Ella, Nora, William and Marian O’Dwyer V. UK

AS TO THE ADMISSIBILITY OF

Application No. 20487/92
by Ella, Nora, William and Marian O’DWYER
against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting
in private on 1 September 1993, the following members being present:

MM.   A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
Mrs.  J. LIDDY
MM.   M.P. PELLONPÄÄ
G.B. REFFI
N. BRATZA

Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 July 1992 by
Ella, Nora, William and Marian O’Dwyer against the United Kingdom and
registered on 12 August 1992 under file No. 20487/92;

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 first applicant is an Irish citizen born in 1959 and
currently serving a prison sentence in Durham Prison, England.

The second applicant is the mother of the first applicant.  She
was born in 1928.  She is an Irish citizen and resides in County
Tipperary, Ireland.

The third applicant is the father of the first applicant.  He was
born in 1921.  He is an Irish citizen and resides in County Tipperary,
Ireland.

The fourth applicant is the sister of the first applicant.  She
was born in 1957.  She is an Irish citizen and resides in County
Tipperary, Ireland.

The applicants are represented by Peter Madden, a solicitor
practising in Belfast.

The facts of the present case, as submitted by the applicants,
may be summarised as follows:

The first applicant was arrested on 22 June 1985 in Scotland.
She was charged with conspiracy to cause explosions on mainland
Britain.  She was sentenced to life imprisonment. The first applicant
has been classified as a Category A prisoner.

The first applicant has requested that she serve her sentence of
imprisonment in a prison in Northern Ireland in order to be near to her
family and friends.  The first applicant was born in Tipperary,
Ireland, and resided there all her life.  Almost all her family members
reside in Ireland.  Her only relative in England is one of her
brothers.  Her request for transfer has been refused by the British
Home Office on 7 August 1986, 1 December 1989 and 20 July 1990.  The
refusals were based on security grounds as “the Secretary of State has
fully considered the petition but … he is not satisfied that, if
transferred, (the applicant) would not disrupt or attempt to disrupt
any prison establishment in Northern Ireland”.  Another petition of the
applicant of 19 February 1992 is still pending before the authorities.

The second and third applicant are pensioners and live on an
income of £105 (Irish) per week.  They also suffer from travel sickness
and are very easily fatigued due to age on long journeys.

The fourth applicant is in full-time employment with a salary of
£250 (Irish) per week. Each visit of the first applicant requires her
to forfeit five days’ work or take annual leave.

No State assistance exists for prison visits in the Republic of
Ireland.

The second and third applicants visit the first applicant once
a year.  The fourth applicant visits the first applicant twice a year.
The estimated travel cost per trip of these visits is £350 (Irish).
If the first applicant were to be serving the remainder of her sentence
in Northern Ireland the estimated cost of travel would be £40 (Irish).

It is alleged that, for Irish nationals, travel to England is
dominated by fear and anxiety of arrest, detention, strip-searching and
general harassment from the security forces acting under the Prevention
of Terrorism Act.

The first applicant 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 (Standing Order):

“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
“parents and sister”.  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 three 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 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 a 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.

THE LAW

1.    The applicants complain that the refusal to transfer the first
applicant to a prison in Northern Ireland to facilitate visits from her
family is a violation of Article 8 (Art. 8) of the Convention.

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

“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 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 has considered whether the relationship between
the applicants constitutes family life within the meaning of Article 8
(Art. 8) of the Convention.  It notes that the second and third
applicants are the parents and that the fourth applicant is the sister
of the first applicant.  It recalls that it has held that in the
context of prisoners or other persons who are detained the concept of
“family life” must be given a wider scope than in other situations:
“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.'”

(No. 19085/91, Dec. 9.12.92, to be published in D.R.).

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 (e.g. No. 9054/80, Dec.
8.10.82, D.R. 30 p. 113, and No. 15817/89, Dec. 1.10.90, to be
published in D.R.).

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 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 be positive obligations inherent in an effective “respect” for
family life (see e.g. Eur. Court H.R., Marckx judgment of 13 June 1979,
Series A no. 31, p. 14 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 e.g. Eur. Court H. R., Abdulaziz, Cabales and
Balandali judgment of 28 May 1985, Series A no. 94, p. 33 para. 67, and
the B. v. France judgment of 25 March 1992, to be published in Series
A no. 232-C, para. 44).

The Commission recalls that in the present case the first
applicant, who is from Ireland, is detained in a prison in England and
that she has requested a transfer to facilitate visits from her family,
including the second, third and fourth applicants.  The Commission
notes that the first applicant is serving a term of life 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
prisoner.  Any transfer would be arguably highly dangerous, increasing
greatly the risk of escape.

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 her confinement and that a separation of a detained person
from her 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. 18.7.74, Collection 46 p.
112).  The Commission considers that only in exceptional circumstances
will the detention of a prisoner a long way from her 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 she 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 her
category as regards correspondence and visits.  The second, third and
fourth applicants are entitled to visit the first applicant. The second
and third applicant visit her once a year, the fourth applicant visits
her twice a year.

Having regard to the above circumstances, the Commission finds
that the decision of the United Kingdom Government to refuse 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.

2.    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 as follows:

“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 Commission
recalls that the first applicant was refused transfer on security
grounds.  Insofar as this refusal can be said to be motivated by the
first applicant’s status as an Irish Republican prisoner, the
Commission considers that different considerations concerning security
apply to different prisoners.  It recalls that the first applicant is
a Category A (high security or exceptional risk) prisoner convicted in
relation to terrorist offences. In these circumstances, her 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.

3.    The applicants also complain 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 rejected the applicants’
complaints under Articles 8 and 14 (Art. 8, 14) of the Convention, no
lack of respect for family life or unlawful discrimination having been
disclosed.  In these circumstances, the Commission also finds that the
applicants cannot be said to have an “arguable claim” of a violation
of the Convention necessitating an Article 13 (Art. 13) remedy.

It follows that this part of the application must also be
rejected as being 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.

Secretary to the First Chamber        President of the First Chamber

(M. F. BUQUICCHIO)                       (A. WEITZEL)