Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16244/90

by S.W.

against the United Kingdom

The European Commission of Human Rights sitting in private on

12 October 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 9 January 1990

by Mr. S.W. against the United Kingdom and registered on 26 February

1990 under file No. 16244/90;

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 March 1992 and the observations in reply submitted by the

applicant on 28 May 1992 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1952 and currently

serving a prison sentence in H.M. Prison Perth. The applicant is

represented by Drummond Miller W.S., solicitors practising in

Edinburgh.

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

summarised as follows.

On 27 November 1985, the applicant was convicted of armed robbery

and sentenced to 20 years imprisonment. His appeal against conviction

was dismissed on 21 November 1986, but his sentence reduced to 14

years.

The applicant introduced application no. 13081/87 before the

Commission on 16 May 1987. His application, which concerned various

complaints concerning his arrest and trial, was declared inadmissible

on 14 December 1988.

The applicant alleges that since he started serving his sentence

his correspondence has been interfered with.

On or about 27 October 1988, the applicant gave in to be posted

a letter to the Chief Constable of Strathclyde. The letter was opened

and read. The applicant states that he was questioned as to the

contents which, inter alia, reported a prison officer for theft. The

applicant alleged that he had given a prison officer £6 on one occasion

to buy him a tape from a record shop and three blank tapes to record

music for him on another. He alleged that the prison officer kept

these items and denied that they had been given to him.

The Prison Governor forwarded the letter on 8 November 1988 with

a letter attached in which she gave details of the internal prison

enquiry, to the effect that the prison officer alleged to have stolen

the applicant's property denied the allegation emphatically. The

Government submit that the Governor had already commenced an

investigation into the matter before the letter was stopped and that

the letter was delayed only because there had been a recent disturbance

in the prison and the Governor did not have the time to deal with the

matter immediately. Following an incident at the prison six months

earlier, when the police had been called in to deal with an allegation

of theft which apparently was based on the conduct of a prison officer

who tasted some left-over curry, the Governor had made an informal

agreement with the police to accompany any similar complaint in future

by an explanation of the broader context and the circumstances

surrounding the complaint. The purpose of the arrangement was to avoid

the inappropriate deployment of police resources.

By letter dated 6 December 1988, the police asked the Governor

to inform the applicant that his complaints were being investigated.

It appears from that letter that the applicant had been interviewed by

the police on 15 November 1988. By a telephone message from the police

on 27 January 1989, the applicant was informed that the Procurator

Fiscal had decided to take no further action in the matter.

The applicant later instituted civil proceedings against the

prison officer in the Sheriff Court. The Sheriff Court dismissed his

case on 23 June 1989. In the case stated for appeal to the Sheriff

Principal, the Sheriff referred to the fact, as admitted or proved,

that the applicant's letter of 27 October 1988 had been intercepted by

the prison authorities and as a result, an internal investigation

carried out by a senior prison officer before the letter was sent on

8 November 1988. The applicant apparently did not pursue the appeal.

The applicant gave in to be posted a letter dated 3 February

1989 to Councillor Murray, chairman of the Social Work Department and

a member of Lord Macaulay's working party on the penal system. It

contained the description of an alleged incident in which unnamed

prison officers assaulted a prisoner in the cell above him, following

which other prisoners smashed their cells in protest and were in turn

assaulted by prison staff. He alleges that the letter was stopped and

that he was instructed to re-write the first page. He states that the

re-written letter was sent out without problem.

By petition dated 3 October 1989 to the Secretary of State, the

applicant complained, inter alia , of interference with the above

letters.

By letter dated 15 November 1989, the Secretary of State replied

as follows:

-concerning the letter to the Chief Constable : that there was

no evidence to substantiate the applicant's allegations;

-concerning the letter to Councillor Murray : that the prison

authorities had no knowledge of these matters.

COMPLAINTS

The applicant complains of interference with his correspondence

by the prison authorities. He also submits that he has no effective

remedy in respect of his complaints. He invokes Articles 8 and 13 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 January 1990 and registered

on 26 February 1990.

On 11 July 1990, the Rapporteur requested the respondent

Government to submit information on the applicant's complaints

concerning interference with his correspondence.

The Government's reply was submitted on 10 September 1990 and 15

April 1991 and the applicant's comments in reply were submitted on 27

November, 30 December 1990 and 9 May 1991.

On 12 December 1991, the Commission decided to communicate

the application to the Government and to ask for written

observations on the admissibility and merits of the application in

respect of two of the applicant's allegations of interference with his

correspondence by the prison authorities. The remainder of the

applicant's complaints were declared inadmissible.

The Government's observations were submitted on 9 March 1992

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

in reply were submitted on 28 May 1992.

On 10 July 1992, the Commission decided to grant legal aid to

the applicant.

THE LAW

The applicant complains of interference by the prison authorities

with two of his letters and invokes Articles 8 and 13 (Art. 8, 13) of

the Convention.

Article 8 (Art. 8) of the Convention provides as relevant:

"1. Everyone has the right to respect for ... 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."

Article 13 (Art. 13) of the Convention 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 respondent Government submit that the applicant has failed

to exhaust domestic remedies in respect of his complaints.

They submit in respect of the letter of 27 October 1988 to the

Chief Constable that the applicant was still in the course of

complaining about it to prison officials at the time that he introduced

his complaint before the Commission and that he did not provide the

prison authorities with relevant evidence. Also he did not renew his

petition to the Secretary of State.

In respect of the letter of 3 February 1989, the respondent

Government submit that the applicant also failed to exhaust domestic

remedies since he did not complain at the time to the Secretary of

State and he again hindered later investigations by not providing the

authorities with a copy of the stopped letter.

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).

The Commission's case-law establishes that the possiblity of requesting

an authority to reconsider a decision taken by it will not generally

constitute an effective remedy for the purposes of Article 26 (Art. 26)

of the Convention (cf. No. 7729/76, Dec. 17.12.76, D.R. 7 p. 164).

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 letter of 27 October 1988, the Commission recalls

that the applicant had already complained about interference with it

in his petition of 3 October 1989 to the Secretary of State to which

he had received the reply that there was no evidence to support his

allegations. As regards the allegation that the applicant later

hindered investigations by failing to produce his evidence, the

Commission notes that the matters of which he complained should have

been, and in fact were known to the prison authorities who, for

whatever reason, failed initially to recall the matter in question.

As regards the letter of 3 February 1989, the Commission recalls

that the applicant did raise the matter a number of months later in his

petition of 3 October 1989 after he had in fact re-written part of the

letter and had it sent out. It notes that there is no requirement in

the relevant prison rules and standing orders that a complaint must be

made within a certain time. Further, there is no indication that when

the applicant submitted his petition the prison authorities asked him

to provide a copy of the letter.

In these circumstances, the Commission finds that the applicant

has complied with the requirements of Article 26 (Art. 26) of the

Convention and that the application cannot be declared inadmissible for

non-exhaustion of domestic remedies.

The Commission has made a preliminary examination of the parties'

observations on the substance of the complaints under Articles 8 and

13 (Art. 8, 13) of the Convention. It considers that they raise

serious issues of fact and law which are of such complexity that their

determination should depend on an examination on the merits. The

application cannot therefore be regarded as being manifestly ill-

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

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRüGER) (C. A. NØRGAARD)

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S.W. v. THE UNITED KINGDOM

S.W. v. THE UNITED KINGDOM