Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17142/90

by G. and R.S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

10 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

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

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 24 October 1989

by G. and R.S. against the United Kingdom and registered

on 11 September 1990 under file No. 17142/90;

- i -

17142/90

Having regard to:

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

the Commission;

- the Commission's decision of 9 November 1990 to bring the

application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the information submitted by the respondent Government on

29 January 1991 and the reply submitted by the applicants

on 14 March 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, who are married, are British citizens born in

1946 and 1962 and resident in London. The first applicant is serving

a term of seventeen years' imprisonment in H.M. Prison Full Sutton. The

applicants are represented by John Wadham of the National Council for

Civil Liberties. The facts as submitted by the applicants may be

summarised as follows.

On 20 November 1987, the first applicant was sentenced to

sixteen years' imprisonment for an offence of conspiracy to import

drugs. He was ordered to serve a further year of imprisonment on

default of paying a fine of £40,000, plus the £19,000 towards the cost

of his trial.

According to current practice, the applicant's earliest

release date on full remission will be March 1998.

The first applicant met the second applicant in 1983 and they

later began to live together. Prior to the first applicant's arrest,

the applicants had taken steps to seek medical advice in respect of

their difficulties in having children. After the first applicant's

arrest, the applicants were married in the chapel of Full Sutton

Prison on 27 April 1988.

At the time of lodging the application the second applicant

was aged 27 and will be 36 by the time of her husband's release, when

there will be greater difficulty in conceiving and greater risks in

having a child.

On 1 August 1988, the first applicant requested conjugal

visits and permission to give sperm for the purpose of artificially

inseminating his wife. He offered to pay any expenses incurred in the

process.

By letter from the Governor dated 31 January 1989, the first

applicant was informed that the Home Office had refused his request.

On 9 March 1989, the applicant applied for legal aid to commence

judicial review proceedings against the Home Office. On 6 April 1989,

his application was refused by the Law Society. His appeal to the Area

Committee was dismissed on 17 May 1989 on the ground that it would be

an unreasonable use of public funds to finance the proceedings.

On 10 May 1989, the applicant's M.P., who had taken up his

case, received a reply from the Under Secretary of State which stated

that, after careful consideration, it was decided that there were no

exceptional circumstances which justified an exception being made in

the first applicant's case.

On 25 May 1989 and 27 June 1989, the first applicant wrote to

the Home Secretary inquiring inter alia as to what constituted

"exceptional circumstances". In a reply, dated 31 July 1989, he was

informed that there were no set criteria, each case being considered

on its merits.

Since the communication of this application to the respondent

Government, permission has been given for the artificial insemination

arrangements to be made.

COMPLAINTS

The applicants complained that they had been deprived of their

right to found a family contrary to Article 12 of the Convention.

They originally submitted that the refusal to allow artificial

insemination extinguished the substance of their rights and that the

fact of imprisonment cannot deprive applicants of their rights in this

respect.

The applicants also originally complained that the denial of

artificial insemination facilities and the refusal of conjugal visits

were contrary to Article 8 of the Convention.

Finally the applicants contended that they had no effective

domestic remedy for these Convention claims, contrary to Article 13 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 October 1989 and

registered on 11 September 1990. After a preliminary examination of

the case by the Rapporteur, the Commission decided on 9 November 1990

to give notice of the application to the respondent Government,

pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former

version), and to invite the parties to submit their written

observations on the admissibility and merits of the application.

After an extension of the time limit fixed for the submission of those

observations, the Government informed the Commission on 29 January

1991 that the Home Secretary had considered the application and, in

the light of information now put forward by the applicants, he had

decided to permit arrangements for artificial insemination to be made

in this case, the application being thereby resolved. The applicants,

also after an extension of a fixed time limit, informed the Commission

on 14 March 1991 that, whilst they welcomed the Government's offer,

the application would not be withdrawn as they wanted a declaration

that the original refusal of arrangements had been in breach of their

Convention rights and damages for that refusal. They also wished to

pursue their claim concerning the continued denial of conjugal visits.

THE LAW

1. The applicants complained that the refusal to allow them

conjugal visits in prison constituted an unjustified interference with

their right to respect for family life under Article 8 (Art. 8) of the

Convention and a denial of their right to found a family ensured by

Article 12 (Art. 12) of the Convention. The relevant parts of these

Convention provisions provide as follows:

Article 8 (Art. 8):

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

family life ...

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 ... for the prevention of disorder or crime ..."

Article 12 (Art. 12):

"Men and women of marriageable age have the right to

marry and to found a family, according to the national

law governing the exercise of this right."

However the Commission refers to its constant case-law that,

whilst noting with sympathy the reform movements in several European

countries to improve prison conditions facilitating such visits,

nevertheless for the present time the refusal, although constituting

an interference with the Article 8 (Art. 8) right, is justified for the

prevention of disorder or crime within the meaning of the second

paragraph of Article 8 (Art. 8). An interference with family life which is

justified under Article 8 para. 2 (Art. 8-2) of the Convention cannot

at the same time constitute a violation of Article 12 (Art. 12) (cf.

No. 8166/78, Dec. 3.10.78, D.R. 13 p. 241). 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 applicants also complained of an absence of effective

domestic remedies for their above Convention claims contrary to

Article 13 (Art. 13) of the Convention. Article 13 (Art. 13) of the

Convention provides as follows:

"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."

However, Article 13 (Art. 13) of the Convention 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, para. 52). The Commission has found above that the

applicants' claims about conjugal visits under Articles 8 and 12 (Art.

8, 12) of the Convention are manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. In the light of

the reasons upon which that finding is based, the Commission also

considers that the facts of the present case fail to disclose an

"arguable claim" of a violation of these provisions. Consequently the

applicants cannot derive from Article 13 (Art. 13) of the Convention a

right to a remedy for the alleged breaches of Articles 8 and 12 (Art.

8, 12) in respect of the refusal of conjugal visits. It follows that

this part of the application is also manifestly ill-founded within the

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

3. Finally, the applicants complained of a refusal to allow

artificial insemination arrangements for them while the first

applicant was in prison. They again invoked Articles 8, 12 and 13

(Art. 8, 12, 13) of the Convention. Permission for such arrangements

has since been given.

The Commission considers that since permission for the

necessary arrangement has now been given the factual basis of this

part of the application has been resolved, within the meaning of

Article 30 para. 1 (a) (Art. 30-1-a) of the Convention, and that, in the

circumstances it is no longer justified to continue the examination of

this aspect of the case (Article 30 para. 1 (b) (Art. 30-1-b)).

Moreover it finds no reason of a general character concerning respect

for Human Rights as defined in the Convention which requires the

retention of this part of the application (Article 30 para. 1 in fine)

(Art. 30-1).

For these reasons, the Commission, by a majority,

DECLARES INADMISSIBLE that part of the application

concerning conjugal visits and effective remedies

for the refusal of such visits;

DECIDES TO STRIKE OUT the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NORGAARD)

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G.S. AND R.S. v. THE UNITED KINGDOM

G.S. AND R.S. v. THE UNITED KINGDOM