PLENARY
AS TO THE ADMISSIBILITY OF
Application No. 17525/90
by Mark DELAZARUS
against the United Kingdom
The European Commission of Human Rights sitting in private on
16 February 1993, the following members being present:
MM. S. TRECHSEL, Acting President
J.A. FROWEIN
F. ERMACORA
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
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 8 January 1990 by
Mark DELAZARUS against the United Kingdom and registered on 5 December
1990 under file No. 17525/90;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- i - 17525/90
- the observations submitted by the respondent Government on
7 February 1992 and the observations submitted by the applicant
on 29 April 1992 and 20 January 1992;
- the hearing of the parties on 16 February 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom, born in 1968,
who at the time of lodging his application was detained in HM Prison
Swaleside, Kent. He is represented before the Commission by Mr. T.
Bancroft, Solicitor with Messrs. John Copland & Son, Solicitors,
Sheerness, Kent.
The facts of the present case, as submitted by the parties, may
be summarised as follows:
A. The particular circumstances of the case
On 13 June 1989 the applicant was convicted at Southwark Crown
Court of wounding with intent to cause grievous bodily harm and assault
on a police officer. He had several previous convictions for criminal
offences and was sentenced to 3 years 3 months' imprisonment. He was
received at HM Prison Wandsworth on 13 June 1989.
On 25 August 1989 the applicant was involved in a serious
incident in the prison. It was alleged that, armed with a razor blade
embedded in a pencil, he attempted to take a female probation officer
hostage. The attempt failed due to the intervention of another
prisoner. The applicant was placed in the Segregation Unit overnight
on the authority of the prison Governor. The following day, he was
charged before the Governor with a disciplinary offence contrary to
Prison Rule 47(22). The Governor had before him a written statement
from the probation officer giving a full account of the incident. He
also had before him two statements by prison officers, neither of whom
had witnessed the incident. One officer had overheard an incriminating
conversation between the applicant and another prisoner shortly after
the incident and the other had come on the scene shortly after the
incident and found the weapon used. Given the serious nature of the
allegation, the Governor adjourned the disciplinary charge and referred
the matter to the police with a view to prosecution in the criminal
courts. On 23 September 1989 the police informed the Governor that
they did not intend to prosecute the applicant. The Governor therefore
re-opened the disciplinary proceedings and decided to refer the matter
to the prison Board of Visitors, on the grounds that the charge was
sufficiently serious that if the applicant were found guilty, his
powers of punishment would be insufficient.
The Board of Visitors considered the matter on 4 October 1989.
At this hearing the applicant applied for and was granted legal
representation. The hearing was therefore adjourned to a date to be
fixed in order for the applicant and the Governor to instruct their
legal representatives. On 28 November the Governor's legal
representative advised him that there was insufficient evidence to
proceed with the charge, as the probation officer concerned was not
prepared to give evidence, apparently because she felt her position of
independence within the prison would be compromised by being seen to
give evidence against a prisoner on behalf of the Governor. It appears
that the prisoner witness to the incident was also unwilling to give
evidence against a fellow prisoner. In those circumstances, the
Governor was advised to offer no evidence. The adjourned hearing of
the charge before the Board of Visitors was therefore arranged for
30 November 1989. The Governor offered no evidence against the
applicant and the Board of Visitors formally dismissed the charge.
The applicant was also the subject of separate disciplinary
proceedings relating to another incident of violence shortly before the
alleged hostage-taking incident. He was charged with assaulting a
prison officer by head-butting him in the chest on 17 August 1989.
This charge was dealt with by the Board of Visitors on 14 September.
The applicant pleaded guilty and was awarded 56 days' loss of
remission.
The applicant was located in the Segregation Unit at HM Prison
Wandsworth from 25 August 1989 (the date of the alleged hostage-taking
incident) until 5 December 1989 (5 days after his case was dismissed
by the Board of Visitors). The segregation was initially authorised
by the Governor pursuant to Prison Rule 48(2), which authorises the
segregation of prisoners, who are to be charged with an offence against
discipline, pending adjudication. Although this power would arguably
permit segregation until the final determination of a disciplinary
charge (i.e. in this case the Board of Visitors' hearing on 30 November
1989) internal prison guidance states that the power should normally
only be used pending the Governor's initial hearing (i.e. in this case
26 August 1989).
From 26 August, the applicant's segregation was authorised under
Prison Rule 43 which permits removal from association where it appears
desirable to the Governor for the maintenance of good order or
discipline. At the relevant time Rule 43 provided that the Governor's
decision on segregation was to be authorised by a member of the Board
of Visitors within 24 hours. Internal guidance provided that authority
could initially be obtained by telephone. Although there is no
evidence that such authority was given in this case, it was normal
practice at HM Prison Wandsworth at the time to obtain such authority.
Written authorisation from a member of the Board of Visitors was
obtained on 31 August 1989. Minutes of the Board of Visitors' meetings
reveal that the applicant's continued segregation pursuant to Rule 43
was authorised by them at their meetings on 21 September, 19 October
and 16 November 1989.
The solicitors representing the applicant in the disciplinary
proceedings (Messrs. Birnbergs) wrote to the Governor on 2 November
1989 querying the need for the applicant's continued segregation under
Rule 48(2). The Governor replied on 7 November giving the impression
that the applicant was still being segregated under that Rule because
of the serious nature of the charge against him. He also stated that
efforts were being made to transfer the applicant to another prison
where he could be on normal location, but more closely supervised than
was possible at HM Prison Wandsworth outside the Segregation Unit.
Efforts by the prison authorities to transfer the applicant to an
alternative prison were not successful.
The applicant also contacted his Member of Parliament, Mr. David
Evennett, about the fact and conditions of his segregation.
Mr. Evennett wrote to the Governor on 15 November and received an
erroneous reply dated 1 December 1989 giving the date of commencement
of segregation as 18 September (rather than 25 August) and giving the
impression that disciplinary proceedings were still pending, whereas
they had in fact been dismissed the previous day. Again the reason for
the applicant's segregation was expressed to be the seriousness of the
allegation against him in pending disciplinary proceedings.
Whilst the applicant was removed from association in the
Segregation Unit he was not allowed to communicate or associate with
any other inmates in the prison. As a result he was locked in a single
cell for 23 hours a day with two 30 minute exercise breaks in an
individual pen, the size of a tennis court.
He left his cell on at least three occasions a day in order to
empty his chamberpot, as there was no in-cell sanitation. However, if
he rang his cell bell he could also leave his cell on other occasions
during the day to use the toilet facilities if staff were available.
He took a shower and collected a change of clothing once a week. A
change of socks and underpants was provided twice a week. The
applicant had frequent contact with prison officers and was visited in
his cell each day by the Governor and at least weekly by a member of
the Board of Visitors. He could have attended religious services on
a weekly basis and in fact attended twice during the period of which
complaint is made. A Roman catholic and an Anglican chaplain also
visited the Unit frequently. The applicant saw and spoke to both of
them. He was able to send and receive letters on the same basis as
prisoners on normal location. He sent 33 letters in the relevant
period and received 32 replies.
His situation differed from those who were in the Segregation
Unit serving a sentence of cellular confinement in that he was able to
receive visits from friends and relatives. Between 25 August and
2 December 1989 the applicant received seven visits outside his cell
of approximately 40 minutes each from his family. He received a
further four visits from probation officers and two visits from his
solicitor during this period. He had access to newspapers, books and
his own radio. Prison records also disclose that he had a personal
stereo in his cell from 12 October 1989 onwards. His cell would have
contained a bed, mattress, chair and table.
A doctor visited the Segregation Unit each day. Had the
applicant requested to see the doctor, that request would have been
granted. The applicant was examined or seen by a medical officer five
times during his location in the Unit. There is no record of any
complaint that his physical or mental health was being adversely
affected by the conditions of his imprisonment.
The applicant complained to the prison authorities about his
removal from association with other prisoners and, in particular, the
prohibition on talking to other inmates in the exercise yard.
On 18 January 1990 the Home Secretary replied to the applicant's
petition in the following terms:
"The Secretary of State has fully considered your petition but
can find no grounds for taking any action in regard to it.
Inmates on exercise at HMP Wandsworth are not prevented from
talking to each other. However, it is not permitted to talk to
inmates on other exercise yards, those in-cell on wings
overlooking the exercise yard or those in-cell on punishment."
A more detailed response was provided by the Chairman of the
prison's Board of Visitors in a letter to the applicant dated
24 January 1990:
"I can assure you that at no time were you prevented from seeing
the full panel of the Board of Visitors. I saw you most weeks
while you were in the Segregation Unit and also did a member of
my Board. When you raised any problem I dealt with it to your
satisfaction at the time.
You were not permitted to talk while on exercise for two reasons,
namely because you were shouting to inmates on other floors and
also for your own good to prevent you from speaking to two
inmates who were trying to persuade you to act against good order
and discipline.
Prisoners are kept in the Segregation Unit while awaiting
adjudications on a serious charge partly so that they are
prevented from influencing witnesses and partly for their own
safety..."
Guidance is issued by the Home Secretary to those responsible for
day-to-day administration of the prison service about the segregation
of prisoners. This guidance suggests that the fact and the reasons for
a prisoner's segregation should be recorded on his personal record and
on the adjudication sheet relating to dsiciplinary charges. However
neither of these documents record the fact of the applicant's
segregation or the reasons for it. The guidance further states that
both Governors and Boards of Visitors should be particularly careful
to consider whether segregation for a long period is continuing to
serve the purpose for which it was originally intended and whether the
risks of placing the prisoner on normal location have receded. While
there is no documentary evidence that this guidance was complied with,
the applicant was visited by the Governor of the prison each day and
by a member of the Board of Visitors on average twice each week during
his stay in the Segregation Unit.
In April 1989 the Chief Inspector of Prisons visited Wandsworth.
In his report of June 1989 he made various criticisms of the regime and
conditions in that prison, including the fact that some officers were
wearing unofficial badges and had slashed the peaks of their caps,
which may have had racist overtones. In his concluding recommendations
he commented that the regime at Wandworth "does not meet basic
standards of humanity and propriety; urgent steps should be taken to
improve the regime, which cannot be described as helping inmates to
lead law-abiding and useful lives in custody".
A further report in part criticising the conditions at Wandsworth
Prison was made in March 1991 by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
The Committee concluded "that the conditions of detentions ... were
very poor ... There was a pernicious combination of overcrowding,
inadequate regime activities, lack of integral sanitation and poor
hygiene. In short, the overall environment in which the prisoners had
to lead their lives amounted, in the CPT's opinion, to inhuman and
degrading treatment."
The applicant modified his application to the Commission to
embrace the criticisms made in these two reports and the parties
provided the following further information on the subject:
The applicant was on his own in a cell measuring three by two
metres with a high ceiling. (Prior to his segregation he had also been
located in a single cell.) It had a window which the applicant could
open. There was a reinforced cardboard table and chair and a metal
framed bed, the bedding of which was taken out of the cell during the
day. The cell was lit by an electric light which could be turned on
and off by the applicant. There were cockroaches in the Segregation
Unit and a pest control firm visited it twice to deal with them. The
applicant was allowed to keep personal possessions in his cell such as
writing materials, drawing books and photographs. He received the
normal basic pay of £1-£1.10 per week for non-working prisoners and
could place orders for personal items, such as batteries for his radio
and stereo, at the canteen. He had full access to the prison
complaints system.
The applicant alleges that the cell was cold, only being heated
by a water pipe. Although he saw no racist insignia being worn by the
prison officers with whom he came into contact, he claims to have felt
racist contempt towards him in their general attitude by reason of his
Asian looks. Following the report of the Chief Inspector of Prisons,
prison staff were forbidden to wear any unofficial insignia in
September 1989.
A medical officer was available at all times if needed. However
access to the dentist was difficult due to Wandsworth's overcrowding
at the time. It may be that the applicant was unable to get a dental
appointment.
The Government informed the Commission that a considerable
rebuilding scheme is underway at Wansworth Prison which will include
in-cell toilets.
B. The relevant domestic law and practice
The treatment of convicted prisoners is governed by the Prison
Rules of 1964, as amended, made under the Prison Act 1952. These Rules
are supplemented by Standing Orders and Circular Instructions made by
the Secretary of State which set out the detailed practice to be
followed in applying the Rules.
Disciplinary proceedings
Prison Rule 47 sets out prisoners' offences against discipline.
These include assault, detaining a person against his will,
intentionally endangering the health or personal safety of others, and
attempting to commit any offence. Rule 48 provides (in part) that any
disciplinary offence is to be charged as soon as possible, and in any
event within 48 hours, and that each charge is to be inquired into, in
the first instance by the Governor. Rule 50 sets out the punishments
available to the Governor where he decides to deal with the matter
himself. Rule 51 provides that where the Governor decides that, if the
prisoner were found guilty, the punishments available to him would be
inadequate given the nature and circumstances of the offence, he may
refer the charge to the Board of Visitors.
Standing Order 3D provides that, where a prisoner is suspected
of a serious offence against the criminal law, the Governor should
adjourn the disciplinary charge after the initial hearing under Rule
48 and refer the matter to the police. If the Crown Prosecution
Service subsequently decide not to prosecute, the Governor should
proceed with the adjourned hearing and decide whether to refer the
matter to the Board of Visitors.
Board of Visitors
The Board of Visitors of each prison is an independent body
appointed by the Secretary of State under Prison Rule 92. Boards
currently exercise a disciplinary function under Rule 52 in cases
referred to them by the Governor. They may hold hearings on
disciplinary charges and may grant adjournments and grant legal
representation to prisoners appearing before them. On finding a
prisoner guilty they may impose a range of punishments. Boards of
Visitors have other functions under Prison Rules 92 to 97 which include
satisfying themselves as to the treatment of prisoners, hearing any
complaint or request a prisoner wishes to make and enquiring into any
report made to them that a prisoner's mental or physical health is
likely to be injuriously affected by any conditions of his
imprisonment.
Segregation
The Governor has power to segregate a prisoner pursuant to Prison
Rule 48(2). This Rule provides: "A prisoner who is to be charged with
an offence against discipline may be kept apart from other prisoners
pending adjudication". This Rule is supplemented by Circular
Instruction 25/1989 which states that segregation pending adjudication
under Prison Rule 48(2) is only appropriate up until the Governor's
initial hearing. After that time, if segregation is necessary, it must
be authorised under Prison Rule 43. The Circular Instruction provides
that "Governors and Board Members should be particularly careful to
consider whether segregation for a long period, for example pending a
Board of Visitors' hearing, is continuing to serve the purpose for
which it was originally intended and whether the risks of placing the
prisoner on normal location (of collusion or intimidation for
instance), have receded." This advice is reinforced by paragraph 4.16
of The Manual on Adjudications issued to Governors and Boards of
Visitors which advises Boards to consider whether continued segregation
is necessary on adjourning a hearing and reminds those involved that
the decision to continue segregation should be noted on both the record
of the adjudication and the prisoner's personal record.
The Governor also has a power to segregate prisoners pursuant to
Prison Rule 43 which at the relevant time provided as follows:
"(1) Where it appears desirable, for the maintenance of good
order or discipline or in his own interests, that a prisoner
should not associate with other prisoners, either generally or
for particular purposes, the Governor may arrange for the
prisoner's removal from association accordingly.
(2) A prisoner shall not be removed under this Rule for a period
of more than 24 hours without the authority of a member of the
Board of Visitors, or of the Secretary of State. An authority
given under this paragraph shall be for a period not exceeding
one month, but may be renewed from month to month.
(3) The Governor may arrange at his discretion for such a
prisoner as aforesaid to resume association with other prisoners,
and shall do so if in any case the medical officer so advises on
medical grounds."
During the period of the applicant's segregation, Prison Rule 43
was supplemented by Circular Instruction 15/1974. This Circular
Instruction makes it clear at paragraph 8 that authority for
segregation for longer than 24 hours must be obtained from a member of
the Board of Visitors or the Secretary of State. Telephone
authorisation is acceptable but written confirmation should be obtained
within a further 24 hours. A copy of the authorisation is to be placed
with the prisoner's personal record which should be annotated with the
fact of and reasons for his segregation. The Circular Instruction
further states: "It is important that an adequate description of the
reasons for segregation should be given. It is not sufficient merely
to record ... 'for good order and discipline'. Some account of the
circumstances is required." Paragraph 9 of the Circular Instruction
provides that continued authority for segregation under Rule 43 beyond
one month should be recorded on the prisoner's personal record and
countersigned by a member of the Board of Visitors.
The Government concede that there was some uncertainty as to
which Prison Rule was relied upon to justify the applicant's period of
segregation. The formal authorisations indicate that Rule 43 was
relied on, but the correspondence from the Governor and Board of
Visitors suggest that they had Rule 48 in mind. The Government accept
that a more detailed record should have been kept of the reasons for
segregating the applicant at the relevant time and that the decisions
to segregate him, whilst justified on the facts, may have been
procedurally flawed.
Association with other prisoners
Prison Rule 27 provides that, subject to specified exceptions,
all prisoners not engaged in outdoor work are to be given one hour's
exercise each day. The nature of the facilities available for exercise
varies between one institution and another and each prison has internal
regulations about the taking of exercise. There is no general
prohibition on speaking during exercise. Local rules at HM Prison
Wandsworth may have been interpreted in the past as prohibiting those
exercising from speaking to those in other exercise yards. The Area
Manager for that prison has now made it clear that inmates may speak
to each other on exercise (whether or not in the same yard) provided
their behaviour is not disruptive or abusive.
Remedies available to prisoners
Prisoners with grievances about the place of their detention or
its conditions have various remedies available to them. They may
complain to the Governor or the Board of Visitors within the prison
both of whom have a statutory duty to consider speedily requests and
complaints made to them. At the relevant time, prisoners could also
petition the Secretary of State directly or enlist the aid of their
Member of Parliament. In appropriate cases, prisoners can also seek
legal redress in the United Kingdom courts. Prisoners are entitled to
obtain advice from independent lawyers. Free legal aid is available
for litigation, subject to the legal aid authorities being satisfied
as to the applicant's means and the merits of his case. Legal redress
may be sought in an action in tort or by way of judicial review.
COMPLAINTS
The applicant's complaint is that segregation of the kind he has
experienced constitutes inhuman and degrading treatment contrary to
Article 3 of the Convention. He contends that the refusal to allow him
to associate or communicate with other inmates was in breach of this
provision. This complaint under Article 3 was modified during the
proceedings before the Commission to include his general conditions of
detention. He also complains that his treatment by the prison
disciplinary system was in breach of Article 6 para. 1 of the
Convention. This was borne out by the allegedly extensive delay in the
proceedings without any evidence being brought against him ultimately.
Finally he complains that his removal from association with other
prisoners was in breach of Article 11 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 January 1990 and registered
on 5 December 1990. After a preliminary examination of the case by the
Rapporteur, the Commission considered the admissibility of the
application on 2 September 1991. It decided, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit their written observations on admissibility and merits. The
Government's observations were submitted on 7 February 1992, after two
extensions of the time limit fixed for this purpose. The Commission
granted the applicant legal aid on 21 February 1992. The applicant
replied on 29 April 1992. In his reply the applicant abandoned a
complaint that the disciplinary proceedings were in breach of Article
6 para. 3 (b) of the Convention.
On 31 August 1992 the Commission decided to hold a hearing of the
parties on the applicant's complaint under Article 3 of the Convention.
On 20 January 1993 the applicant's representative submitted a pre-
hearing brief and documents. The hearing was held on 16 February 1993.
The applicant was represented by Mr.T Bancroft, Solicitor. The
Government were represented by their Agent, Mrs.D. Brookes, Mr.J.
Eadie, Counsel, and Ms.R. Davies and Mr.E. Tullett, as advisers.
THE LAW
1. The applicant's principal complaint is that his removal from
association with other prisoners for 14 weeks pending disciplinary
proceedings against him constituted a violation of Article 3 (Art. 3)
of the Convention, which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The applicant concedes that the prison authorities did not act
improperly by segregating him initially and in referring his alleged
involvement in the hostage-taking incident to the police. However once
the police had declined to prosecute the applicant, it was not right
to then pursue disciplinary proceedings, given that the burden of proof
would have been the same for either a criminal or disciplinary
prosecution. He submits that the Board of Visitors are not competent
to deal with these kinds of serious allegations. In the circumstances
the applicant claims that the Board of Visitors should have dismissed
the disciplinary charge against him on or before 4 October 1989 and
that the extensive delay for another two months was unjustified.
During that time the applicant alleges that he was segregated
from other prisoners without the requisite legal authority, in total
disregard of the Secretary of State's guidelines and the applicant's
human rights. If those guidelines had been followed the deprivation
suffered by the applicant would not have happened. He contends that
being left in a cell 23 hours a day with a chamberpot, and having to
empty it, is in itself degrading treatment contrary to Article 3
(Art. 3) of the Convention. Association with other prisoners, friends
and equals cannot be compared to association with prison professionals.
He claims that the conditions of his segregation taken as a whole, as
well as the poor general conditions in Wandsworth Prison, caused him
very considerable distress and suffering which he managed to bear with
fortitude without any significant damage to his physical and mental
health. He contends that he would have had no prospect of successfully
suing the prison authorities in negligence or applying for judicial
review, and without such prospects of success legal aid would not have
been forthcoming. Finally, he submits that his segregation for so long
was unjustifiable, for on the facts less strong measures would have
been appropriate, such as transfer to another prison. Overall, the
treatment he received whilst segregated was inhuman and degrading
contrary to Article 3 (Art. 3) of the Convention.
The Government refute the applicant's claims. First they contend
that the applicant has not exhausted domestic remedies by way of an
application for judicial review. Secondly they submit that the
applicant's segregation did not cause him suffering contrary to Article
3 (Art. 3) of the Convention. Having regard to the justifiable
circumstances which led to his removal from association with other
prisoners, the human contact he had with professionnal advisers, the
Board of Visitors and his family, the many letters he wrote and
received, the access he had to books, newspapers radio and stereo, the
absence of any evidence that his health suffered in any way, the
Government take the view that the applicant's allegations are without
foundation. They also state that there is no evidence of any racist
discrimination against the applicant.
The Commission does not find it necessary to decide whether the
applicant has exhausted domestic remedies in accordance with Article
26 (Art. 26) of the Convention, as the applicant's complaints are
otherwise inadmissible for the reasons elaborated below.
The Commission refers to its case-law that the segregation of a
prisoner from the prison community does not in itself constitute a form
of inhuman or degrading treatment. Whilst prolonged removal from
association with others is undesirable, whether such a measure falls
within the ambit of Article 3 (Art. 3) of the Convention depends on the
particular conditions of its application, including its stringency,
duration and purpose, as well as its effects on the person concerned
(No. 10263/83, R. v. Denmark, Dec. 11.3.85, D.R. 41 p. 149, at p. 153
with further references).
The Court has held that "ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3). The assessment of this minimum is, in the nature of things,
relative ..." (Eur. Court H.R., Ireland v. the United Kingdom judgment
of 18 January 1978, Series A no. 25, p. 65, para. 164). As regards
degrading treatment the Court was of the view that "in order for a
punishment to be 'degrading' and in breach of Article 3 (Art. 3), the
humiliation or debasement involved must attain a particular level and
must in any event be other than the usual element of humiliation"
associated with imprisonment after a criminal conviction. An
examination of such matters, being relative, "depends on all the
circumstances of the case and, in particular, on the nature and context
of the punishment itself and the manner and method of its execution"
(Eur. Court H.R., Tyrer judgment of 25 April 1978, Series A no. 26, p.
15, para. 30). Thus the gravity and absolute prohibition on ill-
treatment in breach of Article 3 (Art. 3) have led the Convention
organs to set the Article 3 threshold at very serious and severe ill-
treatment.
The Commission notes that the applicant was prevented from
communicating with other prisoners pending investigation of serious
disciplinary charges against him for attempting to kidnap a probation
officer. Even though the charges were subsequently withdrawn, there
is nothing in the case-file to suggest that an investigation was not
necessary or that the purpose behind the applicant's removal from
association was not legitimate. The applicant himself concedes this.
Moreover the applicant does not allege that his segregation had any
effect on his physical or mental health. His segregation did not
amount to complete sensory and social isolation which could have
undermined his personality. He received several visits from relatives,
the prison chaplains, his solicitor and probation officers, as well as
regularly daily contact with the prison officers. He could also read
books and newspapers, listen to the radio and his personal stereo, and
write and receive letters. There is no evidence to substantiate his
feeling that the prison officers were dealing with him in a racially
discriminatory manner.
The Commission also notes that the general conditions of
detention at Wandsworth Prison were strongly criticised by the
Government's own Chief Inspector of Prisons and by the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment. The applicant subsequently modified his
complaint under Article 3 (Art. 3) of the Convention to encompass these
criticisms. The Commission does not doubt that the conditions in
Wandsworth Prison, involving overcrowding, a lack of activity, a lack
of integral sanitations and poor hygiene, were extremely unsatisfactory
and that they were in urgent need of improvement. The Government
recognise this and informed the Commission of a rebuilding scheme to
include in-cell sanitation. This is to be welcomed. However, the
Commission is only competent to deal with the case it has before it,
not the general situation of prisoners at Wandsworth. The applicant
in the present case cannot complain of overcrowding because throughout
his stay at Wandsworth he was in a single cell. This fact must have
reduced the difficulties created by the lack of integral sanitation in
the cell. Moreover the poor general conditions are not the basis of
the applicant's main complaint about his removal from association from
other prisoners.
Having regard to the circumstances of the present case as a
whole, the Commission finds that the treatment the applicant received
during the 14 weeks in which he was removed from association with other
prisoners did not amount to the severe ill-treatment proscribed by
Article 3 (Art. 3) of the Convention.
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 next complains of a breach of Article 6 para. 1
(Art. 6-1) of the Convention, the relevant part of which provides as
follows:
"1. In the determination ... 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 ..."
He submits that once it was decided not to prosecute him in the
criminal courts, on or about 23 September 1989, all proceedings against
him should have been immediately discontinued. The fact that they were
not discontinued for over two months constitutes extensive delay within
the meaning of Article 6 (Art. 6). The argument that the matter was
proceeding before the Board of Visitors between 23 September 1989 and
5 December 1989 is flawed since in this particular instance the Board
of Visitors was not a competent court within the meaning of
Article 6 (Art. 6).
The Commission did not seek the Government's observations on this
aspect of the applicant's claim, but the Government anyway deny that
any issue arises under Article 6 para. 1 (Art. 6-1) of the Convention
in the present case.
The Commission recalls the constant case-law of the Convention
organs that in principle Article 6 (Art. 6) of the Convention does not
apply to disciplinary proceedings, unless, having regard to the
autonomy of the concept "criminal charge", a disciplinary offence
belongs, by its very nature and the degree of severity of the penalty,
to the criminal sphere (Eur. Court H.R., Engel and Others judgment of
8 June 1976, Series A no. 22, pp. 33-35, paras. 80-82, and Campbell and
Fell judgment of 28 June 1984, Series A no. 80, pp. 34-38, paras. 66-
73).
The Commission notes that the circumstances which gave rise to
the disciplinary proceedings in the present case - allegations of the
applicant's involvement in taking a probation officer hostage - could
have been the subject of both criminal and prison disciplinary
proceedings. Criminal proceedings were not initiated by the police,
but the applicant risked a heavy disciplinary penalty of substantial
loss of remission of his sentence if the disciplinary case had been
proved against him. It is, therefore, arguable in the circumstances
that Article 6 para. 1 (Art. 6-1) of the Convention was applicable to
the proceedings before the Board of Visitors as, in substance, the
disciplinary charge against the applicant amounted to a criminal charge
within the meaning of this Convention provision.
As to compliance with Article 6 para. 1 (Art. 6-1) of the
Convention, the applicant's principal complaint concerns the length of
the disciplinary proceedings against him. However, the Commission
considers that the 14 week period in which the police and prison
authorities investigated the case consecutively, but then discontinued
it, was not unduly lengthy in the circumstances. The Commission also
notes that it was not until early October 1989 that the applicant
applied for and was granted legal representation for the disciplinary
proceedings. Thereafter the legal representatives of both parties, the
applicant and the prison Governor, needed time to take instructions.
The Commission concludes that the present case discloses no appearance
of a violation of Article 6 (Art. 6) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, the applicant complains that his removal from
association with other prisoners constituted a breach of Article 11
(Art. 11) of the Convention, the relevant part of which reads as
follows:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society ... for the prevention of disorder or
crime ..."
He contends that if the authorities were concerned that his
association with other prisoners might have hampered the investigation
of evidence for the disciplinary proceedings, then he should have been
transferred to another prison where association would have been
possible. His removal from association had no justification under the
second paragraph of Article 11 (Art. 11).
The Commission did not seek the Government's observations on this
aspect of the applicant's claim, but the Government submit that the
applicant's complaints about association with other prisoners do not
fall within the ambit of Article 11 (Art. 11) of the Convention.
The Commission refers to the language of Article 11 (Art. 11)
which suggests that the concept of freedom of association, of which the
right to form and join trade unions is a special aspect, is concerned
with the right to form or be affiliated with a group or organisation
pursuing particular aims. It does not concern the right of prisoners
to share the company of other prisoners or to "associate" with other
prisoners in this sense (No. 8317/78, McFeeley and Others v. the United
Kingdom, D.R. 20 p. 44, at pp. 97-98, paras. 112-115). Consequently
the Commission agrees with the Government and concludes that this
complaint must be rejected under Article 27 para. 2 (Art. 27-2) as
being incompatible ratione materiae with the provisions of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy