AS TO THE ADMISSIBILITY OF

                      Application No. 20485/92

                      by Michael, James and Carmel McKENNY

                      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 3 July 1992 by

Michael, James and Carmel McKenny against the United Kingdom and

registered on 12 August 1992 under file No. 20485/92;

      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 1927, and

currently serving a prison sentence in Full Sutton Prison, England.

      The second applicant is the brother of the first applicant.  He

is an Irish citizen, born in 1931, and resides in Dublin, Ireland.

      The third applicant is the sister-in-law of the first applicant.

She is an Irish citizen, born in 1936, and resides in Dublin, Ireland.

      The applicants are represented by Peter Madden, a solicitor

practising in Belfast.

      The facts of the present case, as submitted by the applicants,

may be summarised as follows:

      The first applicant was arrested on 6 May 1986.  He was charged

with conspiracy to cause explosions.  He was sentenced to 17

years'imprisonment.  The first applicant has been classified as a

Category A prisoner.

      The first applicant has requested that he serve his sentence of

imprisonment in a prison in Northern Ireland in order to be near to his

family and friends, who all, with the exception of one nephew, reside

in Ireland.  His request for transfer has been refused by the British

Home Office on 10 September 1990 and 12 February 1992.  The refusals

were based on the fact that the first applicant has no relatives in

Northern Ireland, and on the possibility that if transferred he would

stand to benefit from the more generous remission rate that applies in

Northern Ireland.  He is detained as a category A prisoner.

      The second applicant is retired.  The third applicant is a

housewife.  An estimated cost of a visit to an English prison is

between £250 and £300.  As no financial assistance is available from

the Irish Government for prison visits to England, all travel,

accommodation and subsistence expenses must be paid for personally.

This poses a heavy financial strain on the second and third applicants.

      The third applicant visits the first applicant approximately

twice a year, although she suffers from travel sickness, high blood

pressure, and a high cholesterol level.  She has been advised to avoid

stress.

      It is alleged that the general position for all visitors

travelling to England from Ireland to visit prisoners is dominated by

the fear of arrest, detention, strip-searching, general harassment and

hostility demonstrated by the security forces 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, being released without charge and

sometimes missing travel connections for prison visits.  Such fears are

very real as, for example, the third applicant has been already

detained and questioned on a few occasions when travelling to England.

Other visitors have been excluded from visiting England at all under

the Prevention of Terrorism Act.  Exclusion from England is an

executive decision which is not open to judicial review.

      The first applicant 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 lengthy

prison sentences.  During his imprisonment so far the first applicant

has been transferred several times to different prisons in England.

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 (Standing Order):

           "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.  "Close relative" is defined so as to include

"brother" and "sister".  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."

      In a written decision relating to a request by a prisoner for

permanent transfer from the United Kingdom to Northern Ireland the

Secretary of State indicated the criteria he would apply in exercising

his discretion to transfer prisoners.  That decision reads, in part,

as follows:

      "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) Differences in release policies and procedures

      The law and practice relating to the proportion of a sentence

which must be served before release differs between the three United

Kingdom jurisdictions.  Prisoners serving determinate sentences in

England and Wales are entitled to one-third remission of their

sentence.  Prisoners in Northern Ireland are generally entitled to

remission of one half of their sentence.  There are also differences

in the administration of life sentences so that those serving sentences

for comparable offences are generally released earlier in Northern

Ireland than they would be if they were sentenced in England and Wales.

e) 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 denial

of a transfer is deliberately and unnecessarily punitive.

      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.  In particular, they submit that Irish Republican prisoners

are discriminated against as a class in that they are treated less

favourably than other prisoners in relation to questions of transfer.

      The applicants further submit that they have no effective remedy

as required by Article 13 of the Convention.

THE LAW

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

applicant permanently 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 as follows:

      "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 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

brother, and that the third applicant is the sister-in-law of the first

applicant.  It 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.'"

      (No. 19085/91, Dec. 9.12.92, to be published in D.R.).

      The Commission has also stated the 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 D.R.).

      In light of these factors, the Commission finds that the

applicants' complaints must 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 a 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 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. 14 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 para. 67,

and the B. v. France judgment of 25 March 1992, to be published in

Series A no. 232-C, para. 44).

      The Commission recalls that in the present case the first

applicant is detained in a prison in England and that he has requested

a transfer 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 in utilising visit entitlements

which cannot be said to be negligible.

      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 detained as a Category A

prisoner.  Any transfer would be arguably highly dangerous, increasing

greatly the risk of escape.

      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 Commission finds that no exceptional circumstances arise in

this case.  It notes that the first applicant is detained in England

since he was tried there in respect of offences committed as part of

an alleged terrorist campaign.  As a prisoner, the applicant is subject

to the normal regime applicable to his category as regards

correspondence and visits.  The second and third applicants are

entitled to visit the first applicant.  The second applicant visits him

twice a year.

      Having regard to the above circumstances, the Commission finds

that the decision of the United Kingdom Government to refuse permanent

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 as follows:

      "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.  In the present case, the Commission

notes that the first applicant was refused transfer.  Insofar as this

refusal 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 is a Category A (high security or

exceptional risk) 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 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 rejected the applicants'

complaints under Articles 8 and 14 (Art. 8, 14) of the Convention, no

lack of respect for family life and no unlawful discrimination having

been disclosed. In these circumstances, the Commission also finds that

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

violation of the Convention necessitating an Article 13 (Art. 13)

remedy.

      It follows that this part of the application must also 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 by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

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