AS TO THE ADMISSIBILITY OF

                      Application No. 19085/91

                      by P.K., M.K. and B.K.

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

9 December 1992, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 F. ERMACORA

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G. H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 Mr. M. de SALVIA, Deputy 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 15 October 1991

by P.K., M.K. and B.K. against the United Kingdom and registered on 15

November 1991 under file No. 19085/91;

      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 9 July

      1992 and the observations in reply submitted by the applicant on

      7 October 1992;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first applicant is an Irish citizen born in 1955 and is

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

      The second applicant is the mother of the first applicant.  She

is 73 years old.  She is an Irish citizen and resides in Belfast.

      The third applicant is the sister of the first applicant.  She

is an Irish citizen born in 1958 and resides in Belfast.

      The applicants are represented by Mr. Peter Madden, a solicitor

practising in Belfast.

      The facts as submitted by the parties may be summarised as

follows.

      The first applicant was arrested in 1984 in England.  He was

charged with murder, causing explosions and possession of explosives

and firearms.  He was tried in England and convicted and sentenced on

6 and 7 March 1985 when he was given a sentence of life imprisonment

with a recommended minimum period of 35 years.

      The first applicant has been classified as a Category A

(exceptional risk) 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 reside in Northern Ireland.  The first

applicant was born in Belfast, Northern Ireland and resided there all

his life.  All family members reside in Northern Ireland.  He has no

relatives in England.  His requests for transfer have been refused by

the Home Office by replies dated 9 August 1985, 19 May 1986, 15

September 1989, 31 October 1989, 29 August 1990 and 29 January 1991.

      By reply dated 9 August 1985, the applicant was advised that :

      "the Secretary of State has amongst other things to be satisfied

      that the prisoner will conform fully to a normal regime on

      transfer and specifically that he has severed all links with any

      paramilitary organisation".

      By reply dated 31 October 1989, the applicant was informed that

      "The Secretary of State is still not satisfied that, if

      transferred, you will not disrupt or attempt to disrupt any

      prison establishment in Northern Ireland or otherwise pose an

      unacceptable risk to security".

      In a reply dated 11 October 1991, the Home Office stated that:

      "the consideration of reports on your behaviour here was only one

      factor... having regard to the possibility of you disrupting or

      attempting to disrupt any prison establishment in Northern

      Ireland or otherwise posing an unacceptable risk to security.

      In view of your continued concern about the decision made on your

      earlier request, further consideration has been given to the

      possibility of your being transferred to Northern Ireland either

      permanently or temporarily.  After consultation with the

      Northern Ireland authorities it has been determined that if

      transferred permanently you would expect to receive a substantial

      reduction in your time to serve.  In view of the seriousness of

      your offence it has therefore been decided that it would be

      inappropriate for you to be permanently transferred.  In the view

      of the Northern Ireland authorities, there also remain objections

      to such a transfer on the basis of security concerns and your

      presenting a continuing risk of disruption to their

      establishments.  I also have to advise you that for security

      reasons, the Home Secretary is not prepared to authorise your

      temporary transfer at this time."

      The first applicant's father died in 1988. He was unable to see

his son since the time of his arrest due to ill-health and inability

to travel long distances.  If the first applicant had been transferred

to a prison in Northern Ireland his father could have visited him

regularly before his death.  The first applicant was refused

compassionate parole for his father's funeral.

      The first applicant married Martina Anderson in May 1989.  She

is also serving a life sentence of imprisonment in England and has also

requested a transfer to a prison in Northern Ireland where the distance

between prisons would not be as great and they could possibly be held

at the same prison. Her request has been refused by the Home Office.

      The second applicant suffers from ischaemic heart disease,

angina, hypertension, chronic bronchitis and asthma.  She is short of

breath on exertion and therefore finds any form of travel difficult,

and any attempt to visit her son in prison is very trying for her.  Any

form of travel, particularly the long and arduous journey from Northern

Ireland imposes a huge stress and burden upon her, and indeed, upon the

whole family.  Due to her medical condition she is presently unable to

travel during winter and will therefore be unable to visit her son

until Easter next.  She is entitled to thirteen paid visits to England

because she qualifies for financial state assistance.  She receives

some assistance from the Department of Health and Social Services of

Northern Ireland.  She can only avail herself of approximately 3-4

visits per year, however, due to her ill health.

      The third applicant is married with a young family.  She is not

entitled to state assistance and therefore must pay her own travel,

accommodation, and subsistence expenses. When she travels she must seek

accommodation.  She lives in Belfast and has lived in Belfast all her

life. She is included in the list of approved visitors though has not

visited since 1989.

      Another reason why some members of the first applicant's family

are unable to visit at all including his brothers and sisters is that

some live in mixed Protestant/Catholic areas and they could not risk

the Royal Ulster Constabulary calling at their home to approve the

visit.  The procedure is that each visitor must be approved by the

British Home Office and each visitor must complete an application form

which is submitted to the British Home Office with personal

photographs.  The British Home Office then contact the Royal Ulster

Constabulary to call to the proposed visitor's home to make enquiries

as to why he or she wishes to visit the person in prison.  The second

applicant submits that invariably the Royal Ulster Constabulary treat

proposed visitors with hostility.

      The second applicant receives a phone call from her son

approximately once every six weeks and the first applicant can

telephone his wife approximately once a month.  The first applicant and

his wife see each other once every five to six months and since they

married in May 1989 they have had seven visits together.

      Since being sentenced in March 1985 the first applicant has been

held in five different prisons ranging in distance from the Isle of

Wight on the south coast of England to prisons in the far north of

England.

      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 lengthy

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.  "Close relative" is defined so as to include

"brother".  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 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, temporary

or permanent, 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 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.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 15 October 1991 and registered

on 15 November 1991.

      On 2 April 1992, the Commission (First Chamber) 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 9 July 1992 and

the applicant's observations in reply were  submitted on 7 October

1992.THE LAW

1.    The Government submit that the applicants have failed to exhaust

domestic remedies since they have not instituted proceedings for

judicial review of the refusal to transfer.  The applicants have

replied that such proceedings would be doomed to failure in light of

domestic case-law "In the matter of an application for judicial review

by Paul Peter Baker" of the High Court in Northern Ireland and the

Divisional Court in McAvoy ([1984] 3A11E.R.417).

      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 a remedy, do not in reality offer any chance of redressing

the alleged breach (cf. Application No. 9248/81, Dec. 10.10.83, D.R.

34, p. 78).

      It is furthermore established that the burden of proving the

existence of the 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, Application No.

9013/80, Dec. 11.12.82, D.R. 30, p. 96, p. 102).

      The Commission notes from the cases cited by the applicant that

it appears that domestic courts will not examine the Secretary of

State's reasons for refusing an application if that refusal is based

on considerations of national security.

      In these circumstances, the Commission finds that there is no

indication that the applicant would have had any possibility of success

fully challenging the refusal of the Secretary of State by way of

judicial review.  The Commission is accordingly unable to accept that

the application should be declared inadmissible for non-exhaustion of

domestic remedies.

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

applicant temporarily or 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:

      "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 Government have submitted that the relationship between the

applicants does not constitute family life within the meaning of

Article 8 (Art. 8) of the Convention.  They refer to case-law where

emphasis was placed on the element of financial or other dependency.

The Commission however considers that in the context of prisoners or

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

given a wider scope.  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."

      The Commission has also stated that it is of 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 (eg. No. 9054/90, 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

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 temporary or

permanent 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 eg. Eur. Court

H.R., Marckx judgment of 13 June 1979, Series A no. 31 p. 31 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 eg. Eur. court H.R.

Abdulaziz judgment of 28 May 1985, Series A no. 94 p. para. 67 and the

B. v France judgment of 25 March 1992, Series A no. 232-C para. 44)

      The Commission recalls that in the present case the first

applicant, who is from Northern Ireland, 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

(Exceptional Risk) prisoner. Any transfer would, in the Government's

submission, be highly dangerous, increasing greatly the risk of escape

and his detention in Northern Ireland would also facilitate his contact

with others of his beliefs and increase the potential for covert

subversive activity in the prison there.

      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. 15.7.74, 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 arrested and tried there in respect of offences committed

as part of an alleged terrorist campaign in England.  As a prisoner,

the applicant is subject to the normal regime applicable to his

category as regards correspondence and visits. The second applicant is

entitled to state financial assistance to cover thirteen visits per

year though she is only able to make 3-4 visits due to her health. The

Commission also recalls that the first applicant was able to marry

Martina Anderson while both were detained in prison and that they are

in regular contact by phone and have had seven visits together since

their marriage in May 1989. The third applicant is on the approved list

of visitors though she has not visited since 1989.

      Having regard to the above circumstances, the Commission finds

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

provide temporary or 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.

3.    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.  In the present case, the first

applicant was refused transfer at least partly on security grounds. The

Commission considers that different considerations concerning security

apply to different prisoners.  It recalls that the first applicant is

a Category A (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.

4.    The applicants also complains 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 found the applicants'

complaints 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.

Deputy Secretary to the                President of the Commission

      Commission

     (M. de SALVIA)                          (C.A. NØRGAARD)