AS TO THE ADMISSIBILITY OF

                        Application No. 13590/88

                        by Thomas CAMPBELL

                        against the United Kingdom

        The European Commission of Human Rights sitting in private on

8 November 1989, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     G. SPERDUTI

                     E. BUSUTTIL

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                Mr.  C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

                Mr.  J. RAYMOND, 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 14 January 1986

by Thomas CAMPBELL against the United Kingdom and registered on

5 February 1988 under file No. 13590/88;

        Having regard to:

     -  the reports provided for in Rule 40 of the Rules of Procedure

        of the Commission;

     -  the written observations submitted by the Government on

        1 December 1988;

- ii -

13590/88

     -  the applicant's observations in reply submitted on 7 March

        1989;

     -  the supplementary observations submitted by the Government

        on 23 May 1989;

     -  the parties' observations submitted at the hearing on

        8 November 1989.

        Having deliberated;

        Decides as follows:

THE FACTS

A.      Particular circumstances of the case

        The applicant is a British citizen born in 1952 and resident

in Glasgow.  He is currently serving a sentence of life imprisonment.

The applicant is represented by Mr.  John Carroll, a solicitor

practising in Glasgow.  The facts as submitted by the parties may be

summarised as follows.

        The applicant is serving a term of life imprisonment for

murder and began serving his sentence in Peterhead Prison.  He was

transferred to the hospital wing of Barlinnie Prison, Glasgow as a

result of his refusal of prison food in protest against, inter alia,

the prison authorities' refusal to allow him confidential

correspondence and ready access to his solicitor.

        Since his imprisonment the applicant has been advised by his

solicitors, in respect of:

    1.  an action for damages for injuries sustained on 3 November 1985;

    2.  a claim against the Secretary of State for damages in respect

        of injuries sustained on 25 April 1987;

    3.  a claim against the Secretary of State in respect of

        infestation of lice while in the hospital wing of Peterhead

        Prison in November 1985;

    4.  a possible prosecution by the police (arising out of an

        incident in Barlinnie Prison on 25 April 1987);

    5.  a denial of communication with the solicitor following the

        said incident on 25 April 1987;

    6.  the Prison Department's denial of the applicant's right to

        free and unrestricted correspondence between himself and his

        legal advisers on all of the above matters;

    7.  an application (Application No. 12323/86) to the European

        Commission of Human Rights concerning inter alia his solitary

        confinement and access to his solicitor while in custody in

        hospital;

    8.  the present application.

        The applicant states that throughout his detention, from 1985

onwards, his correspondence with his solicitors and the Commission has

regularly been interfered with, in being opened, perused and censored

by the prison authorities.

        On 16 September 1985, the applicant's solicitor wrote to the

Governor, HM Prison Peterhead, asking that all correspondence between

him and his client should pass without interference.  After the

Deputy Governor of Peterhead had discussed the matter with the

applicant, he wrote on 23 September 1985 to the applicant's solicitor

indicating that outgoing mail from the applicant to his solicitor

concerning his petition to the Commission, if properly marked, would

not be opened.

        In a further letter dated 4 October 1985 the solicitors wrote

to the Governor of Peterhead Prison again asking for Standing Order M

to be waived regarding all solicitors' correspondence.  On 15 October

1985 the Governor replied that incoming mail from the solicitor

concerning an application to the Commission, suitably identified,

would be opened in the presence of the prisoner and handed to him

unread.  The Governor explained that this arrangement would not apply

to solicitors' correspondence about matters other than the application

to the Commission.

        On 24 October 1985 the applicant's solicitor wrote to the

Scottish Home and Health Department again requesting that all the

correspondence between him and his client should pass unopened.

        On 29 October 1985 the applicant petitioned the Secretary of

State complaining about censorship of his mail with his solicitor.  In

their reply to this and other petitions on 19 June 1986 the Scottish

Home and Health Department advised the applicant that his solicitor

had been told on 15 October 1985 that correspondence "in respect of

ECHR procedures" should be clearly marked to ensure privacy but that

any other correspondence between an inmate and his legal adviser was

subject to normal rules.

        On 16 June 1986 the Scottish Home and Health Department wrote

to the applicant's solicitors confirming the arrangements for

solicitors' correspondence concerning matters before the Commission

but reaffirming that other correspondence was still subject to normal

rules.

        In his petition dated 19 June 1986 the applicant again

complained that incoming mail from his solicitor was scrutinised.  He

repeated these complaints in his petition dated 27 June 1986.  In

these petitions, the applicant also drew the attention of the

authorities to the fact that correspondence from the European

Commission of Human Rights was being opened.  The reply to these

petitions received by the applicant on 15 July 1986 referred the

applicant to the existing arrangements.  In his petition of

30 December 1986 he complained that a letter from a firm of solicitors

was opened before he received it.

        The Scottish Home and Health Department stated in a letter

dated 16 June 1987 to the applicant's solicitor that all

correspondence will continue to be opened except that concerning a

complaint to the European Commission of Human Rights.  However,

despite this statement correspondence to and from the Commission has

been opened.  The applicant refers to letters dated 20 June 1985,

17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986, 22 May

1986, 7 January 1987, 4 June 1987, 18 August 1987 and 3 November 1987

from the Commission which show the prison censor's mark on the top

right hand corner.  The Government accept that five of these letters

(17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986 and

18 August 1987) were opened.  It considers that three other letters

(20 June 1985, 22 May 1986 and 7 January 1987) may have been opened

but that it is not possible to identify the markings.  Of two

remaining letters (2 and 7 October 1987) which the applicant alleges

were opened the Government state that there are no identificable marks

and no opinion is expressed as to whether they have been opened or

not.

        A letter sent by the applicant to his Member of Parliament

dated 25 August 1987 also received the same scrutiny.

        The applicant's solicitors applied for legal aid to bring

civil proceedings in respect of the interference with the applicant's

correspondence.  Legal aid was refused on 7 October 1986 by the

Supreme Court Legal Aid Committee on the ground that the applicant had

no probable cause of action.  The Committee also noted that the

applicant was not being denied visits from his legal advisers and that

he has not indicated that he was unable to give instructions verbally

to his advisers.  The applicant's appeal against this decision was

refused on 5 December 1986 by the Legal Aid Central Committee of the

Law Society of Scotland.

B.      Relevant domestic law and practice

a)      In general

        The system of prisons in Scotland is governed by the Prisons

(Scotland) Act 1952 (c.61), section 35(1) of which provides that:

        "the Secretary of State may make rules for the regulation

        and management of prisons and for the classification,

        treatment, employment, discipline and control of persons

        required to be detained therein."

        In exercise of his powers under section 35 the Secretary of

State has made the Prison (Scotland) Rules 1952 (S.I. 1952/565) ("the

Rules").  To supplement these statutory provisions the Secretary of

State issues advice and instructions to the Governors of prisons by

way of administrative orders, collectively known as the Prison

(Scotland) Standing Orders, and administrative circulars.

b)      Correspondence with legal advisers

        Communications between prisoners and their legal advisers and

others are governed principally by Rule 74 of the Rules.  Rule 74(4)

provides that every letter to or from a prisoner shall be read by the

Governor or by an officer deputed by him for that purpose.  The only

exceptions to this general rule are letters of request or complaint to

the Secretary of State or the Visiting Committee which may not be

opened by the Governor if they are sealed by the prisoner.

        In the case of remand prisoners, Rule 124(2) provides that they

shall be allowed to write to their legal advisers.  Under Rule 124(3)

any confidential written communications prepared by such a prisoner as

instructions for his legal adviser may be delivered to the legal

adviser without being examined by any officer of the prison unless the

Governor has reason to suppose that it contains matters not relating

to such instructions.  Under Rule 127 this facility is also available

to convicted prisoners who are the subject of further charges.

Similar provisions apply under Rule 132(2) to an appellant in

connection with his appeal.  It does not appear that any of these

provisions applied to the applicant at the relevant time.

        These rules are supplemented by Standing Order M, which deals

in detail with communications between prisoners and others.  Copies

of this Standing Order are available to prisoners and the public.

Standing Order Mal(a) sets out the purpose of examination of the

correspondence, namely to prevent its use to plan escapes or

disturbances or otherwise jeopardise the security of the establishment

and to satisfy other reasonable requirements of prison administration.

Under Standing Order Mal(d), when correspondence is examined or read

this is to be done as quickly as possible.

        For the purposes of examination and censorship, Standing Order

Ma6 divides correspondence, both incoming and outgoing, into five

groups.  Most correspondence with legal advisers falls into category

(e), that is, general correspondence.  Under Standing Order Ma7 such

correspondence must not contain any of the material specified in that

Standing Order.

        Following the friendly settlement in the case of McComb v.

the United Kingdom (Comm.  Report, 15.5.86, to be published in D.R.)

the Secretary of State initiated new procedures dealing with

correspondence between a prisoner and legal adviser in respect of

legal proceedings.  These new procedures came into force on 21 March

1988.  They are set out in a new Standing Order Ma8:

        "Correspondence with a legal adviser about legal proceedings

        to which an inmate is already a party or about a forthcoming

        adjudication, may not be read or stopped unless the Governor

        has reason to suppose it contains other material.  Such a

        letter may be examined for illicit enclosures, but should

        only be opened for that purpose in the presence of the

        inmate by whom it is sent or to whom it is addressed.

        Other correspondence with a legal adviser may be read and may

        not contain anything specified in Standing Order Ma7(a)-(i)

        and (k) to (n).  Such correspondence may not be stopped on

        the grounds that it contains material prohibited by Standing

        Order Ma7(j) unless it is clear that the inmate is not

        seeking legal advice but is writing for some other purpose."

c)      Correspondence concerning proceedings under the European

        Convention on Human Rights

        In addition to general provisions relating to correspondence,

Standing Order M contains specific provisions relating to

correspondence with the European Commission or Court of Human Rights

or with a legal adviser in connection with a petition to the

Commission or pending proceedings before the Commission or the Court.

Under Standing Order Ma10 such correspondence may not contain material

prohibited under Standing Order Ma7(a) to (c) or (e), which concern

escape plans, material which would tend to assist or encourage the

commission of offences, material which could jeopardise national

security and obscure or coded messages.

        Further general provisions relating to the Convention are to

be found in Standing Order Mf.  In particular Standing Order Mf7

expressly provides that correspondence between an inmate and his legal

adviser about a petition to the Commission or proceedings resulting

therefrom should not be read unless the Governor has reason to suppose

that the correspondence contains other matters.

        The Government state that in practice, as regards

correspondence between prisoners and the Commission, outgoing letters

if sealed will normally go unopened.  Incoming letters from the

Commission are opened; the contents are examined to confirm that they

are what they purport to be but they are not read; they are thereafter

issued promptly to the prisoner.

COMPLAINTS

        The applicant complains of interference with his correspondence

with his solicitor and invokes Articles 8 and 10 of the Convention.

The applicant submits that as his prison of classification, Peterhead,

is over 200 miles from his solicitor in Glasgow, it is impossible

always to receive advice or consult in person at interview and that

accordingly much information passes, and consultation takes place, by

correspondence between the applicant and his solicitor.  As several of

the matters which the solicitor is dealing with concern allegations

against prison officers, the applicant submits that it is totally

unacceptable for his correspondence to be examined by prison officers.

        The applicant also submits that he is under pressure by the

actions of the prison authorities to restrict his contact with his

solicitor to such occasions when the solicitor is able to take the

journey to visit the applicant in prison.  While the applicant does

have the option of continuing to correspond with his solicitor and

the Commission, he must do so in the knowledge that the information

and advice contained in these letters will be read and noted by the

prison authorities.

        The applicant also complains of the opening of a letter to his

Member of Parliament.

        Finally, the applicant complains of a violation of Article 6

para. 1 of the Convention in that he has been refused legal aid to

challenge in the civil courts the actions of the prison authorities

in respect of his correspondence.  He has no income or capital to meet

the costs of such proceedings personally.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 14 January 1986 and

registered on 5 February 1988.  On 13 July 1988, the Commission

decided to invite the respondent Government to submit observations on

the admissibility and merits of the applicant's complaints.  The

Government submitted their observations on 1 December 1988 and the

applicant replied on 7 March 1989.  Further information was submitted

by the applicant on 12 May 1989 and by the Government on 23 May 1989.

        On 17 March 1989, the Commission decided to grant legal aid

to the applicant.

        On 7 September 1989, the Commission decided to invite the

parties to submit oral observations on the admissibility and merits of

the application.  At the hearing, held on 8 November 1989, the parties

were represented as follows:  the respondent Government by Mr.  Wood,

Agent, Mr.  MacKay, QC, Mrs.  MacDonald (Scottish Office) and Mr.  Reeves

(Scottish Home and Health Department), Advisers; the applicant, by

Miss Clark, Solicitor.

THE LAW

1.      The applicant has complained of being refused legal aid to

take proceedings in the civil courts to challenge the actions of the

prison authorities in interfering with his correspondence.  He invokes

Article 6 para. 1 (Art. 6-1) of the Convention which provides, in its first

sentence:

        "In the determination of his civil rights and obligations

        or of any criminal charge against him, everyone is entitled

        to a fair and public hearing within a reasonable time by an

        independent and impartial tribunal established by law."

        The Commission recalls that while the decision of the European

Court of Human Rights in the Airey case (Eur.  Court H.R., Airey

judgment of 9 October 1979, Series A no. 32) held that Article 6 para.

1 (Art. 6-1) guarantees to litigants an effective right of access to

the courts for the determination of their "civil rights and

obligations", the Court also made it clear that there was no

obligation on the State to provide free legal aid for every dispute

relating to a "civil right". Further, the case-law of the Commission

holds that where an applicant is refused legal aid on the basis that

his claim lacks reasonable prospects of success, this would not

constitute a denial of access to court unless it could be shown that

the decision to refuse legal aid was arbitrary (see e.g.  No. 8158/78,

Dec. 10.7.80, D.R. 21 p. 95).

        The Commission recalls that in the present case the

applicant's application for legal aid was refused on the basis that he

had no probable cause of action and it finds no indication of

arbitrariness in this decision.  The Commission concludes therefore

that this complaint does not disclose any appearance of a violation of

Article 6 para. 1 (Art. 6-1) 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.

2.      The applicant has complained of the opening of a letter sent

by him to his Member of Parliament.  The Commission has examined this

complaint under Article 8 (Art. 8) of the Convention which 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 Commission refers to the case-law of the Convention organs

to the effect that the supervision of prisoners' correspondence, while

an interference with their right to respect for correspondence, is in

general justified under the provisions of Article 8 para. 2 (Art. 8-2) (Eur.

Court H.R., Silver and Others judgment of 25 March 1983, Series A

no. 61, p. 38, para. 98; Silver and Others v. the United Kingdom,

Comm.  Report of 11.10.80, para. 424) as necessary in a democratic

society for the prevention of disorder and crime.

        The Commission recalls that the letter in question was not

stopped or delayed in any way and in these circumstances finds no

indication of a violation of Article 8 (Art. 8) 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.

3.      The applicant has next complained of the opening of his

correspondence with his solicitor.  He has also brought it to the

attention of the Commission that correspondence from the Commission

was opened by the prison authorities.  He invoked Article 8 (Art. 8) and

Article 10 (Art. 10) of the Convention in relation to the alleged interference

with his correspondence.  The Commission recalls, however, that where

interference is alleged in the communication of information by

correspondence Article 8 (Art. 8) is the lex specialis and no separate issue

arises under Article 10 (Art. 10) of the Convention (cf. aforementioned Silver

judgment p. 9, paras. 106-107).  The Commission will therefore

examine the applicant's complaints under Article 8 (Art. 8) of the

Convention.

        The respondent Government have contended that the applicant

has not exhausted domestic remedies in respect of his complaints of

interference with his correspondence.  The Commission recalls however

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;  Commission's decision on admissibility of Application

No. 9013/80, Dec. 11.12.82, D.R. 30, p. 96, para. 102).  The

Commission notes that the respondent Government make no reference to

any particular remedy beyond the possibility of petitioning the

Secretary of State.  The Commission recalls however that the applicant

and his solicitor raised the problem of the opening of the applicant's

correspondence with his solicitor on numerous occasions with the

authorities and the applicant made complaint of the opening of his

correspondence with the Commission in his petitions of 19 and 27 June

1986.  In this respect the Commission finds that the applicant has

complied with Article 26 (Art. 26) of the Convention.

        The respondent Government have also submitted that the

applicant has failed to comply with the six months time-limit imposed

by Article 26 (Art. 26) of the Convention in respect of his complaints of the

opening of correspondence from the Commission.  The Commission notes

however that the applicant brought the matter to the attention of the

Commission in various letters, e.g. his letters of 26 November 1986,

28 November 1986, 25 October 1987, 3 November 1987 and December 1987.

The first of these letters are within six months of the Secretary of

State's reply dated 15 July 1986 to the applicant's petition of 19 and

27 June 1986.

        Consequently, the Commission finds that in this respect the

applicant has complied with Article 26 (Art. 26) of the Convention.

        The Commission has examined the parties' observations

concerning the applicant's complaints about his correspondence with

his solicitor and the Commission under Article 8 (Art. 8) of the Convention.

It considers that these complaints raise difficult issues of fact and

law which are of such complexity that their determination should

depend on a full examination of the merits.  These complaints cannot

therefore be declared inadmissible as being manifestly ill-founded

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

Convention, but must be declared admissible, no grounds for declaring

them inadmissible having been established.

        The Commission has also examined the complaints of the opening

of the applicant's correspondence with the Commission under Article 25

para. 1 (Art. 25-1) which provides:

        "The Commission may receive petitions addressed to the

        Secretary-General of the Council of Europe from any person,

        non-governmental organisation or group of individuals claiming

        to be the victim of a violation by one of the High Contracting

        Parties of the rights set forth in this Convention, provided

        that the High Contracting Party against which the complaint

        has been lodged has declared that it recognises the competence

        of the Commission to receive such petitions.  Those of the

        High Contracting Parties who have made such a declaration

        undertake not to hinder in any way the effective exercise of

        this right."

        The Commission considers that these complaints justify a

further investigation also under Article 25 para. 1 (Art. 25-1) in

fine of the Convention.

        For these reasons, the Commission

        DECLARES INADMISSIBLE the applicant's complaints

        concerning refusal of legal aid and his complaint concerning

        the opening of a letter to a Member of Parliament;

        DECLARES ADMISSIBLE, without prejudging the merits, the

        applicant's remaining complaints concerning interference with

        his correspondence (Article 8 of the Convention);

        DECIDES TO EXAMINE FURTHER whether the opening of the

        applicant's correspondence with the Commission was compatible

        with Article 25 para. 1 of the Convention.

Deputy Secretary to the Commission        President of the Commission

           (J. RAYMOND)                         (C.A. NØRGAARD)