Sean Kinsella, Agnes Kinsella and Pearl Mulvaney V. UK

FIRST CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 19200/91
by Sean KINSELLA, Agnes KINSELLA
and Pearl MULVANEY
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 28 November 1991
by Sean KINSELLA, Agnes KINSELLA and Pearl MULVANEY against the United
Kingdom and registered on 16 December 1991 under file No. 19200/91;

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 first applicant is an Irish citizen born in 1943 and
currently serving a prison sentence in HM Prison Full Sutton in
England. The second applicant, who is the mother of the first
applicant, is an Irish citizen born in 1915 and resident in Legnakelly,
in the Republic of Ireland. The third applicant, the sister of the
first applicant, is an Irish citizen born in 1945 and resident in
Redhill in the Republic of Ireland.

The applicants are represented before the Commission by Mr. Peter
Madden, a solicitor practising in Belfast.

The facts as  submitted by the applicants and as appear from the
documents, may be summarised as follows.

The first applicant was arrested in England and tried on counts
of, inter alia, conspiracy to cause explosions and unlawful possession
of explosive substances against the background of an alleged terrorist
campaign in England. On 11 May 1975, the applicant received a sentence
of life imprisonment. It appears that he is detained as a Category A
prisoner.

The first applicant has requested that he serve his prison
sentence in Northern Ireland in order to be near his family and friends
who all reside in Ireland. He was born in Ireland and has resided there
all his life.

His petition to the Secretary of State of 16 July 1990 was
refused on 27 September 1990 on the ground that he was not eligible for
transfer to Northern Ireland since he originated from the Republic of
Ireland and his family were all domiciled there. He was informed that
there was no provision for prisoners to be transferred to the Republic
of Ireland.

The second applicant is 76 years old and suffers from kidney
problems.  Her last visit to the first applicant was in July 1991 (the
first time in four years) and it is unlikely that she can attempt the
journey again.

The third applicant is not entitled to state assistance  for
visits and must pay her own travel and accommodation expenses on
visits. It would be easier and less expensive for her to visit the
first applicant in Northern Ireland.

The applicants submit that the general position for all visitors
travelling from Ireland to England to visit prisoners is the fear of
arrest, detention, strip searching, and general harassment and
hostility by the security services at airports and ports.  The family
members of some prisoners over the years have been detained under the
Prevention of Terrorism Act without reasonable suspicion and held for
varying periods of time and released without charge, sometimes missing
travel connections for the prison visits. Other visitors have been
excluded from visiting England at all under the Prevention of Terrorism
Act.

The first applicant has been repeatedly transferred from prison
to prison throughout the British mainland without proper notice to him
or to his family and this contrasts markedly with the position of
similar prisoners in Northern Ireland who can expect to remain in the
same establishment for the duration of their sentences.   He submits
that there is a policy of regular transfer of Irish Republican
prisoners 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.

The first applicant also 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.

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:

“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
“mother” 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.”

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) 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 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.

The applicants further submit that they have no effective remedy
as required by Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 November 1991 and registered
on 16 December 1991.

On 14 October 1992, the Commission decided to adjourn the case
pending the determination of other applications raising the same
issues.

THE LAW

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

Article 8 (Art. 8) of the Convention 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 has considered whether the relationship between
the applicants constitutes family life within the meaning of Article
8 (Art. 8) of the Convention.  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.’ ”

(See Nos. 18632/91, Dec. 9.12.92, and 19085/91, Dec. 9.12.92, to
be published in D.R.)

The Commission has also stated its 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 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 in addition 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. 15, 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 Balkandali judgment of 28 May 1985, Series A no. 94, p. 33-
34, para. 67 and the B. v France judgment of 25 March 1992, Series A
no. 232-C p.47, para. 44).

The Commission recalls that in the present case the first
applicant, who is from the Republic of Ireland, is detained in a prison
in England and that he has requested a transfer to Northern Ireland to
facilitate visits from his family, including the second and third
applicants.  The Commission notes that the first applicant is serving
a long term of imprisonment and that the considerable distance involved
imposes difficulties, which cannot be said to be negligible, in
utilising visit entitlements.

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 apparently detained as a Category
A prisoner and any transfer would arguably be highly dangerous,
increasing the risk of escape (see also Nos. 18632/91 and 19085/91,
Dec. 9.12.92).

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 his confinement and that a separation of a detained person
from his 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 his 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 applicants submit that there are exceptional circumstances
in that secure alternative accommodation exists in Northern Ireland and
that there is no convincing reason which outweighs the humane
considerations in favour of transfer.  The Commission finds however
that these arguments are insufficient in themselves to constitute
exceptional circumstances.  It notes that the first applicant is
detained in England since he 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 his category as regards correspondence and visits. The
second applicant has only been able to make one visit in the last four
years due to her health. The third applicant is apparently on the
approved list of visitors and has been able to visit though it would
be easier and less expensive for her if the first applicant was
transferred.

Having regard to these circumstances, the Commission finds that
the failure on the part of the United Kingdom Government to provide
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:

“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 the ground
that he did not originate from Northern Ireland. 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 appears to be a Category A prisoner
convicted in relation to terrorist offences. In these circumstances,
his 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 before a national
authority 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 found the applicants’
complaint under Article 8 (Art. 8) of the Convention manifestly ill-
founded.  In these circumstances, the Commission also finds that the
applicants cannot be said to have an “arguable claim” of a violation
of the Convention.

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