AS TO THE ADMISSIBILITY OF
Application No. 14462/88
by William BALLANTYNE
against the United Kingdom
The European Commission of Human Rights sitting in private
on 12 April 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
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 RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 13 September 1988
by William BALLANTYNE against the United Kingdom and registered
on 12 December 1988 under file No. 14462/88;
Having regard to
- the reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the Government on 27 April 1990;
- the observations of the applicant submitted on 6 August 1990.
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1959 and currently
serving a life sentence in Peterhead Prison. He is represented by
Cameron Fyfe, a solicitor practising in East Kilbride. The facts as
submitted by the parties may be summarised as follows.
On 20 January 1983 the applicant was convicted of murder and
assault and sentenced to life imprisonment.
Shortly after his conviction, the applicant was transferred to
Peterhead Prison.
Following an incident in December 1983, the applicant was
charged with escape from his cell, theft and damage in prison
property. Following his trial, he was found guilty and sentenced to
one year's imprisonment. He was then placed on the strict escapers'
list and held in restricted association under Rule 36 of the Prison
(Scotland) Rules 1952 from December 1983 until May 1984.
Following an incident on 12 March 1984, the applicant was
tried on charges of assault on prison officers and sentenced to a
further three months' imprisonment.
On 15 May 1984, the applicant was taken off the restrictions
under Rule 36.
On 21 August 1984, the applicant was charged with attempted
murder of a prison officer, following injuries caused to an officer by
his home-made knives. He was found guilty of a charge of assault and
sentenced to five years' imprisonment.
On 6 October 1984, while being transferred between prisons,
the applicant attempted to escape.
In January 1986, the Peterhead Security Board recommended that
the applicant be regraded from security category B to category A.
Following a major incident in Peterhead prison in which a
prison officer was taken hostage and "A" Hall seriously damaged by
fire, the applicant was placed under Rule 36 and then on 20 November
1986 moved to the Inverness Unit. At the end of November the
applicant embarked on a "dirty protest" which lasted until the end of
December 1986. While held in the unit, the applicant is recorded as
having been abusive to staff and having assaulted staff by throwing
hot tea at two officers and punching two officers.
On 4 March 1987, the applicant was sentenced to ten years'
imprisonment on charges of mobbing, rioting, assault and setting fire
to "A" Hall in Peterhead Prison in November 1986.
On 5 March 1987, the applicant was returned to the Inverness
Unit.
In May 1987, the applicant returned to Peterhead Prison.
On 26 June 1987, 4 August 1987 and 6 November 1987, the
applicant was involved in assaults on prison staff. In the latter
incident, the applicant was sentenced to 30 days' imprisonment for
assaulting a prison officer by slashing his face with a piece of glass
after he had broken a window pane.
The applicant was transferred to Aberdeen Prison on
22 November 1987 because of his disruptive influence at Peterhead.
On 6 September 1988, the applicant was returned to "A" Hall
Peterhead on limited association in recognition of his good behaviour
at Aberdeen.
Since November 1987, the applicant has received only one
misconduct report.
On 27 March 1989, the Governor at Peterhead Prison recommended
that in light of the remarkable change in the applicant's attitude and
conduct, he should be assessed for transfer to the Barlinnie Special Unit,
Glasgow. A formal assessment was carried out and it was recommended
that the unit assist the applicant in making further progress.
In September 1978, the applicant was regraded to security
category B, though still subject to strict escape precautions.
On 1 December 1989, the applicant was transferred to the
Barlinnie Special Unit.
a) Visits
Following his conviction for murder in January 1983, the
applicant was classified for Perth Prison. For long periods, however,
he was detained in Peterhead, Inverness and Aberdeen, which are
located in the north of Scotland several hundreds miles from Glasgow
where the applicant's close relatives live.
Records indicate that the applicant was transferred to
Barlinnie prison on a number of occasions to enjoy accumulated visits
i.e. from 21 June 1984 to 18 July 1984, from 10 June 1985 to
10 July 1985, from 25 August 1987 to 25 September 1987, from
27 May 1988 to 23 July 1988 and from 15 September 1989 to
29 November 1989. The applicant also was granted escorted home visits
to Glasgow on 21 October 1987 (to visit his mother in hospital), on
14 November 1988, 30 June 1989, 20 October 1989 and 22 November 1989.
The records also indicate that the applicant has been
regularly visited in prison by his father, sister, son and other
members of his family and that members of his family have been granted
financial assistance towards travel expenses by the Assisted Prison
Visits Scheme which started in April 1989.
b) Solitary confinement
The applicant has been held under Rule 36 of the Prison
(Scotland) Rules 1952 for the following periods:
- in Peterhead from December 1983 to 15 March 1986
- in Inverness from 19 November 1986 to 20 February 1987 and
from 5 March 1987 to 30 April 1987 and
- in Aberdeen from 20 February 1987 to 5 March 1987,
from 22 November 1987 to 28 March 1988,
from 23 June 1988 to 16 July 1988 and
from 23 July 1988 to 6 September 1988.
The applicant has not been held out of association since
6 September 1988. He complains that during this time he has had
virtually no contact with other prisoners and has effectively been
deprived of conversation.
c) Exercise
The applicant is entitled to one hour exercise each day.
Since the exercise is outdoor, it can only take place when the weather
permits. Since the weather is frequently inclement in this area of
Scotland and the prison does not provide indoor exercise facilities,
the applicant claims that he has to go without exercise. He has also
been forced to perform his exercise with handcuffs on 10 occasions
between 2 September 1987 and 1 October 1987.
The Government submit that while there are no indoor exercise
facilities for prisoners held under Rule 36 in Peterhead, prisoners
are supplied with duffle coats to enable them to exercise outdoors if
they wish. Similarly, in Inverness, donkey jackets were available for
prisoners who wished to exercise outside in bad weather and when
weather is particularly bad they are permitted to exercise in the
Unit corridors. The Unit records show that the applicant took exercise
regularly and made full use of the exercise periods.
The Government confirm that during the applicant's detention
in Barlinnie Prison in late summer 1987 (to enjoy accumulated visits)
opportunities for exercise were limited due to operational
difficulties, as a result of the presence of a number of Security A
prisoners awaiting trial at that time. They also confirm that the
applicant had during that time to take exercise in handcuffs but submit
that this was because he had a long record of violent incidents and
was a very high security risk. Since Barlinnie Prison does not
normally hold category A prisoners, special measures had to be taken.
In January 1988, an exercise bike was purchased by Barlinnie Prison to
alleviate the exercise problem and the applicant is recorded as having
made use of it in his subsequent stays in Barlinnie.
d) Conditions of his cell
From January to March 1985, the applicant was detained in
Peterhead in the "dark cell" which had no natural light and in which
electric light was kept on 24 hours per day. The Government state
that the applicant was moved to this cell on the ground floor for
security purposes following an attempt by the applicant to take an
officer hostage. The applicant, who was charged with an offence in
this connection, though the case was found not proved, denies this
incident. The Government submit that due to the constant damage to
cell windows at that time, the cell window had been fitted with a
metal plate perforated to allow air to enter. It was therefore
necessary to use artificial light at all times.
From 30 April 1987 to 25 August 1987, the applicant was kept
in a cell with 6 missing panes in the cell-window, which he alleges
that the authorities refused to repair.
The Government accept that there may have been periods when
glass was missing from the window of the applicant's cell but state
that during this period prisoners were conducting a course of
destruction within the cell block and as soon as glass was replaced it
was being smashed. The Government state that there is no record of
the applicant complaining of cold and that he would have been given
extra blankets if he had done so.
On 6 November 1987 the applicant complains that he was kept in
a cell known as the "silent cell" or "isolation cell". This cell, 12
feet by 10, contained no furniture whatsoever and is a cell within a
cell. The only light came from a small window in the ceiling. The
Government state that prison records indicate that the applicant was
held there overnight only for a cooling down period, following his
assault on an officer with a piece of glass.
From 19 November 1986 to 20 February 1987 and from 5 March
1987 to 30 March 1987, the applicant was detained in Inverness
prison. The cell was 11 feet by 7 feet and contained only a mattress
laid upon a concrete block. The applicant states that he was obliged
continuously to request for the mattress to be changed since it was
not dry enough to lie upon. He was given 3 blankets which he
complains were not adequate during the winter which was extremely
cold. There was also a speaker in his cell linked to the prison
radio, which was frequently switched on in the early hours of the
morning when the applicant was asleep or trying to sleep.
The Government accept that there was a problem with dampness
caused by condensation during this time. There is no record, however,
of the applicant requesting a replacement mattress. If a prisoner had
complained of dampness in a mattress, the mattress would have been
replaced or aired and cleaned. If a prisoner complained of cold,
additional blankets would be issued by staff. The Unit records only
indicate that on 14 March 1987 the applicant wanted his heating turned
off. As regards the radio, the Government submit that a speaker is
located in each cell and run from a radio in the staff area,
controlled by staff who adjust sound and programme to suit each
individual. Occasionally, a mistake may have been made and the radio
switched on in the wrong cell. On 16 February 1987, the radio was
removed for repair and a replacement installed in the corridor. It
was switched on in the evening from 22.00h to 00.05h on 16 February
1987 and from 22.00h to 00.00h on 17 February 1987 at the request of
other prisoners and it may have been this period to which the
applicant refers.
e) Prison allowance
The applicant states that he receives only £2.50 as an
allowance per week to cover the purchase of items such as stamps,
shampoo, toothpaste and cigarettes. He considers this amount
inadequate. The Government submit that there was a free issue of
toothpaste and shampoo and one letter provided for each week. They
submit that the applicant's earning cards indicate that he seldom
spent all his earnings. Also, prisoners had access to personal funds
i.e. money sent by relatives and friends for items such as batteries
for radios etc.
f) Lack of work
While the applicant was placed under Rule 36, he had no
opportunity to carry on any form of work, such as the repair of mail
bags or fishing nets. He has thus been deprived of work to help
occupy his mind and give him a sense of purpose and achievement.
The Government submit that is was not possible in the
Inverness Unit to find work which was not ruled out for security reasons,
tools and weapons being too readily used as weapons or for other
inappropriate purposes. Prisoners had access to books and several
daily newspapers and prisoners were also allowed to pursue educational
or training activities.
f) Refusal of permission to wear gloves
The applicant alleges that on 2 December 1983 his right
hand was injured by a prison officer who assaulted him after an
attempted escape. The applicant considers that the injury was not
treated adequately at the time, the fingers merely being taped and
since then the applicant has experienced extreme pain and difficulty
in manoeuvring his fingers. While in Barlinnie Prison in
August-September 1987, he states that the doctor advised him to keep
his hands warm to prevent the risk of severe rheumatoid arthritis in
the injured fingers. By a note dated 16 November 1987, the doctor
gave his opinion that the applicant did have signs of rheumatism in
two of his fingers.
The Government submit that the applicant's injury to his hand
was self inflicted during an attempted escape. On his recapture he was
examined by a member of the nursing staff and made no complaint of an
injury to his hand. The next day, he complained of pain in his right
hand and was examined by a doctor, who applied a strapping. The
doctor took the view that the applicant was suffering from a swollen
middle finger.
Following a letter from the applicant's solicitor, the
authorities granted permission for the applicant to be examined by an
external doctor. No action for damages was instituted, however, in
respect of any alleged injury. The Government can find no record of
any request by the applicant for gloves, and his medical records
contain no reference to gloves or complaints of feeling the cold in
his hand.
The Government accept that the applicant was put in report on
22 October 1985 for offending against discipline and creating a
nuisance, when the applicant was told to take his hands out of his
pockets. The report of the subsequent evening indicates that the
applicant made no mention of attempting to keep his fingers warm. The
Government submit that no medical officer has diagnosed that the
applicant sustained a fracture of his fingers and the medical advice
available to the Secretary of State indicates that the applicant is
not suffering from rheumatical arthritis but multiple joint strain.
Petitions to the Secretary of State
The applicant has petitioned the Secretary of State more than
forty times during his imprisonment, including petitions about his
removal from association from other prisoners under Rule 36 of the
Prison Rules. In a reply dated 12 July 1985 the Secretary of State
informed the applicant that he had to show that he was capable of
improved behaviour without causing an extreme threat to staff before
being taken off Rule 36. A similar reply on 28 January 1986 informed
him that he was being held under Rule 36 due to his behaviour.
On 6 November 1987 the applicant petitioned the Secretary of
State concerning the medical treatment and being required to wear
handcuffs while exercising. By reply dated 22 December 1987, the
Secretary of State considered that the applicant was receiving
adequate medical treatment and that there was no indication of a
diagnosis of rheumatoid arthritis. The handcuffing was indicated as
necessary in view of the applicant's record.
On 26 November 1987, the applicant petitioned the Secretary of
State concerning inter alia the conditions of detention at Inverness
(i.e. facilities for exercise, lack of association, the condition of
his cell, the radio, wages, medical treatment). By petitions dated
2 December 1987 and 3 December 1989 the applicant complained further of
the swelling in his fingers, that prison staff ordered him to keep his
hands out of his pockets while exercising outside and that he had been
placed on report for refusing to take his hands out of his pockets in
October 1983.
By reply dated 26 February 1988, the applicant was informed
inter alia that the conditions of detention in the Inverness Unit
conformed with statutory requirements and the Prison Rules, that the
amount of wages was satisfactory and that the conditions under which
he was held were justified by his many subversive activities and
record of assaults on prison staff. It was also stated that the radio
facilities were provided in accordance with Unit Instructions and that
there was no record of the applicant complaining at the time. As
regards his medical treatment, reference was made to previous
replies.
On 10 February and 23 March 1988, the applicant petitioned the
Secretary of State concerning the difficulties that his family faced
in visiting him in the north of Scotland. By a reply dated
3 June 1988, it was pointed out that the applicant's location was a
direct consequence of his behaviour (49 misconduct reports and
additional prison sentences totalling 16 years and 9 months for
offences committed in prison). He was informed that his allocation to
a prison in central Scotland depended on his maintaining satisfactory
conduct. It was also pointed out to him that he had been briefly
transferred to Barlinnie prison in Glasgow to assist him in
maintaining contact with his mother who was in poor health.
On 9 May 1988 the applicant's solicitors wrote to the
Secretary of State giving details of the applicant's various
complaints and giving an opportunity to remedy the complaints before
submitting an application to the European Commission of Human Rights.
By letter dated 7 October 1988, the Scottish Home and Health
Department replied that the applicant's location was influenced by the
applicant's conduct but that the authorities had had regard to the
applicant's family circumstances and had transferred him temporarily
to Glasgow on 3 occasions when his mother was in hospital. They
acknowledged that, as regards the applicant's complaints of dampness
of his cell, there had at the relevant time been a problem with the
heating in the Inverness unit and resulting problems of condensation.
They also stated in relation to the applicant's complaints of a broken
window that there was no trace of the applicant having complained of
this through normal channels at the time. As regards the fact that
the applicant was held in a cell in Peterhead without natural light,
it was stated that a plate had been put over the window in that cell
as it had been the practice of particularly disruptive prisoners to
smash the cell window and, due to the applicant's behaviour at that
time, there was good reason to hold him in a cell without access to
glass which could be used as a weapon.
RELEVANT DOMESTIC LAW AND PRACTICE
The system of prisons in Scotland was governed at the relevant
time by the Prisons (Scotland) Act 1952 ("the Act"). In exercise of
his powers under the Act, the Secretary of State made the Prison
(Scotland) Rules 1952 ("the Rules"). To supplement these provisions,
the Secretary of State issues advice and instructions by way of
administrative orders known as the Prison (Scotland) Standing Orders.
Classification of prisoners
Under Rule 7 of the Rules convicted prisoners are classified
in accordance with instructions given by the Secretary of State.
Standing Order Fb10 sets out the security categories and how prisoners
shall be allocated to them. All prisoners are placed in one of the
four security categories A, B, C or D. Prisoners in category A are
those who require the highest degree of security, and must in no
circumstances be allowed to escape because of considerations of public
safety or national security. The number of category A prisoners held
at any one time in Scotland is very small. Those in security
classification B are those who require to be kept in very secure
conditions.
In addition, the Governor of a prison must assess which
prisoners need to be subject to special precautions having regard
amonst other things to the potential risk of escape. Prisoners placed
on "strict escape precautions" are subject to special conditions
affecting their location and movement within an establishment.
The Inverness Segregation Unit
Inverness is a small local prison serving courts in the north
of Scotland. In 1966 a Departmental Working Party recommended that a
unit be set up within the prison to which particularly difficult
prisoners should be sent. The expected profile of such prisoners would
be a record of previous subversive behaviour usually accompanied by
violence against other prisoners and/or staff.
Following a period of disuse, the Unit's purpose has been
redefined as providing a secure place of segregation for a limited
period for those prisoners who through their violence, subversive and
recalcitrant behaviour were seriously disrupting the institutions in
which they were accommodated, who had not responded to appropriate
forms of treatment in those establishments, and who had flagrantly
refused to cooperate in the course of normal prison routine. At the
same time the Unit offers a special measure of protection for staff.
Rule 36 - Restriction of Association
Rule 36 of the Rules provides as follows:
"(1) If at any time it appears to the Visiting Committee or
to the Secretary of State that it is desirable for the
maintenance of good order or discipline, or in the interests
of a prisoner, that he should not be employed in association
with others, the Visiting Committee or the Secretary of
State may authorise the Governor to arrange for him to work
in a cell, and not in association, for a period not
exceeding one month from the date of each authorisation.
(2) The Governor may arrange for any such prisoner to be
employed in association again whenever he considers this
desirable, and he shall so arrange if in any case the
Medical Officer so advises on medical grounds."
This rule enables a Governor to hold a prisoner out of
association with other prisoners in the interest of good order and
discipline or where it is necessary in the interest of the prisoner.
Although it relates to restrictions on association at work it may also
involve some restriction on association at recreation also. Prisoners
are held under Rule 36 for a variety of reasons, for example where
their behaviour has been disruptive or they represent a risk to other
prisoners and staff.
Although the operation of the rule inevitably varies between
establishments, it does not amount in any sense to solitary
confinement. A prisoner retains all his normal rights including
visits.
COMPLAINTS
The applicant complains of the following violations of the
Convention:
a) of Articles 8 and 10 of the Convention in respect of the
difficulties experienced by his family in visiting him in Peterhead
Prison. Peterhead is 200 miles from Glasgow and as most of his
relatives (including his mother, stepfather and sister) are unemployed
it is difficult for them to afford the bus or train fares. His mother
also suffers from a severe heart condition and on medical advice
cannot undertake the ten hours of travelling involved in going to
Peterhead;
b) of Article 3 of the Convention in respect of the inhuman and
degrading treatment he has suffered in prison as a result of:
i) being deprived of contact with other prisoners while in
solitary confinement,
ii) being refused daily exercise and being obliged to
exercise while handcuffed,
iii) the conditions of his cell in Inverness and Peterhead
Prisons,
iv) the inadequate weekly allowance,
v) being deprived of work,
vi) being prevented from protecting his injured fingers
through wearing gloves.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 September 1988 and
registered on 12 December 1988.
On 9 November 1989, the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits.
The observations of the respondent Government were submitted
on 27 April 1990 after three extensions in the time-limit and the
observations in reply submitted by the applicant on 6 August 1990
after one extension in the time-limit.
The Commission granted the applicant legal aid on 18 May 1990.
The Commission examined the application on 7 December 1990 and
adjourned it for further consideration.
THE LAW
1. The applicant complains of being detained in prisons in the
north of Scotland, which creates great difficulties for his family to
visit him. He invokes 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 recalls that the applicant is lawfully detained
following his conviction for murder in 1983. The Commission 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 the 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,
No. 5712/72, Dec. 15.7.74, Collection 46 p. 112 and No. 9054/80,
Dec. 8.10.82, D.R. 30 p. 113).
The Commission notes in the present case that the Scottish
Home and Health Department stated that the applicant's location in the
more secure prisons of the north was a result of his history of
violence and further offences. The Commission also notes that the
authorities have made arrangements on five occasions for the
applicant to be transferred temporarily to Glasgow to be visited by
his mother and other relatives. The applicant has also enjoyed
escorted home visits on five occasions.
In the light of these circumstances, the Commission finds that
insofar as the detention of the applicant hundreds of miles from his
family may be construed as an interference with his right to respect
for his family life, it is justified as being in accordance with the
law and necessary in a democratic society for the prevention of
disorder and crime within the meaning of Article 8 para. 2 (Art. 8-2)
of the Convention.
The applicant also invokes Article 10 (Art. 10) of the
Convention, in respect of the above complaint. However, the
Commission considers that no separate issue arises under Article 10
(Art. 10).
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 applicant also complains of suffering inhuman and
degrading treatment contrary to Article 3 (Art. 3) of the Convention,
which provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The applicant complains in this regard of being placed in
solitary confinement, of the conditions of his cell, of being deprived
of daily exercise, of the inadequate weekly allowance, of being deprived
of work and of being prevented from wearing gloves.
The Government have submitted that the applicant has failed to
exhaust domestic remedies in respect of his complaints since, inter
alia, he has not instituted proceedings for damages or for judicial
review against the Secretary of State. The Government also submit
that, even if the applicant can be said to have exhausted all
available remedies, his complaints are time-barred since he has failed
to introduce them within six months of the final decisions, i.e. the
replies made to his petitions to the Secretary of State.
As regards exhaustion of domestic remedies, the Commission
recalls that Article 26 (Art. 26) of the Convention only requires the
exhaustion of such remedies which relate to the breaches of the
Convention alleged and at the same time can provide effective and
sufficient redress. An applicant does not need to exercise remedies
which, although theoretically of a nature to constitute a remedy, do
not in reality offer any chance of redressing the alleged breach (cf.
Application No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).
It is furthermore established that the burden of proving the
existence of the 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; Application No.
9013/80, Dec. 11.12.82, D.R. 30 p. 96, p. 102).
The Commission notes that the applicant has complained of
injury to his hand, the failure of the prison authorities to give him
proper medical care and the damaging effect of the refusal to allow
him to wear gloves.
In the present case the applicant failed to institute
proceedings claiming damages in respect of the injury to his hand and
alleged medical negligence and has, therefore, not exhausted the
remedies available to him under Scottish law. Moreover, an
examination of the case as it has been submitted does not disclose the
existence of any special circumstances which might have absolved the
applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at his
disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and this aspect of
his complaints must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
As regards the applicant's other complaints, the Commission is
not satisfied that an effective remedy would be provided by judicial
review proceedings. It finds, however, that it is not required to
decide whether or not the facts alleged by the applicant disclose any
appearance of a violation of the Convention, as Article 26 (Art. 26)
of the Convention provides that the Commission "may only deal with the
matter ... within a period of six months from the date on which the
final decision was taken".
In the present case, the applicant introduced his application
on 13 September 1988. However, he had petitioned the Secretary of
State with regard to his complaints and received replies prior to
13 March 1988. In particular, the applicant's complaints concerning
conditions of his cell in Inverness and Peterhead were dealt with in
the reply of 26 February 1988, the lack of exercise in the replies of
22 December 1987 and 26 February 1988, the lack of contact with other
prisoners while on restricted association in the replies inter alia of
12 July 1985 and 28 January 1986 and the amount of allowance and lack
of work in the reply of 26 February 1988. The fact that the same
matters were raised in a letter by the applicant's solicitors dated
9 May 1988 to the Secretary of State and a reply was received dated
7 October 1988 is not capable of interrupting the running of the six
months time limit, since the applicant had already utilised this
remedy on previous occasions with regard to the same subject matter.
It follows that this part of the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy