AS TO THE ADMISSIBILITY OF

                      Application No. 18942/91

                      by Stephen WINDSOR

                      against the United Kingdom

      The European Commission of Human Rights (First Chamber) sitting

in private on 6 April 1993, the following members being present:

           MM.   J.A. FROWEIN, President of the First Chamber

                 F. ERMACORA

                 G. SPERDUTI

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Sir   Basil HALL

           Mr.   C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   M. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

           Mrs. M.F. BUQUICCHIO, Secretary to the First 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 31 July 1991 by

Stephen Windsor against the United Kingdom and registered on

11 October 1991 under file No. 18942/91;

      Having regard to:

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

      the Commission;

-     the observations submitted by the respondent Government on

      12 August 1992 and the observations in reply submitted by the

      applicant on 27 November 1992;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a citizen of the United Kingdom, born in 1952

and detained in H.M. Prison Shotts, Lanarkshire. He is represented

before the Commission by Messrs. C.A. Petrie & Co., Solicitors,

Dunfermline.

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

be summarised as follows:

      During 1987 and 1988 a progressive series of disruptions and

disturbances by prisoners took place within Shotts Prison, indicating

a steady loss of basic control by the prison authorities. The most

serious incident, which took place on 7 September 1988, involved

assaults by prisoners on prison staff in the Textile Workshop. In the

course of the disturbance the prisoners took over the workshop and

caused £50,000 worth of damage.

      In order to regain total control of the prison, the Governor

immediately placed the whole prison on a lockdown regime. This involved

a removal of normal association for the prisoners, who were confined

to their cells. Food was delivered to cells and attendance of prisoners

at work, recreation and education activities ceased. The prison

authorities aimed to restore the prison to normal by instituting a

system of progressive regimes in the different halls. The prisoners

posing the least problems were placed in C Hall, where life was

returned to normal as quickly as possible, with limited association

introduced almost immediately. D Hall had a regime not quite as

advanced as C, but was also being returned to normal, while in B Hall

there was a more restricted regime for those prisoners about whose

intents and behaviour there were still considerable doubts. A Hall was

used to house those prisoners who had been involved in the disruption

or who were suspected of incitement or other subversive activity.

Within A hall there was a sub-division into 3 levels or "flats" with

slightly differing degrees of restriction. Prisoners in A Hall were

transferred between the flats and eventually to another more

progressive hall as their behaviour or attitude were seen as improving.

      The applicant had already been located in A Hall prior to the

7 September 1988 incident. Staff reported that the applicant had been

heard inciting others to disruptive behaviour and for a month, from

13 September 1988, the applicant was placed in the Segregation Unit on

the authority of the Secretary of State. The Segregation Unit had three

exercise pens and during this period he was provided with his full

exercise entitlement during which he could talk to prisoners adjacent.

      On 13 October 1988, the applicant was returned to A Hall to the

bottom flat (the most restrictive level of the Hall) where he remained

until 15 November 1989.

      During his period in A Hall, staff reported that he continued to

attempt to intimidate and to make threats.

      As regarded exercise, the lack of suitable facilities for

exercising prisoners in small groups resulted in the authorities

offering, at most, half an hour's indoor exercise in the wing corridor

(an area of 29 by 2 metres) in groups of 2-3 per day to prisoners in

A Hall. As the regime was relaxed, exercise was given in groups of 3-5

prisoners. No complete prison records remain of the exercise periods

afforded to the applicant. A minute for the period 14 October to

19 December 1988 indicates that exercise was not available on a da

basis (offered on 35 days out of 66), with gaps of up to 6 days without

exercise. On three occasions the applicant is recorded as refusing

exercise.

      Outside exercise recommenced for A Hall in May 1989 and was

offered on a daily basis. The Government allege, based on a record for

the period from 22 May to 5 October 1989 (which omits the period 21

July-7 August), that, on the occasions when weather permitted outdoor

exercise, the applicant made use of the opportunity approximately 55%

of the time. As regards the period from January to May 1989 the

applicant's own notes indicate that exercise was offered on 6 occasions

in the first 3 weeks of January and then became more frequent,

subsequently being increased to one hour offered on most days. The

applicant also noted in July a period of nine days without exercise

which coincided with a resurgence of disturbances in the prison.

      During the lockdown period, food was delivered at meal times to

the prisoners in their cells. The Government admit that there were

initially many complaints about food arriving cold. Heated food

trolleys arrived in late 1988 and the vast majority of complaints

ceased. The applicant alleges that during July 1989 on occasion he was

not provided with food at all for a period of some days. The Government

submit that as a result of assaults on staff and disturbances special

arrangements were temporarily introduced at this time, but state that

prisoners continued to be offered meals at normal times.

      The Government state that in accordance with prison policy of

lifting restrictions, the applicant was offered the possibility of

moving to a more progressive hall. A minute, dated 23 November 1988 by

one of the prison governors, recorded that the applicant stated that

he preferred to remain in A Hall unless he could be transferred to

Edinburgh. Manuscript notes by prison officers recorded that the

applicant refused the offer of transfer to B Hall on 5 December 1988

and 4 January 1989. An undated record states that the applicant refused

to progress through the system so that he could constantly complain

about the regime. A minute, dated 28 September 1989 by the prison

governor, refers to the applicant refusing a transfer on 7 occasions.

      Prison records indicate that from 13 November 1988 the applicant

enjoyed his statutory entitlement of two visits a month.

      On 15 November 1989, the applicant was moved to Perth Prison.

      A judicial inquiry was later held into the suicides in B Hall of

two prisoners (one of whom was well known to the applicant) during the

lockdown regime in Shotts prison. Sheriff Principal J.S. Mowatt found:

      "The evidence has failed to convince me that the continued

      lockdown situation in B Hall was justified after about December

      1988... I am satisfied that the prison authorities failed to give

      proper consideration to the psychological effect on prisoners who

      were subjected to a lockdown situation for a period of weeks or

      months and the likelihood of an increase in states of depression

      and the risk of suicide;..."

      and noted that:

      "it should have been obvious to (the prison authorities) that the

      isolation involved, particularly where the accommodation was on

      the basis of one man to a cell, would increase the tend

      depression amongst the prisoners and the consequent risk of

      suicide attempts."

      A clinical psychologist's report on the applicant dated

8 July 1990 stated that he had seen the applicant on his arrival in

Perth on transfer from Shotts and that he was sleeping badly, highly

agitated and unable to associate with groups of people without feeling

panic-stricken and highly anxious. During the period of lockdown he had

developed "an obsessive compulsion" to help himself cope with the

lockdown.

      In a letter dated 18 June 1990, the clinical psychologist who was

available to prisoners at Shotts recalled that he had 7 interviews with

the applicant from August to December 1988. His impression in August

1988 was that the primary focus of the applicant's concern was external

to the prison, i.e. his pending appeal and his contact with his

children, although part of his distress could later be attributed to

the restrictive regime. He had however experienced psychological

difficulties before the lockdown and, while his psychological symptoms

were exacerbated by it to some degree, his placement under these

conditions might have been related in part to his own behaviour.

      The applicant sought legal advice with regard to the prison

conditions and in January 1990 was granted legal advice and assistance.

In order to bring an action against the Secretary of State for Scotland

in respect of alleged breaches of the Prisons (Scotland) Rules 1952,

the applicant applied for civil legal aid to the Scottish Legal Aid

Board.

      On 8 August 1990, legal aid was refused on the basis that the

applicant had "no probable cause because the application does not

reveal a valid case in law". The applicant's application for review of

this decision was refused on 31 October 1990. The applicant then

applied for an extension of authorised expenditure for legal advice and

assistance in order to obtain the advice of Senior Counsel with a view

to raising judicial review proceedings against the decision of the

Scottish Legal Aid Board in refusing legal aid.

      This application was also refused by letter from the Scottish

Legal Aid Board dated 15 January 1991 which stated that the extension

requested was "not considered a reasonable further expenditure of

public funds". This letter contained an erroneous reference which was

subsequently clarified by another letter dated 7 February 1991.

      Without legal aid, the applicant did not have the private means

to proceed with an action against the Secretary of State for Scotland

in respect of the conditions in H.M. Prison Shotts.

RELEVANT DOMESTIC LAW AND PRACTICE

      Rule 100 of the Prison (Scotland) Rules 1952 states that

prisoners shall take one hour's daily exercise in the open air.

COMPLAINTS

      The applicant complains that the system of lockdown to which he

was subjected constitutes inhuman treatment and is therefore contrary

to Article 3 of the Convention. He further complains that his inability

to pursue the Secretary of State for Scotland in the domestic courts,

due to the refusal of legal aid, deprives him of an effective remedy

before a national authority and is therefore contrary to Article 13 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 31 July 1991 and registered on

11 October 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 12 August 1992

after two extensions of the time-limit and the applicant's observations

in reply were submitted on 27 November 1992 after one extension of the

time-limit.

      On 8 September 1992, the Commission decided to grant legal aid

to the applicant.

THE LAW

1.    The applicant complains of the lockdown system to which he was

subjected in prison. He invokes Article 3 (Art. 3) of the Convention

in this respect, which provides as follows:

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

      treatment or punishment."

      The Government submit that the applicant has failed to exhaust

domestic remedies in respect of this complaint, as required by Article

26 (Art. 26) of the Convention, since he did not avail himself of the

offer to move to another hall or apply for such a move through the

internal prison remedies, and also since his solicitors did not apply

for legal aid to pursue an action themselves for judicial review of the

decision refusing legal aid for an action in damages against the

Secretary of State.

      The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress.  An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).

      It is furthermore established that the burden of proving the

existence of available and sufficient domestic remedies lies upon the

State invoking the rule (cf. Eur. Court H.R., Deweer judgment of

27 February 1980, Series A no. 35, p. 15 para. 26, and No. 9013/80,

Dec. 11.12.82, D.R. 30 p. 96, at p. 102).

      As regards the Government's submission that the applicant failed

to accept offers of a move to another Hall or to request such a move,

the Commission considers that this cannot be relied on as a ground of

non-exhaustion, although it is relevant to the substance of the

applicant's complaints. If the treatment in A Hall was in violation of

the requirements of Article 3 (Art. 3) of the Convention, the

Government cannot rely on the applicant's possibly stress-induced

obstinacy to justify their failure either to improve conditions in the

Hall or to fulfil their responsibility for  ensuring the well-being of

prisoners by transferring him anyway.

      As regards the Government's submission that the applicant failed

to apply for legal aid for challenging by way of judicial review the

refusal of legal aid for proceedings against the Secretary of State,

the Commission recalls that the applicant's solicitors applied for

legal aid for the purpose of obtaining counsel's opinion as to whether

judicial review was feasible.  The Commission notes that judicial

review proceedings are conducted in the Court of Session where only

counsel may appear and that the applicant submits that it is standard

practice to seek legal aid for counsel from the outset. The Commission

notes further that the Government have not submitted that there were

in fact grounds on which an application for judicial review could have

been made with any prospect of success.

      In these circumstances, the Commission finds that the application

cannot be declared inadmissible for non-exhaustion of domestic remedies

under Article 27 para. 3 (Art. 27-3) of the Convention.

      The Commission must therefore examine the substance of the

applicant's complaints regarding the conditions of his detention during

the lockdown regime in light of the relevant Convention case-law.

      In this regard, the Court has held that "ill-treatment must

attain a minimum level of severity if it is to fall within the scope

of Article 3 (Art. 3)", and that the "assessment of this minimum is,

in the nature of things, relative ..." (Eur. Court H.R., Ireland v. the

United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65

para. 162).  As regards degrading treatment the Court was of the view

that "in order for a punishment to be 'degrading' and in breach of

Article 3 (Art. 3), the humiliation or debasement involved must attain

a particular level and must in any event be other than the usual

element of humiliation" associated with imprisonment after a criminal

conviction.  An examination of such matters, being relative, "depends

on all the circumstances of the case and, in particular, on the nature

and context of the punishment itself and the manner and method of its

execution" (Eur. Court H.R., Tyrer judgment of 25 April 1978, Series

A no. 26, p. 15 para. 30).

      The Commission also recalls in this context that the segregation

of a prisoner from the prison community does not in itself constitute

a form of inhuman or degrading treatment.  Whilst prolonged removal

from association with others is undesirable, whether such a measure

falls within the ambit of Article 3 (Art. 3) of the Convention depends

on the particular conditions, the stringency of the measure, its

duration, the objective pursued and its effects on the person

concerned. Complete sensory isolation coupled with complete social

isolation can ultimately undermine the personality and could in certain

circumstances amount to inhuman treatment which could not be justified

by the requirements of security (No. 10263/83, R. v. Denmark, Dec.

11.3.85, D.R. 41 p. 149, at p. 153 with further references).

      The Commission recalls that the applicant was held in a lockdown

regime from 7 September 1988 to 15 November 1989 (including a period

of one month spent in the Segregation Unit) - a period of over 14

months. During this period it appears that the applicant was deprived

of normal association or recreational facilities and was detained in

his cell alone.  While the applicant was entitled to one hour's

exercise per day, prison records indicate that initially only half an

hour per day in the company of one other prisoner was offered during

the first three months of the lockdown and that this was not made

available on 31 days out of 66 and involved periods of several days (on

one occasion 6 days) without exercise and thereby without any

association. This situation improved at the end of January 1989 save

for a period in July when there was a period of nine days during which

the applicant was confined to his cell without exercise. The Commission

recalls that the applicant's complaints as to the food arrangements

during the lockdown are to some extent substantiated, the Government

acknowledging that there were complaints that the food was cold. It

appears however that steps were taken to remedy this by the provision

of heated food trolleys. The Commission accepts the submission of the

Government that food was offered to prisoners throughout this period.

      The Commission finds that the lockdown regime as described above

was of a stringent nature. It notes however that it was necessitated

by a series of disruptions in the prison, culminating in a riot on 7

September 1988 which posed grave problems of disorder and disruption

and which resurfaced in July 1989. The prison instituted a progressive

system aimed at bringing the prison back to a normal routine and the

regime in A Hall improved during the applicant's detention there. The

Government have placed weight on the fact that the applicant refused

offers to move to other less restrictive parts of the prison. The

applicant has not denied this, but submitted that this indicated in

itself the effect that the conditions were having on him. The

Commission has examined the reports by the two psychologists who had

seen the applicant during and immediately after his detention under the

lockdown conditions. It appears that the applicant was already showing

signs of mental strain resulting from his private concerns before these

events and that the lockdown may have, at most, exacerbated his

symptoms. There is no indication of a degree of mental impairment

resulting from the lockdown as to substantiate a claim that he was no

longer responsible for his actions. The Commission notes that the

applicant's complaints about the conditions are weakened by his own

refusal to accept a move away from them.

      The Commission finds, having regard to the above elements, that

the lockdown regime did not amount to complete sensory and social

isolation which could have undermined the applicant's personality.  He

continued to receive visits and was not deprived of association or

exercise for excessively long periods. In these circumstances, the

Commission concludes that the conditions which the applicant

experienced did not attain the level of ill-treatment proscribed by

Article 3 (Art. 3) of the Convention.

      It follows that this part of the application is manifestly

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

Convention.

2.    The applicant also complains that he has no remedy in respect of

his alleged ill-treatment as required by Article 13 (Art. 13) of the

Convention which provides:

      "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 the applicant was offered the

opportunity to leave A Hall but refused on a number of occasions. In

these circumstances the Commission finds that the applicant cannot

complain under Article 13 (Art. 13) that he was not provided with an

effective remedy in respect of the conditions in A Hall.

      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.

Secretary to the First Chamber       President of the First Chamber

       (M. BUQUICCHIO)                      (J.A. FROWEIN)