuman and degrading treatment contrary to Article 3 (Art. 3) of the

Convention which provides:

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

treatment or punishment."

The case-law of the Convention organs establishes that ill-

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

within the scope of Article 3 (Art. 3) of the Convention. Further, the

Court has held that the suffering occasioned must attain a certain

level before treatment can be classified as a inhuman. The assessment

of that minimum is relative and depends on all the circumstances of the

case, such as the duration of the treatment and its physical or mental

effects (see eg. Eur. Court H.R., Ireland v. the United Kingdom,

judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).

The Commission has examined the complaint as submitted by the

applicants. It finds that it fails to disclose treatment of such

severity as to fall within the scope of Article 3 (Art. 3) of the

Convention. It follows that this part of the applicantion must be

rejected as manifestly ill-founded within the meaning of Article 27

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

4. The applicants also invoke Article 13 (Art. 13) of the

Convention, which provides that :

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23,

para. 52).

The Commission finds that the applicants cannot be said, in light

of its findings above to have an "arguable claim" of a violation of

their Convention rights.

It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President to the Commission

(M. DE SALVIA) (C.A. NØRGAARD)

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DOWD AND McKENNA v. THE UNITED KINGDOM

DOWD AND McKENNA v. THE UNITED KINGDOM