Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20035/92

by Daniel RAPHAIE

against the United Kingdom

The European Commission of Human Rights sitting in private on

2 December 1993, the following members being present:

MM. C.A. NØRGAARD, President

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

D. SVÁBY

Mr. H.C. KRÜGER, 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 26 January 1992

by Daniel RAPHAIE against the United Kingdom and registered on 25 May

1992 under file No. 20035/92;

Having regard to :

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

Commission;

- the observations submitted by the respondent Government on

17 December 1992 and the observations in reply submitted by the

applicant on 29 April 1993;

- the parties's further pre-hearing observations submitted on 18

November 1993;

- the hearing of the parties on 2 December 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in Iran in 1960, who at

the time of lodging his application was detained in H.M. Prison

Wayland, Norfolk. He is represented before the Commission by Messrs.

Budd Martin Burrett, Solicitors practising in Chelmsford, Essex.

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

be summarised as follows:

A. The particular circumstances of the case

On 12 October 1988 the applicant was arrested and remanded in

custody at H.M. Prison Wormwood Scrubs. He was charged with supplying

heroin and handling stolen goods. He was detained in Wormwood Scrubs

until 5 December 1988, when he was released on bail. Some eight months

later, on 24 August 1989, he was convicted and remanded in custody at

H.M. Prison Brixton. On 1 September 1989 he was sentenced to five

year's imprisonment on the charge of supplying heroin and nine months'

imprisonment on various handling charges, to be served concurrently.

He was transferred from Brixton to H.M. Prison Wandsworth six days

later, on 7 September 1989, and remained there for about three months,

until his transfer to a training prison on 11 December 1989.

The application arises out of the conditions of detention which

the applicant experienced at the three prisons: Wormwood Scrubs,

Brixton and Wandsworth. The applicant describes these conditions as

follows:

In Wormwood Scrubs Prison:

a. He was confined to his cell approximately 23 hours a day.

b. The cell was overcrowded. Although it was designed for one

person only, he had to share his cell with one or two inmates.

c. There was no integral sanitation in the cell. He had to use a

chamber-pot in the presence of other inmates and vice-versa. The

chamber-pot had no cover and therefore the cell had a strong

odour. He had to eat in his cell. At various stages of the day,

prisoners were unlocked from their cells for some 5-10 minutes

in order to empty and clean their chamber-pots and to fill their

washing bowls.

In Brixton Prison he experienced similar conditions, and in particular:

a. He was held in 'F' wing, the psychiatric wing, with no reason

being given.

b. The cell was 2.1m x 3.1m (6.5²), and 2.7m high.

c. The emptying of the cell chamber-pot and the washing of plates

and cutlery were performed at the same time. Consequently the

applicant had to take his eating utensils to the toilet with him

whilst cleaning out his chamber-pot.

In Wandsworth Prison he experienced similar conditions, and in

particular:

a. His cell was 2.1m x 3.9m (8.2m²), and 2.4m high.

b. Cockroaches, rats and cats were present in the prison.

c. He was permitted only some 45 minutes daily exercise.

On 30 March 1991 the applicant wrote a letter to the Secretary

of State together with a "fact sheet". In this "fact sheet", he made

certain of the above general complaints about conditions at Wormwood

Scrubs, Brixton and Wandsworth Prisons. He also made complaints about

a few specific incidents which he claimed occurred at the three

prisons. As he received no reply, he sent two reminders to the

Secretary of State on 8 April and 30 April 1991, respectively. Finally,

on 21 June 1991 the applicant lodged a formal complaint with H.M.

Prison Service, enclosing the "fact sheet".

On 8 October 1991 the London North Area Manager of the Prison

Service replied to the applicant by commenting on each of the items

raised in his "fact sheet". On 11 December 1991 the applicant lodged

an "appeal" with the Home Secretary against the London North Area

Manager's reply and requested an independent investigation of the

points made in his request of 30 March 1991. The letter was passed to

the London North Area Manager for consideration. On 6 January 1992 the

London North Area Manager replied to the applicant that the complaints

had been fully investigated by way of the requests/complaints system

and it was regretted that the conclusions of the investigation were not

to the applicant's satisfaction.

The factual allegations which the applicant made about his

general conditions of detention were for the most part substantiated

by a report in June 1989 made by the Chief Inspector of Prisons

following his visit to Wandsworth, and by a report in March 1991 made

by the European Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment following their visit to Wandsworth

and Brixton. Since these reports, a programme to refurbish these

prisons and install integral sanitation is well underway.

B. Relevant domestic law and practice

The treatment of convicted prisoners is governed by the Prison

Rules of 1964, as amended, made under the Prison Act 1952. These Rules

are supplemented by Standing Orders and Circular Instructions made by

the Secretary of State which set out the detailed practice to be

followed in applying the Rules.

Accommodation

Section 14 of the Prison Act provides that no cell is to be used

for the confinement of a prisoner unless it is certified by an

inspector that, inter alia, its size, ventilation and fittings are

adequate for health. Prison Rule 23 provides that no cell shall be

used as sleeping accommodation for prisoners unless it has been

certified as suitable under the above Section of the Prison Act. The

certificate also specifies the maximum number of inmates who should be

confined in the cell. However this number may be exceeded with the

permission of the Secretary of State.

Sanitation

Neither the Prison Act nor the Prison Rules make any specific

provision concerning toilets or showers. At the material time, the

cells in Wormwood Scrubs, Brixton and Wandsworth Prisons had no

integral sanitation.

Exercise

Prison Rule 27 para. 1 provides that prisoners not engaged in

outdoor work, or detained in an open prison, must be given exercise in

the open air for not less than one hour in all each day, but indoor

physical training may be given instead. However in special

circumstances that period may be reduced to a minimum of 30 minutes

each day.

Remedies available to prisoners

Prisoners with grievances about the place of their detention or

its conditions have various remedies available to them. They may

complain to the Governor or the Board of Visitors within the prison

both of whom have a statutory duty to consider speedily requests and

complaints made to them. At the relevant time, prisoners could also

petition the Secretary of State directly or enlist the aid of their

Member of Parliament.

In appropriate cases, prisoners may also seek legal redress in

the United Kingdom courts. In particular an action in tort for breach

of the duty of care owed to prisoners might lie in a case where prison

conditions are shown to be intolerable. Prisoners are entitled to

obtain advice from independent lawyers. Free legal aid is available for

litigation, subject to the legal aid authorities being satisfied as to

the applicant's means and the merits of his case. An applicant wishing

to initiate legal proceedings enjoys a period of either three or six

years after the date of the matters complained of to commence domestic

legal action.

COMPLAINTS

The applicant complains under Article 3 of the Convention of

inhuman and degrading treatment by virtue of the prison conditions he

experienced in H.M. Prisons Wormwood Scrubs, Brixton and Wandsworth.

The applicant also complains that he had no effective remedy under

English law and invokes Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 January 1992 and registered

on 25 May 1992. In his application form the applicant's complaints

were limited to the conditions at Brixton and Wandsworth Prisons,

Article 3 of the Convention being invoked.

After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on 10

September 1992. It decided, pursuant to Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of the application to the respondent

Government and to invite the parties to submit their written

observations on admissibility and merits. The Commission granted the

applicant free legal aid on 11 December 1992.

The Government's observations were submitted on 17 December 1992.

The applicant replied on 29 April 1993 after two extensions of the

time-limit fixed for this purpose. In his reply, the applicant

abandoned certain of his original complaints concerning specific

incidents in Brixton and Wandsworth, but maintained his grievances

about the general conditions of detention and extended them to include

the conditions at Wormwood Scrubs Prison. At this stage the applicant

also complained under Article 13 of the Convention.

On 6 July 1993 the Commission decided to hold a hearing of the

parties. On 18 November 1993 the parties submitted pre-hearing briefs.

The hearing was held on 3 December 1993. The applicant was represented

by Mr. K. Starmer, Counsel, and Mr. D. Lawton, Solicitor, Messrs. Budd

Martin Burrett. The applicant was also present. The Government were

represented by their Agent, Mr. H. Llewellyn, Mr. J. Eadie, Counsel,

Mr. J. Adutt, legal adviser, Home Office, and Mr. E. Tullett, Prison

Service Administrator.

THE LAW

1. The applicant complains that the conditions of detention which

he experienced in H.M. Prisons Wormwood Scrubs, Brixton and Wandsworth

constituted a violation of Article 3 (Art. 3) of the Convention, for

which he allegedly had no effective domestic remedy, contrary to

Article 13 (Art. 13) of the Convention.

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

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

treatment or punishment."

Article 13 (Art. 13) of the Convention reads as follows:

"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."

2. At the heart of the applicant's complaints to the Commission are

three general features concerning the cells in which he was kept:

severe overcrowding, a lack of integral sanitation and many hours of

cellular confinement per day.

The applicant alleges that the prison conditions to which he was

subjected amounted to inhuman and degrading treatment, contrary to

Article 3 (Art. 3) of the Convention. He claims that, in the light of

the special circumstances of his case and unclear domestic law at the

material time, he has complied with the formal requirements of Article

26 (Art. 26) of the Convention concerning exhaustion of domestic

remedies and the introduction of an application to the Commission

within six months of the final decision in the case.

The Government contend that the applicant has not observed these

requirements of Article 26 (Art. 26) of the Convention. Insofar as the

applicant complains of his general conditions of detention, such as

overcrowding, it is conceded that no effective domestic remedy existed.

The Government submit that, consequently, the six month period referred

to in Article 26 (Art. 26) ran from the date of the events complained

of, that is at the latest from the applicant's transfer from Wandsworth

Prison on 11 December 1989.

Insofar as the applicant made specific complaints about his

treatment, the Government contend that the applicant should have raised

these matters at the material time so that the prison authorities could

have remedied them straight away if well-founded. However, he only

raised these complaints with the prison authorities in March 1991 or

with the Commission in May 1992, when it was too late to deal with

them. The Government consider, therefore, that again the final decision

was effectively the events complained of, in which case the applicant

lodged his application with the Commission out of time.

The Government recognise that the conditions of the applicant's

detention may have been unpleasant and the facilities inadequate.

However, there is no evidence that the applicant genuinely suffered as

a result or that these conditions amounted to the severe kind of ill-

treatment prohibited by Article 3 (Art. 3) of the Convention. They

submit, therefore, that no breach of this provision occurred in the

present case.

3. The Commission must first consider whether the applicant has

satisfied the requirements of Article 26 (Art. 26) of the Convention,

which provides as follows:

"The Commission may only deal with the matter after all domestic

remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six

months from the date on which the final decision was taken."

The Commission refers to its constant case-law that the domestic

remedies rule under Article 26 (Art. 26) of the Convention requires the

exhaustion of those remedies that are available and sufficient. To be

effective, a remedy must be capable of remedying directly the situation

of which complaint is made (No. 11660/85, Macedo v. Portugal, Dec.

19.1.89, D.R. 59 p. 85). If there is no effective remedy at the

applicant's disposal, then the six months' period referred to in

Article 26 (Art. 26) runs from the end of the situation of which

complaint is made (No. 8440/78, Dec. 16.7.80, D.R. 21 p. 138, at 147,

and No. 10320/82, Dec. 11.5.83, D.R. 32 p. 303, at 305)

The Commission notes that the complaints which the applicant

maintains before the Commission at this stage in the procedure are

limited to his general conditions of detention in the three prisons in

question. It also notes the Government's concession that the applicant

had no effective remedy at his disposal at the material time for this

type of complaint, neither through the internal prison channels, nor

through civil litigation. The internal complaints channels could not

have provided any remedy to such general problems as overcrowding or

the lack of integral sanitation in cells, and the conditions in which

the applicant was detained were not such as could have been effectively

challenged by way of a civil claim in tort.

In the absence of any effective remedies for the applicant's

complaints, the six month period envisaged by Article 26 (Art. 26) of

the Convention ran from the date on which the situation in question

ended. The Commission notes that the applicant left Wormwood Scrubs

Prison on 5 December 1988. He left Brixton Prison on 7 September 1989

and he left Wandsworth Prison on 11 December 1989. The applicant made

no complaint about his subsequent conditions of detention during his

prison sentence. The situation of which he complained therefore ended,

at the latest, when he was transferred from Wandsworth Prison on 11

December 1989.

In these circumstances, the Commission finds that the six month

period referred to in Article 26 (Art. 26) of the Convention ran from

11 December 1989. However, the application was not lodged with the

Commission until 26 January 1992, more than two years later. It follows

that the applicant has not complied with the six months' rule and that

the application must be rejected pursuant to Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)

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RAPHAIE v. THE UNITED KINGDOM

RAPHAIE v. THE UNITED KINGDOM