Lexploria

Application No. 18264/91

by Arthur HOSEIN

against the United Kingdom

The European Commission of Human Rights (Second Chamber) sitting

in private on 8 September 1993, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

Mr. K. ROGGE, 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 14 April 1991 by

Arthur HOSEIN against the United Kingdom and registered on 27 May 1991

under file No. 182264/91;

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 a citizen of the United Kingdom born in 1936 and

currently serving a sentence of life imprisonment in H.M. Prison, Park

Lane, Liverpool. This is his third application to the Commission. The

first (No. 5312/71) was declared inadmissible on 9 February 1973. The

second (No. 9086/80 concerning interference with his correspondence)

was declared admissible on 4 March 1985;in its Report adopted on 2 July

1985, the Commission concluded that there had been a violation of

Article 8 of the Convention. By Resolution No. DH (86)5 the Committee

of Ministers decided that there had been a violation of Article 8 of

the Convention.

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

summarised as follows.

The applicant alleges that on 9 February 1989 he was assaulted

by prison officers, for causing an incident in the dining room when he

complained, as a Moslem, that the same utensils were being used for

bacon and other food.

The allegations of assault were the subject of an internal

investigation and enquiries by the police. The internal investigation

concluded that there was no evidence to support the allegations and

recommended that staff were to be commended for their professional

handling of the incident. The Crown prosecution service also concluded

that there was insufficient evidence to take proceedings.

The applicant consulted his solicitors and was examined by their

medical adviser. No civil proceedings were subsequently instituted.

The applicant subsequently wrote about this incident in a letter

of 21 June 1989 to his Member of Parliament in which he named several

prisoners as witnesses to the assault and identified the officers

allegedly involved in the assault. The letter was stopped. The reason

recorded was that the inmates were not prepared to be named.

The applicant wrote a letter of 13 July 1989 to the Commission

in which he again complained of the assault naming the prison officers

and witnesses and also complaining about a number of other matters

including his allegation that he was being given the wrong medication

and that his letter to the Member of Parliament had been stopped. This

letter was also stopped. The recorded reason was "all allegations

mentioned have been dealt with".

The applicant complained about the stopping of the letters in a

petition to the Secretary of State dated 17 July 1989.

The Government state that officials dealing with the petition

overlooked the new allegations concerning the stopping of the two

letters and did not give an adequate reply.

A Member of Parliament later complained on the applicant's behalf

and in a letter in reply dated 5 March 1991, the Home Office assumed

erroneously that he referred to the stopping of 2 earlier letters and

did not deal with the complaints concerning the letter to the Member

of Parliament and to the Commission. The applicant wrote again to the

Member of Parliament who again referred the complaints to the Home

Secretary. The Government state that further enquiries were made but

before a reply could be sent the file was put away in error in Prison

Service Headquarters.

In consequence of the present application, the Government state

that a response to the complaints was sent to the Member of Parliament.

In a letter dated 3 August 1992, the Home Secretary stated:

"In the meantime Mr. Hosein had made a complaint to the European

Commission of Human Rights, in which he claimed that his letter

of 21 June 1989 to William Waldegrave and one dated 13 July 1989

to Secretary Dollé at the ECHR were both stopped in breach of

Article 8 of the Convention. Our observations on this complaint

have now been sought and it is clear that those letters should

not have been stopped. The criteria for stopping letters to MPs

or the ECHR are rightly very narrow and in neither case were they

properly applied, although I am satisfied that it was a genuine

error and not meant maliciously. Indeed, shortly afterwards Mr.

Hosein was able to write to several MPs and to the ECHR. His

second letter to Secretary Dollé was posted on 1 August 1989 and

initiated their investigation of the complaint."

RELEVANT DOMESTIC LAW AND PRACTICE

The power to read, examine and stop letters is contained in the

Prison Rules 1964 as amended, made under section 47 of the Prison Act

1952. Rule 33(3) provides:

"Except as provided by these Rules, every letter or communication

to or from a prisoner may be read or examined by the governor or

an officer deputed by him, and the governor may, at his

discretion, stop any letter or communication on the ground that

its contents are objectionable or that it is of inordinate

length."

Rule 33(3) is supplemented by Standing Order 5 sections B to F.

Standing Order 5 D5 provides that a letter to a member of the UK

Parliament may only be stopped if it would be an offence to send it

(e.g. if it contains matter which is indecent and obscene).

Section F deals with the European Commission of Human Rights.

Standing Order 5 F6 sets out the grounds on which correspondence with

the Commission, including applications, may be stopped. They are that

it contains:

(1) material which it is an offence to send through the post

(e.g. material which is indecent and obscene);

(2) plans or material which would tend to assist or encourage

the commission of any criminal offence (including attempts

to defeat the ends of justice by suggesting the fabrication

or suppression of evidence);

(3) escape plans, or material which if sent could jeopardise

the security of the prison establishment;

(4) material which could jeopardise national security;

(5) obscure or coded messages which there is reason to suspect

may contain any of the above.

COMPLAINTS

The applicant complains of the stopping of his letters of 21 June

and 13 July 1989 to a Member of Parliament and to the Commission. He

invokes Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 April 1991 and registered

on 27 May 1991.

On 2 April 1992, the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

The Government's observations were submitted on 13 August 1992

after one extension of the time-limit and the applicant's observations

in reply were submitted on 27 November 1992.

On 16 February 1993, the Commission decided to grant legal aid

to the applicant.

Following the applicant's instruction of a solicitor, further

observations were submitted on behalf of the applicant on 30 June 1993.

REASONS FOR THE DECISION

The applicant complains that two of his letters addressed

respectively to his M.P. and to the European Commission of Human Rights

were stopped by the prison authorities.

The Commission has examined these complaints under Article 8 of

the Convention which provides that:

"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 respondent Government admit that the two letters were stopped

and that rules of domestic law in that respect were wrongly applied.

They submit, however, that no harm was done since the applicant was

allowed to send a letter to the Commission 3 weeks later and a month

later to the M.P. They rely on the case-law of the Commission that a

delay in the sending of a letter may not infringe the requirements of

Article 8.

The applicant emphasises the total lack of justification for the

stopping and the failure of the authorities to treat his complaints

seriously with the result that they were regarded as part of a paranoid

condition. However he does not allege that his condition was in fact

attributable to this incident.

The Commission notes the Government's admission that the letters

were wrongly stopped. This admission was made following a proper

investigation of the matter. Further, since the incident, the

applicant's letters to the Commission and to others have issued without

hindrance. In these circumstances, the Commission finds that the matter

may now be considered as resolved within the meaning of Article 30

para. 1(b) of the Convention. The Commission further considers that

respect for Human Rights as defined in the Convention does not require

it to continue the examination of the application.

It follows that the application may be struck off the list of

cases pursuant to Article 30 para. 1 of the Convention.

For these reasons, the Commission unanimously

DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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HOSEIN v. THE UNITED KINGDOM

HOSEIN v. THE UNITED KINGDOM

LEXI