Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19785/92

by Damien McCOMBE, Theresa McCOMBE

and Cicelia McCOMBE

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 1 September 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

N. BRATZA

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 28 November 1991

by Damien McCOMBE, Theresa McCOMBE and Cicelia McCOMBE against the

United Kingdom and registered on 31 March 1992 under file No. 19785/92;

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 1962 and

currently serving a prison sentence in HM Prison Full Sutton in

England. The second applicant, who is the wife of the first applicant,

is an Irish citizen born in 1963 and resident in Dundalk in the

Republic of Ireland. The third applicant, the mother of the first

applicant, is an Irish citizen born in 1929 and resident in Belfast.

The applicants are represented before the Commission by Mr. Peter

Madden, a solicitor practising in Belfast.

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

from the documents, may be summarised as follows.

The first applicant was arrested in Wales in 1989 and tried on

counts of conspiracy to cause explosions and possession of firearms

against the background of an alleged terrorist campaign. On 6 December

1990, the applicant received a sentence of life imprisonment, with a

recommended period of 30 years. It appears that he is detained as a

Category A prisoner.

The first applicant has requested that he serve his prison

sentence in Northern Ireland in order to be near his family and

friends. He was born in Belfast and says that all his family and

friends reside there.

His petition to the Secretary of State of 17 January 1991 met

with the reply dated 28 March 1991 that enquiries were being made and

that a reply would be sent as soon as possible.

In a further reply dated 7 January 1992, the first applicant was

informed that his request was under consideration, that a review of

transfer procedures had recently taken place and that his request would

be determined in the light of the outcome of this review which was

expected shortly.

The first and second applicants have two children aged 8 and 3.

The first applicant has been visited by the second applicant six times

since his arrest but he sees his children only once a year. There are

problems with taking the children out of school and also with the

expense of travel and accommodation, a problem aggravated by the fact

that one child is on a special diet. The second applicant is not

eligible for state assistance and each trip costs approximately £500.

The third applicant is 62 years old and has visited her son, the

first applicant, twice since his arrest. She does not qualify for state

assistance and must therefore bear her own travelling expenses.

The applicants submit that the general position for all visitors

travelling from the Republic of Ireland or from Northern Ireland to

England to visit prisoners is the fear of arrest, detention, strip

searching, and general harassment and hostility by the security

services at airports and ports. The family members of some prisoners

over the years have been detained under the Prevention of Terrorism Act

without reasonable suspicion and held for varying periods of time and

released without charge, sometimes missing travel connections for the

prison visits. Other visitors have been excluded from visiting England

at all under the prevention of Terrorism Act.

The first applicant also submits that the conditions of detention

for Irish Republican prisoners in England are considerably worse than

those for their counterparts in Northern Ireland. Unlike the position

in Northern Ireland, the applicant and other Irish Republican prisoners

are completely segregated from each other unless one or two prisoners

are in the same establishment due to the fact that there are no other

prisons available. Irish Republican prisoners are generally held in

solitary confinement, in isolation, and dispersed throughout as many

available prison establishments as are in existence throughout England.

There is a policy of regular transfer from prison to prison, resulting

in the prisoners being unable to settle into familiar surroundings,

which has an adverse effect on health for prisoners serving long prison

sentences.

Relevant domestic law and practice

a) Visit entitlement

The Prison Rules 1964 (S.I. 1964/388), made by statutory

instrument under the Prison Act 1952, Sections 47 and 52, contain,

inter alia, the following provisions:

"31.(1) Special attention shall be paid to the maintenance of

such relations between a prisoner and his family as are desirable

in the best interests of both.

(2) A prisoner shall be encouraged and assisted to establish and

maintain such relations with persons and agencies outside prison

as may, in the opinion of the governor, best promote the

interests of his family and his own social rehabilitation."

"34(1) An unconvicted prisoner may ... receive as many visits as

he wishes within such limits and subject to such conditions as

the Secretary of State may direct, either generally or in a

particular case.

(2) A convicted prisoner shall be entitled -

...(b) To receive a visit once in four weeks ..."

From April 1992, the normal visit entitlement was increased to

two visits in every period of four weeks.

Accumulated Visits:

"Subject to the provisions of Orders 5A 12-18 ... convicted

inmates may be allowed to accumulate visits up to a maximum

of 12 and apply ... to be temporarily transferred to any

local prison to take their visits. Category A inmates ...

must petition for temporary transfer ... An inmate must

have accumulated at least 3 visits before he can be

transferred to take accumulated visits."

b) Temporary transfer

The Criminal Justice Act 1961 and Standing Order 5A provide that

a prisoner may apply for temporary transfer to another prison to

receive visits. These may be from a close relative or relatives who

may also be in custody. The material provision is Section 27(1) of the

Criminal Justice Act 1961 which provides that:

"The responsible minister may, on the application of a

person serving a sentence of imprisonment or detention in

any part of the United Kingdom, make an order for his

temporary transfer to another part of the United Kingdom...

and for his removal to an appropriate institution there."

c) Permanent transfer

Section 26 of the Criminal Justice Act 1961 provides inter alia:

"(1) The responsible Minister may, on the application of

a person serving a sentence of imprisonment or detention in

any part of the United Kingdom, make an order for his

transfer to another part of the United Kingdom, there to

serve the remainder of his sentence, and for his removal to

an appropriate institution [there]...

(4) Subject to the following provisions of this section, a

person transferred under this section to any part of the United

Kingdom there to serve his sentence or the remainder of his

sentence shall be treated for purposes of detention, release,

supervision, recall and otherwise as if that sentence (and any

other sentence to which he may be subject) had been an equivalent

sentence passed by a court in the place to which he is

transferred."

Revised criteria governing the transfer of prisoners to another

jurisdiction in the United Kingdom were announced, in reply to a

Parliamentary question on 23 June 1989. These provide that an inmate's

request to be transferred will, normally, be granted provided that all

the following conditions are met:

"(i) the inmate would have at least six months left to

serve in the receiving jurisdiction before his or her date

of release;

(ii) the inmate was ordinarily resident in the receiving

jurisdiction prior to the current sentence or his or her

close family currently reside there and there are

reasonable grounds for believing that it is the inmate's

firm intention to take up residence there on release; and

(iii) both departments concerned are reasonably satisfied

that the inmate will not, if transferred, disrupt or

attempt to disrupt any prison establishment or otherwise

pose an unacceptable risk to security.

It was also stated, however, that even if these criteria

were met, transfer may be refused if it is considered that

the inmate's crimes were so serious as to render him or her

undeserving of any degree of public sympathy or to make it

inappropriate that the inmate should benefit from a

substantial reduction in the time left to serve if that

would be a consequence of transfer.

Similarly, transfers may be refused if there are reasonable

grounds for believing that the inmate's primary intention

in making the application is to secure a reduction in the

time left to serve. On the other hand, an application that

does not meet these conditions may, nevertheless, be

granted where there are strong compassionate or other

compelling grounds for transfer".

d) Categorisation of prisoners

Category A prisoners are defined as those whose escape would be

highly dangerous to the public, or to the police, or to the security

of the state, no matter how unlikely that escape might be. Category

A prisoners are further classified as presenting either a standard,

high, or an exceptional escape risk. Prisoners assessed as Category

A (exceptional risk) are located in Special Security Units within

prisons. In deciding on a prisoner's categorisation, account is taken

of the nature and circumstances of the offence, details of any previous

convictions, where appropriate, the prisoner's mental state, and

reports from police, prison and other sources. The need to continue

to hold a confirmed Category A inmate in the highest security category

is reviewed at least once every 12 months on the basis of up to date

reports.

Category A prisoners are subject to certain restrictions. Their

movements within the prison are escorted and are closely monitored and

recorded. Their visitors have to be approved and their photographs

verified by the police under special arrangements known as the Approved

Visitors Scheme. They are subject to frequent cell changes. They are

not permitted to work in the prison kitchen. In addition, prisoners

in Special Security Units do not have access to prison workshops.

COMPLAINTS

The applicants complain that the refusal of a transfer is in

violation of their right to respect for their private and family life

as guaranteed by Article 8 of the Convention. They submit that

alternative prison accommodation is available in Northern Ireland and

that there is no valid reason for refusing the transfer.

The applicants also complain that they are discriminated against

on the grounds of political or other opinion, national origin and

association with a national minority, contrary to Article 14 of the

Convention.

The applicants further submit that they have no effective remedy

as required by Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 November 1991 and registered

on 31 March 1992.

On 14 October 1992, the Commission decided to adjourn the case

pending the determination of other applications raising the same

issues.

THE LAW

1. The applicants complain that the refusal to transfer the first

applicant to a prison in Northern Ireland to facilitate visits from his

family is a violation of Article 8 (Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention 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 has considered whether the relationship between

the applicants constitutes family life within the meaning of Article

8 (Art. 8) of the Convention. It notes that the second applicant is

the first applicant's wife and finds that this relationship clearly

falls within the scope of Article 8 (Art. 8). As regards the third

applicant of whom the first applicant is the adult son, the Commission

recalls that it has held that in the context of prisoners or other

persons who are detained the concept of "family life" must be given a

wider scope than in other situations:

"Prisoners generally have limited means of contact with the

outside community and of maintaining relationships with family

members. "Family life" for prisoners is inevitably restricted

to visits, correspondence and possibly other forms of

communication such as telephone calls. Emotional dependency

between, for example, parents and adult children, or siblings is

even enhanced in these circumstances. The Commission recalls in

this context that the European Prison Rules emphasise the need

to encourage these links:

'65. Every effort shall be made to ensure that the regimes of

the institutions are designed and managed so as:

(c) to sustain and strengthen those links with relatives and

the outside community that will promote the best interests of

prisoners and their families.' "

(See Nos. 18632/91, Dec. 9.12.92, and 19085/91, Dec. 9.12.92, to

be published in D.R.)

The Commission has also stated its opinion that Article 8

(Art. 8) requires the State to assist prisoners as far as possible to

create and sustain ties with people outside prison in order to

facilitate prisoners' social rehabilitation (e.g. No. 9054/80, Dec.

8.10.82, D.R. 30 p. 113 and No. 15817/89, Dec. 1.10.90, to be

published).

In light of these factors, the Commission finds that the

complaints as regards the third applicant must also be held as falling

within the scope of Article 8 para. 1 (Art. 8-1) of the Convention.

The applicants have submitted that the refusal of transfer

constitutes an interference with their right to respect for their

family life. The Commission considers however that the applicants are

arguing in effect not that the State should refrain from acting but

rather that it should take steps to implement a particular policy.

Although the essential object of Article 8 (Art. 8) is to protect the

individual against arbitrary interference by public authorities, there

may in addition be positive obligations inherent in an effective

"respect" for family life (see e.g. Eur. Court H.R., Marckx judgment

of 13 June 1979, Series A no. 31, p. 15, para. 31). In this context,

the notion of "respect" is not clear-cut and its requirements will vary

considerably from case to case according to the practices followed and

the situations obtaining in Contracting States. In determining whether

or not such an obligation exists, regard must be had to the fair

balance which has to be struck between the general interest and the

interests of the individual (see e.g. Eur. Court H.R. Abdulaziz,

Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 33-

34, para. 67 and the B. v France judgment of 25 March 1992, Series A

no. 232-C p. 47 para. 44).

The Commission recalls that in the present case the first

applicant, who is from Belfast, is detained in a prison in England and

that he has requested a transfer to Northern Ireland to facilitate

visits from his family, including the second and third applicants. The

Commission notes that the first applicant is serving a long term of

imprisonment and that the considerable distance involved imposes

difficulties, which cannot be said to be negligible, in utilising visit

entitlements.

The Commission notes however that the first applicant is lawfully

detained for serious offences committed against the background of a

terrorist campaign. The applicant is apparently detained as a Category

A prisoner and any transfer would arguably be highly dangerous,

increasing the risk of escape (see also Nos. 18632/91 and 19085/91,

Dec. 9.12.92).

The Commission also refers to its constant case-law according to

which a prisoner has no right as such under the Convention to choose

the place of his confinement and that a separation of a detained person

from his family and the hardship resulting from it are the inevitable

consequences of detention (see e.g. No. 5229/71, Dec. 5.10.72,

Collection 42 p. 14, and No. 5712/72, Dec. 18.7.74, Collection 46 p.

112). The Commission considers that only in exceptional circumstances

will the detention of a prisoner a long way from his home or family

infringe the requirements of Article 8 (Art. 8) of the Convention (see

e.g. No. 5712/72, Dec. 18.7.74, loc. cit. and No. 7819/77, Dec. 6.5.78,

published in part, D.R. 14 p. 186).

The applicants submit that there are exceptional circumstances

in that secure alternative accommodation exists in Northern Ireland and

that there is no convincing reason which outweighs the humane

considerations in favour of transfer. The Commission finds however

that these arguments are insufficient in themselves to constitute

exceptional circumstances. It notes that the first applicant is

detained in mainland United Kingdom since he was arrested and trie

there in respect of offences committed as part of an alleged terrorist

campaign on the mainland. As a prisoner, the applicant is subject to

the normal regime applicable to his category as regards correspondence

and visits. The second applicant has visited the first applicant six

times since his arrest. The third applicant has visited him twice.

Having regard to these circumstances, the Commission finds that

the failure on the part of the United Kingdom Government to provide

transfer arrangements to Northern Ireland discloses no lack of respect

for the applicants' family life within the meaning of Article 8

(Art. 8) of the Convention.

It follows that the complaint is manifestly ill-founded within

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

2. The applicants also complain that they are discriminated against

contrary to Article 14 in conjunction with Article 8 (Art. 14+8) of the

Convention since Irish Republican prisoners in the United Kingdom are

treated less favourably than other prisoners as regards transfer.

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 notes that the applicants do not contend that

there is a blanket prohibition on transfer of Irish Republican

prisoners to Northern Ireland. Insofar as the refusal of transfer in

this case can be said to be motivated by the first applicant's status

as an Irish Republican prisoner, the Commission considers that

different considerations concerning security apply to different

prisoners. It recalls that the first applicant appears to be a

Category A prisoner convicted in relation to terrorist offences. In

these circumstances, his position cannot be considered as analogous to

that of other prisoners for the purposes of Article 14 (Art. 14) of the

Convention.

It follows that this complaint is manifestly ill-founded within

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

3. The applicants also complain under Article 13 (Art. 13) of the

Convention that they have no effective remedy before a national

authority in respect of their complaints.

Article 13 (Art. 13), however, 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 recalls that it has found the applicants'

complaint under Article 8 (Art. 8) of the Convention manifestly ill-

founded. In these circumstances, the Commission also finds that the

applicants cannot be said to have an "arguable claim" of a violation

of the Convention.

It follows that this part of the application must also be

rejected 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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McCOMBE v. THE UNITED KINGDOM

McCOMBE v. THE UNITED KINGDOM