AS TO THE ADMISSIBILITY OF
Application No. 23995/94
by Elizabeth DOWD and Bridget McKENNA
against the United Kingdom
The European Commission of Human Rights sitting in private on
28 November 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
Mr. M. DE SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 February 1994
by Elizabeth DOWD and Bridget McKENNA against the United Kingdom and
registered on 28 April 1994 under file No. 23995/94;
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 1914 and resident
in Kerry. The second applicant also an Irish citizen was born in 1952
and is resident in Kerry. The applicants have had a previous
application before the Commission, No. 21596/92, declared inadmissible
on 1 September 1993.
The applicants are represented before the Commission by Ms.
Mairin Higgins of the Irish Prisoners' Support Group, London.
The facts as submitted by the applicants, and as may be deduced
from the documents, may be summarised as follows.
a. Particular circumstances of the case
The first applicant is the mother and the second applicant the
sister of Brendan Dowd who was arrested in 1975 in England and
convicted in relation to Republican-associated offences for which he
received 3 discretionary life sentences. He is detained as a Category
A (High Risk) prisoner.
By petition dated 19 February 1991, Brendan Dowd, who was born
in Ireland, requested that he serve his prison sentence in Northern
Ireland in order to be near his family and friends who almost all
reside in Ireland.
This request for transfer was refused by the Secretary of State
on 12 February 1992 on the ground that Brendan Dowd fell outside the
requisite criteria for a transfer since he had no links with Northern
Ireland and did not intend to settle there on release.
Further petitions were made on 18 and 19 March 1992. By response
dated 9 April 1992, Brendan Dowd was again refused on the basis that
he had no links with Northern Ireland and had no intention of settling
there. Brendan Dowd made further requests for transfer in March 1993
By letter dated 5 July 1994, the Home Office informed Brendan
Dowd that his request for permanent or temporary transfer to Northern
Ireland was refused on the basis that his family was not resident there
and that he would benefit on transfer from a substantial reduction in
the time served in prison.
The first applicant is now 80 years old and suffers, inter alia,
from diabetes, arthritis and a leg ulcer which renders her unable to
walk without difficulty. She has suffered 30% loss of eyesight and
received medical advice that the journey to England to visit her son
would adversely affect her health. She continued nonetheless to visit
until, after a visit in July 1991, she was forced to accept that it was
no longer possible. The first applicant also received no financial
assistance for visits which cost approximately £500 each.
The second applicant has visited her brother in prison twice
since his arrest. She suffers from a severe form of travel sickness
which leaves her ill for days after an air or sea journey and therefore
renders her unable to visit save in the most compelling circumstances
as for example in 1981 after their father's death.
Problems with regard to visiting are exacerbated by the policy
of transferring Republican prisoners regularly and without notice from
prison to prison throughout the British mainland. Brendan Dowd has been
transferred 13 times.
b. Relevant domestic law and practice
Following an interdepartmental review, a report was issued on 23
November 1992 concerning the issue of transfers of prisoners to
Northern Ireland prisons. Its recommendations, which were accepted and
submitted to Parliament, stated that a system of extended temporary
transfers would be instituted.
Since late 1993, a number of prisoners who previously lived in
Northern Ireland, including those of Category A classification, have
been transferred on a temporary basis from prison in mainland United
Kingdom to prison in Northern Ireland.
COMPLAINTS
1. The applicants complain of the refusal to transfer Brendan Dowd
to a prison in Northern Ireland. Almost all his family reside in
Ireland and the cost and difficulty of travelling to mainland United
Kingdom is prohibitive. Visitors have to travel over 1000 miles, find
accommodation and transport to the prison which, if remote and
inaccessible, requires the use of taxis. No State assistance is given
for prison visits to England to see Brendan Dowd. The estimated cost
of a visit by the first applicant was £500. The trip for the first
applicant was arduous and gruelling and now it is unlikely that she
will see her son again while he is held in mainland United Kingdom.
The applicants submit that there is no reasonable justification
for the refusal of transfer: there is plenty of accommodation in
Northern Irish prisons; in view of recent transfers of Category A
prisoners, security considerations cannot justify refusing transfer
Brendan Dowd and if he was transferred he would not benefit from the
different rules of remission since he is a life prisoner.
The applicants invokes Article 8 of the Convention in respect of
the above.
2. The applicants complain of discriminatory treatment on the ground
of Brendan Dowd's status as an Irish Republican prisoner. They submit
that there have often been transfers of Category A prisoners who are
not Republicans and the use of Category A is constant in the case of
Repubicans. The constant amendment of the applicable transfer criteria
discloses a policy of blanket refusal of transfers for Republicans.
3. The applicants complain that the refusal of transfer is an
additional punishment above the sentence imposed by the courts and
amounts to inhuman and degrading treatment contrary to Article 3 of the
Convention.
4. The applicants finally invoke Article 13 of the Convention,
alleging that they have no effective remedy in respect of their
complaints.
THE LAW
1. The applicants complain of the refusal to transfer Brendan Dowd,
their son and brother respectively, to a prison in Northern Ireland
which would facilitate their visits and the maintenance of their family
relationships. They invoke 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 it considered a previous complaint
by the applicants in No. 21956/93 which related to the refusal of
transfer. In its decision dated 1 September 1993, the applicants'
complaints under Articles 8 (Art. 8) of the Convention were rejected
as manifestly ill-founded. However, pursuant to Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention, the Commission must reject any
petition which is substantially the same as a matter which has already
been examined unless it contains relevant, new information.
The Commission notes that the applicants make the same complaints
and rely on the same facts as contained in the earlier application.
Other additional facts and arguments are also included, in particular,
the recent adoption of a policy of transferring prisoners, even of
Category A security classification, to Northern Ireland on a temporary
basis. The applicants argue, inter alia, that this indicates that the
alleged security justification for refusing transfers to Irish
Republican prisoners cannot be maintained, and point out that temporary
transfers involve moving the prisoners there and back.
The Commission finds however that the matters raised by the
applicants do not constitute relevant, new information within the
meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention
having regard to the grounds on which the Commission declared the
applicants' previous complaints inadmissible.
It follows that the applicants' complaints must be rejected as
substantially the same pursuant to Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention.
2. The applicants complains of discriminatory treatment as relatives
of a Republican prisoner.
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 recalls that it dismissed a previous complaint
under this provision in the applicants' earlier application (No.
21596/93). As above, the applicants have referred to alleged new facts
and arguments challenging the reasoning in the Commission's previous
decision which referred to security considerations in finding that
Brendan Dowd could not be considered in an analogous position to other
prisoners for the purposes of Article 14 (Art. 14) of the Convention.
The applicants complain that as a Republican prisoner Brendan
Dowd, and thereby themselves as his relatives, have been punished as
regards the policy of transfers. It is alleged that, save for rare and
special cases, there was a blanket refusal on transfers of Republican
prisoners whereas non-Republican prisoners, even of Category A status,
would generally be granted transfers to and from Northern Ireland.
The Commission notes that these allegations were made in
substance in the applicants' previous application. In these
circumstances, the Commission is not satisfied that the applicants'
arguments concerning discrimination constitute relevant, new
information within the meaning of Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention.
It follows that the part of the application must be rejected as
being substantially the same pursuant to Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention.
3. The applicants complain that the refusal to transfer amounts to
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 case-law of the Convention organs establishes that ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3) of the Convention. Further, the
Court has held that the suffering occasioned must attain a certain
level before treatment can be classified as a inhuman. The assessment
of that minimum is relative and depends on all the circumstances of the
case, such as the duration of the treatment and its physical or mental
effects (see eg. Eur. Court H.R., Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).
The Commission has examined the complaint as submitted by the
applicants. It finds that it fails to disclose treatment of such
severity as to fall within the scope of Article 3 (Art. 3) of the
Convention. It follows that this part of the applicantion must be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicants also invoke Article 13 (Art. 13) of the
Convention, which provides that :
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls however that Article 13 (Art. 13) 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 finds that the applicants cannot be said, in light
of its findings above to have an "arguable claim" of a violation of
their Convention rights.
It follows that this complaint must be dismissed 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.
Deputy Secretary to the Commission President to the Commission
(M. DE SALVIA) (C.A. NØRGAARD)
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