Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17916/91

by J.

against the United Kingdom

The European Commission of Human Rights sitting in private on

6 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

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

A.V. ALMEIDA RIBEIRO

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 2 March 1991

by J. against the United Kingdom and registered on

13 March 1991 under file No. 17916/91;

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 applicant is a United Kingdom citizen, born in 1951 and

detained in HM Prison, Hedon Road, Hull.

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

may be summarised as follows.

The applicant was transferred from Hull to Liverpool prison on

8 January 1990. He was to be placed in the segregation unit there

(for unspecified reasons). The applicant states that, on arrival at

the prison, his personal property, including legal documents and

family correspondence, was taken from him. The applicant thought that

the prison officers had no right to remove his papers and resisted. He

alleges that he was pinned to the ground by the officers in the

ensuing struggle and taken to a special cell, which had no furniture.

His clothes were removed and he was left with a blanket in the cold.

The following day he was charged with assaulting one of the prison

officers who had received a blow to his eye.

On 20 January 1990 the applicant was informed that the

disciplinary hearing before the Board of Visitors on this charge was

to be held on 22 January 1990. The applicant states that he was

illegally denied his prison wages of £1.65 that day. He reacted by

banging his cell door and demanding his earnings. His need for this

sum of money was acute as he wanted to buy cigarettes. The conditions

in the segregation unit were spartan and cigarette smoking was one of

his few comforts. As a result of the banging he was forcibly removed

again to the special cell by three prison officers, where he remained

for two days. He refused to attend the disciplinary hearing as he

felt psychologically and physically unfit for it, although a medical

officer, after an allegedly cursory examination, had pronounced him

fit to attend.

The Board of Visitors found the applicant guilty of the

offence and awarded him 120 days' loss of remission (suspended for six

months) and 56 days' confinement in a cell with cardboard furniture.

He was transferred back to Hull prison under punishment four days

later. During February and March 1990 at HM Prison Hull he apparently

served the remainder of the 56 days of cellular confinement by way of

punishment. The applicant sought legal aid for judicial review of the

Board of Visitor's decision, and at the same time petitioned the

Secretary of State about the punishment. On 5 July 1990 the Home

Office quashed the Board's finding of guilt on procedural grounds,

but the applicant had by that time served the 56 days' cellular

confinement. The applicant was informed of this decision by a letter

dated 12 July 1990 and earnings which had been forfeited during this

period were restored to him. Legal aid was refused for the judicial

review application because "the legal position (was) too doubtful to

justify proceedings", and "the potential benefit (was) insufficient to

justify proceedings having regard to" their cost (final appeal

decision of Legal Aid Area Committee 2 January 1991).

COMPLAINTS

The applicant complains that he was denied natural justice

contrary to Article 6 paras. 1 and 3 (b) of the Convention. He also

alleges that he suffered inhuman and degrading treatment, contrary to

Article 3 of the Convention, and that he had no effective remedy for

his complaints, contrary to Article 13 of the Convention.

THE LAW

1. The applicant complains of the disciplinary proceedings

against him at HM Prison Liverpool in January 1990. He alleges that

he was denied natural justice and invokes Article 6 para. 1

(Art. 6-1) of the Convention (the right to a fair hearing in the

determination of a criminal charge) and Article 6 para. 3 (b) (Art.

6-3-b) (the right to have adequate time and facilities for the

preparation of a defence). However the Commission is not required to

determine whether the disciplinary proceedings in this case involved

the determination of a criminal charge, within the meaning of Article

6 para. 1 (Art. 6-1), as the applicant has failed to comply with the

six months' rule laid down in Article 26 (Art. 26) of the Convention.

The final effective decision in the case was the quashing of the

disciplinary sentence by the Home Office on 5 July 1990, of which

decision the applicant was notified on 12 July 1990. He did not

effectively lodge his application to the Commission until 2 March

1991. (His previous two letters to the Commission, the first dated 28

January 1991, had given no indication of what his complaints were

about. They merely requested an application form.) In these

circumstances the Commission cannot deal with this part of the

application, which must be rejected pursuant to Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant next complains that he has suffered inhuman and

degrading treatment contrary to Article 3 (Art. 3) of the Convention.

However the applicant has not specified or raised his complaints

either before the prison authorities, including the Secretary of

State, or before the civil courts in any claim for damages. He does

not appear even to have sought legal advice on the matter from his

solicitors, as his principal concern was the quashing of the

disciplinary sentence, which he obtained through his petition to the

Secretary of State. The Commission finds, therefore, that the

applicant has failed to exhaust domestic remedies as required by

Article 26 (Art. 26) of the Convention, or, even assuming that he had

no effective remedies to pursue, he has again failed to comply with

the six months' rule under Article 26 (Art. 26) as he did not lodge

these complaints with the Commission within six months of the

incidents in question. It follows that this part of the application

must also be rejected pursuant to Article 27 para. 3 (Art. 27-3) of

the Convention.

3. Finally, the applicant complains that he had no effective

domestic remedies for his substantive complaints under Articles 3 and

6 (Art. 3, 6), contrary to Article 13 (Art. 13) of the Convention,

which requires States to provide such remedies. However, given the

Commission's conclusions above that it cannot deal with the

applicant's substantive complaints essentially because he has failed

to observe the six months' rule laid down in Article 26 (Art. 26) of

the Convention, for the same reason it cannot examine this part of the

application.

The Commission notes that the applicant has not suffered any

continuing prejudice beyond that which arose directly and immediately

from his three days in a special cell in January 1990, his

disciplinary adjudication at the same time, resolved by July 1990, and

his 56 days of cellular confinement by way of a disciplinary

punishment in February and March 1990. His position is not therefore

to be compared to that of a person subject to a continuing restriction

on his substantive Convention rights. In the circumstances of the

present case the Commission finds that the "final decisions" referred

to above at points 1 and 2 are also the final decisions in relation to

the applicant's complaint under Article 13 (Art. 13) of the Convention (cf.

No. 8206/78, Dec. 10.7.81, D.R. 25 p. 147 at pp. 151-152). The

Commission concludes, therefore, that this remaining part of the

application has been introduced out of time and is inadmissible under

Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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J. v. THE UNITED KINGDOM

J. v. THE UNITED KINGDOM